Ashriza Noor Hikmah 10/304788/HK/18556

In 1997 India, Malaysia, Pakistan and Thailand, acting jointly, requested consultations with the United States regarding the ban imposed upon importation of certain shrimp and shrimp products. The protection of sea turtles was at the core of the ban. All sea turtles that occur in US waters (five species) are listed as endangered or threatened species under the Endangered Species Act of 1973 (ESA). The ESA prohibits take of endangered sea turtles within the United States, within the US territorial sea, and the high seas, except as authorized. Take means harassment, hunting, capture, killing or attempting to do any of these. Under the act, the US required that US shrimp trawlers use turtle excluder devices (TEDs) in their nets when fishing in areas where there is a significant chances encountering sea turtles. Section 609 of US Public Law 101102, enacted in 1989, dealt with imports. It is said that shrimp that are caught with certain technology may not be imported to the US because it will effect certain sea turtles, unless the harvesting nation is certifies to have regulatory program and incidental takerate comparing to the US or any fishing environment of the harvesting nation did not pose a threat to sea turtles. Which means, countries that had any of the seven species of sea turtles within their jurisdiction, and harvested shrimp with mechanical means, had to impose on their fishermen requirements comparable to those borne by US shrimpers if they wanted to be certified to export shrimp products to the US. Essentially this meant the use of TEDs at all time. In its report, the Appellate Body made clear that under WTO rules, countries have the right to take trade action to protect the environment (in particular, human, animal or plant life and health) and endangered species and exhaustible resources). The WTO does not have to allow them this right. It also said measures to protect sea turtles would be legitimate under GATT article XX:
Subject to the requirement that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures:. (b) necessary to protect human, animal or plant life or health;

Ashriza Noor Hikmah 10/304788/HK/18556 (g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption;

The US lost the case not because it sue to protect the environment but because it discriminated among WTO members. It provided countries in the Caribbean, technical and financial assistance and longer transition periods for their fisherman to start using the TED while it did not give the same advantage to India, Malaysia, Pakistan and Thailand who filed the complaint to WTO.