Shrimp-Turtle A Case For Developing Countries Presented by Suman kumar- (164) Vijay Soni- (102) Nikunj sharma- (143)
Shrimp-Turtle A Case For Developing Countries
Presented bySuman kumar-(164)Vijay Soni-(102) Nikunj sharma-(143)
(a)
• Why Did US Demand TED?• TED – Alternative
(b)
• Where US flouted rules• Other such cases
(c)
• Defense by Developing Countries• WTO Rulings & Implications
(d)
• Conclusion
Agenda
1973 Endangered Species Act is approved
1987 Voluntary guidelines are issued for including turtle exclusionary devices
1989 & 1991
Legislation is negotiated to protect all sea turtles in American waters, including Central America and the Caribbean.
1996A full prohibition of all shrimp from any country that does not have sufficient precautions and regulatory measures
The Past…
The Problem
It prohibited the importation of any shrimp harvested using commercial fishing technologies that might harm sea turtles, unless the exporting country is certified by the U.S. administration as having a regulatory program to prevent incidental turtle deaths comparable to that of the United States or is certified as having a fishing environment that does not pose risks to sea turtles from shrimping.
where it adopted a program to require shrimpers to use TEDs on their boats; a country could take up to three years to phase in the comprehensive program; further guidelines, issued in 1993, extended somewhat the final deadline by which a foreign country must implement its program in order to be certified. In 1995, environmental NGOs challenged before the U.S. Court of International Trade (CIT) the decision of the State Department to limit the application of Section 609 to the greater Caribbean area, as well as certain other interpretations that the State Department had made of the law
Solution to the problem by USTED(Turtle Excluder Device)
systems
Setback for developing countries
Requirements Expensive and they will have to compromise on the cost / comparative advantage Time difference in implementation (implementation to be done within 4 months)
Preferential treatment for some countries (ACP countries the main beneficiary)
Apart from TED, the US did not accept alternative methods of ensuring lower mortality for turtles
India
Five of the seven species found in Indian coastal waters
The turtle considered an incarnation of Lord Vishnu
Indian Wildlife Protection Act (1972), Signatory of CITES since 1976
Orissa banned fishing, created sanctuaries, CMFRI operated a hatchery for sea turtles in Madras
Malaysia
Used hand retrieval nets
Sabah and Sarawak – Mating and Nesting areas
Active enforcing of fishery laws by the Department of Fisheries
Laws in place from 1932 (against killing of turtles), 1988 (Import / Export Prohibition)
The use of TED alone
could not absolutely ensure
the survival
of turtles
Pakistan
Culture - sinful to kill sea turtles
1950 - the Imports
and Exports
(Control) Act to
protect endangered species
Sindh Wildlife
Department
engaged in
protection programs
in conjunctio
n with WWF and
IUCN
Unacceptable
interference in policies
within Pakistan's sovereign
jurisdiction
Thailand
1947 - the Fisheries
Act prohibitin
g the catching,
harvesting or harming of any sea
turtle
Extensive sea turtle restoratio
n programs:
the Departme
nt of Fisheries,
the Departme
nt of Forestry, and the
Royal Thai Navy
1967 to 1996, no observed sea turtle killing in
connection with
shrimping
Suggested in ASEAN meetings of March 1997 to
draft MOU jointly for
the protection
and conservation of sea
turtles
Is TED the only
option?
Not the only and most effective device
Not a “multilateral environmenta
l standard”
TED VS TSDNot for larger sea turtlesDebris
damaged TEDsIncreased transaction
costs
Ulterior Motives for US
Our tropical shrimps
had much more
demand than the
temperate shrimps in
the US market
The Asian countries had the
comparative
advantage of
providing shrimps at lower costs than were available
domestically
Protectionist
measures – saving its domestic industry
Adhering to richer lobbyists
representing
environmental and angling
interests
Complainants
India
Articles
GATT Article XI
US Legislation
Section 609 of Endangered Species Act (ESA)
Shrimp Turtle WTO Case
Dispute Settlement Process
Advantages
The system is based on clearly-defined rules, with timetables
Adoption not by consensus but adoption by rejection of consensus
Panelists chosen in consultation with the countries in dispute
Appellate Body Member are individuals unaffiliated to any Government
Oct 8th, 1996
4 nations (India, Malaysia, Pakistan & Thailand) jointly have consultations with the
U.S.
Nov 19th, 1996 Consultations held without resolution
Jan 9th – Feb 25th , 1997
India, Malaysia, Pakistan & Thailand request DSB to
establish a panel to look into the US embargo on import of
shrimp & shrimp products
April 15th, 1997 DSB establishes 3 member panel
April 6th, 1998 Panel issues final report and ruling
July 13th, 1998 US appeals against the panel’s ruling
Oct 1998 Appellate Body gives its final report
Case Timeline
Argument by Plaintiff Nations
Embargo of shrimp and
shrimp products was against the
MFN principle of
Art I.I of GATT
Ban imposed by the US
was inconsistent with Art XI of GATT (Art XI limits the
use of import prohibitions
or restrictions)
Ban imposed by the US
was in contravention of Art XIII.I as the ban restricted
importation of like
products
Argument by United States
US measures complied with the relevant
requirement of Art
XX
Measures to protect
sea turtles -
an endangered natural resource
Complainants did
not introduce effective shrimp /
turtle policies
US is in compliance with the
“WTO Agreemen
t”
Panel Ruling: April 6th, 1998
Appellate Body recommendation and
thereafter… 1• US and parties to the dispute reached
agreement on a 13 month compliance period which ended in December 1999
2
• The US Department of State guidelines for implementing Section 609 was revised and issued after providing notice and an opportunity for public comment
3
• US to provide financial and technical assistance (training in the design, construction, installation and operation of TEDs to any government requesting it)
4
• In October 2000, Malaysia requested the re-establishment of the original panel to examine whether the United States had in fact complied with the Appellate Body findings
5
• The implementation panel ruled in favor of the United States:•Appellate Body ruling was an obligation to negotiate•United States had indeed made serious “good faith” efforts to negotiate
A few disputes at the WTO…
What is patented ? : Basmati Rice lines & GrainsPatent holder : Texas based “Rice Tech Inc.”Patented in the name : “Texmati & Kasmati”Patented number : 5,663,484Date of patenting : Sept. 1997Patenting authority : US patentLegal Jurisdiction : InternationalOpposed by : GOI, Res. Foundation for
Science,TechnologyandEcologyPatent cancelled : June 2000?
CURRENT ISSUE- BASMATI PATENTING
With the Basmati patent rights, Rice Tec will now be able to not only call its aromatic rice Basmati within the US, but also label it Basmati for its exports
India and Pakistan will not only lose out on the 45,000 tons US import market, which forms 10 percent of the total Basmati exports
In addition, the patent on Basmati is believed to be a violation of the fundamental fact that the long grain aromatic rice grown only in Punjab, Haryana, and Uttar Pradesh is called Basmati.."
Impact On India
In June 2000 Agriculture and Processed Food Products Development Authority (APEDA) Under the Ministry Of Commerce filed a re-examination application contesting 3 claims of the patent.
So Company withdrew its claims on 4 points that relate to
trade of Basmati INDIA WON THE CASE BASED ON EOGRAPHICAL
INDICATIONS DURING JUNE 2000
INDIA WON……
What is patented? : Turmeric Patent holder : Researchers from the Mississippi University
(US) - 2NRI’s Patent no : 5,401,540 Date : March 1995 Patenting authority : US patent Legal jurisdiction : International Patenting authority: US patent Legal jurisdiction : International
TURMERIC PATENT
This case focuses on two interrelated issues highlighted by the turmeric dispute.
First, there is the specific issue of whether the use of turmeric in wound healing should have qualified as a patentable U.S. product –
Secondary it meets the legal criteria of "Novelty, Non-Obviousness, and Utility" - and what India's rights should be with regard to trading the herb bilaterally.
There are alleged weaknesses in U.S. patent law that discriminate against developing countries by failing to recognize products like turmeric as "non-novel," despite the fact that this medicinal plant and other traditional agro chemicals have been used in healing for thousands of years.
Case At a Glance…..
Inventions can only be patented if they satisfy three criteria: novelty — only inventions that are genuinely new, and not
part of existing knowledge, can be patented. non-obviousness — if the new invention is obvious, i.e.
anyone familiar with the subject could easily anticipate the invention, then it cannot be patented.
utility — the invention has to work in practice The turmeric case failed to meet the novelty criteria
Why was the patent withdrawn?
NEEM PATENT HOLDER W.R.GRACE OF NEWYORK AND DEPARTMENT OF AGRICULTURE.
PATENT NO : 04,36,257. DATE : 14-9-1994. PATENTING : EUROPEAN LEGAL JURISDICTION: INTERNATIONAL. USE : TO CONTROL FUNGI ON PLANTS BY
HYDROPHOBIC EXTRACTED FROM NEEM OIL. LEGAL OPPOSITION : JUNE 95
NEEM PATENT
The United States and India are currently involved in a bio piracy dispute over the rights to a tree indigenous to the Indian subcontinent, the neem tree. While the neem tree has been used in India for over 2000 years for various purposes such as pesticides, spermicides and toothbrushes,
US company has been suing Indian companies for producing the emulsion because they have a patent on the process.
The dispute is over the rights of companies to conduct research and development by using patents against the interest of the people who live at the source of the resource
The Issue….
India has won a 10-year-long battle at the European Patent Office (EPO) against a patent granted on an anti-fungal product, derived from neem.
In 2000 the case is revoke due to lack of prior existing knowledge
This case give the birth to the new term BioPiracy on march 09 Dr. Vandana Shiva said. "We gave
them evidence of farmers using this knowledge for a long time and also gave them information about the two scientists who had conducted research on neem before the patent had been granted
INDIA Wins Landmark Battle…
“Poor countries hold 40 per cent of the world's population, but receive only 3 per cent of the world's income from trade. Rich countries make up 14 per cent of world population and yet get 75 per cent of the income from trade”
Rich countries force poorer countries to sell the same products at lower prices than rich countries, by charging exporters many times more import tax simply because they live in a poor country
Devil in disguise - Developed Countries
Thank You!!!