Air Date: Week of September 26, 1997

In 1995, the U-S banned the import of all shrimp caught without turtle excluder devices. But, the ban might be in violation of international trade laws in the view of Thailand, Malaysia, India and Pakistan. They’ve appealed to the World Trade Organization to force the U-S to rescind the ban. Thailand already requires its shrimpers to use turtle excluder devices, so Steve Curwood asked Harvard Law Professor William Alford why the Thais joined in the case.

Transcript

CURWOOD: Shrimpers dredge up more than just shrimp. Turtles can get ensnarled in trawl nets and drown. Shrimp farmers in the US are required to fit their nets with turtle excluder devices, which allow turtles trapped in a trawl net to swim free. In 1995, the US banned the import of all shrimp caught without these devices, but the ban might be in violation of international trade laws. At least that's the view of Thailand, Malaysia, India, and Pakistan. They've appealed to the World Trade Organization to force the US to rescind the ban. Thailand already requires its shrimpers to use turtle excluder devices, so I asked Harvard Professor William Alford why the Thais joined in the case.

ALFORD: In the late 1980s the US brought a case to the GATT involving the Thai cigarette market, and we argued that the Thai market discriminated against foreign and in particular US cigarette exports. The US won that case. So there is the possibility that the Thai government here is bringing this in a tit for tat way to say to the US: You brought the GATT down upon us and we're bringing it down on you. The Thais haven't said that, but they do say we are doing this as a matter of principle under international trade.

CURWOOD: And the principle being?

ALFORD: The principle being that one country cannot reach out unilaterally to protect the global commons. If it wishes to protect the global commons, it should negotiate an international environmental agreement.

CURWOOD: How does this case compare to the brouhaha over tuna that we had a few years ago with Mexico? We wanted dolphin-safe tuna. The Mexicans said no, you can't require that, and took us in front of GATT.

ALFORD: In some ways it's quite similar to the tuna-dolphin cases. The GATT panel said that the United States could not block the importation of tuna caught by the Mexican fleet, and the argument there was there is nothing harmful about the tuna coming into the US. And therefore the United States had no authority, no jurisdiction, no right to reach beyond its borders to endeavor to control a harm that was happening far away. And there's something of an analogy, the people bringing this case would say, to the shrimp case. There's nothing in the shrimp themselves that is harmful; it's the way they're caught. It's the by-product, an effect of catching them without turtle excluder devices.

CURWOOD: So we could exclude the shrimp if we said that they were toxic and that some inappropriate pesticide or something had been used around them, and that it would be poisonous for us to consume them.

ALFORD: Yes, that's right. And I think we'd have a pretty good GATT argument there.

CURWOOD: How much is this shrimp issue a stalking horse for any larger issues? Are people looking here, at India, Pakistan, Malaysia, and Thailand? Are they looking to get an international precedent on a fairly small case for a bigger item on the agenda?

ALFORD: At some level I think that is the case. There is much talk about making the environment a focal point of the next major set of international trade liberalization negotiations. The US and the Europeans principally are behind this. And I think there's concern on the part of many of our developing country trading partners as to how sincere the US is about this. Partly concerns about crimping their development, and partly a sense that the US may be hiding a protectionist agenda in the rhetoric of the environment.

CURWOOD: Assuming the US loses this case, and it sounds like the rules say that the US is going to lose, what kind of precedent will it set?

ALFORD: The panels that are established under the World Trade Organization pursuant to the GATT rules do not themselves have a binding impact. Ultimately to change US law, the US government has to come back; in this particular case the Congress would most likely have to amend the Endangered Species Act. So we haven't sacrificed our sovereignty in that important sense, Steve; we still have this second bite at the apple, or at the shrimp if you will. But there is the broader, non-legal message that is sent if the US loses here, and that is that individual countries that are seeking to protect the global commons are going to get their hands slapped.

CURWOOD: Well, I want to thank you for taking this time with us.

ALFORD: Thank you very much, Steve. It's been a pleasure to talk with you.

CURWOOD: Bill Alford teaches international law at Harvard University Law School.