WWF Amicus Brief to WTO: Shrimp-Turtle Dispute. Page

Transcription

1 WWF Amicus Brief to WTO: Shrimp-Turtle Dispute Page Contents Executive Summary 2 1. Introduction 4 2. Conservation Facts 5 3. Law and Policy International Law Multilateral Agreements on the Law of the Sea and Conservation Relevant Regional Agreements designed to protect sea turtles National Law and Policy Decisions of the International Court of Justice Precautionary Principle Treaty provision and Customary rule Reasonable and Appropriate Measures Good Faith Estoppel Obligations Arising Under the Convention on Biological Diversity Article XX of GATT Conclusion: Facts and Law Endnotes 40

2 WWF Amicus Brief to WTO Shrimp-Turtle Dispute Executive Summary WWF submits this amicus brief on the WTO Shrimp-Turtle dispute as a non-governmental organisation with offices and affiliates in countries around the globe, including in the Respondent and Complainant countries. The brief aims to ensure that the WTO Dispute Settlement System has before it both the scientific and other technical facts relevant to the conservation of sea turtles; and the relevant international, regional and national law and policy governing the conservation of sea turtles. These arguments underline the need for the establishment of an expert review group under Article 13 of the DSU to advise the Panel. The sea turtle species impacted by shrimp fishing in the Complainant countries are highly migratory species, and thus are part of the environment of other States, of areas beyond national jurisdiction and are part of the common heritage of humankind. Scientific research shows that they cannot be effectively conserved without protection of the sexually mature adult stages, including in waters around the coast line of the complainant countries, at considerable distances from these shore-lines and nesting beaches, and that current shrimp fishing practices in these habitats threatens these species1 survival. Turtle Excluder Devices (TEDs), the use of which is prescribed by the US measures, have been shown to be effective in conserving these sea turtle species. Studies and trials, including preliminary ones in the waters of at least two of the Complainant countries, have demonstrated this. TEDs have been shown to increase the efficiency of shrimp fishing trawls, can be manufactured locally at low cost, and are more practical and less complicated to implement than other conservation measures. The US has undertaken transfer of TED technology, and has invited cooperation of the Complainant countries under a multilateral process to protect these sea turtles, including through the use of TEDs. A general obligation arises from Customary international law, and can be derived from treaty law, that requires states to supervise and control activities within their jurisdiction that undermine the conservation status of endangered species. These obligations are derived from, among others, the 1972 Stockholm Declaration on the Human Environment, the

3 Convention on Biological Diversity (CBD), the Bonn Convention on Highly Migratory Species, the Convention on the International Trade in Endangered Species (CITES), and UN General Assembly resolutions. The harvesting of shrimp within and beyond national jurisdiction is also subject to international legal agreements, including the UN Convention on the Law of the Sea (UNCLOS). Regional agreements, including the ASEAN Agreement on the Conservation of Nature and Natural Resources, also contribute to international law which protects sea turtles. Decisions of the International Court of Justice demonstrate and display the existence of the general and specific rules referred to above, and reinforce the obligation of states to respect the environment of other states or of areas beyond national control (the Global Commons). National law and policy in all four Complainant countries recognises these international obligations to protect these turtles and their habitats, though implementation failures leave those countries in breach of these obligations. The current WTO Dispute Panel, and any future Appellate Body are obliged to have due regard to the body of international law as a whole, including international environmental law, according to the Vienna Convention on the Law of Treaties. The WTO Appellate Body in the Reformulated Gasoline (RFG) case (1996) recognised that GATT law cannot be read in clinical isolation from public international law. Furthermore, under the principle of estoppel states cannot assert rights under WTO law which are inconsistent with obligations to conserve sea turtles, or which prevent other states from fulfilling those same obligations. The WWF brief concludes that given the above facts and law, and particularly the RFG Appellate Body ruling, the environmental exception available under Article XX is sufficient to establish that the measures under dispute relate to conservation, are necessary, and are not arbitrary or unjustifiable.

4 1. Introduction The World Wide Fund For Nature - WWF intervenes in this dispute between states as a non-governmental organisation with offices and affiliates in countries around the globe, including in the Respondent and in the Complainants involved in this dispute. WWF s objective is to ensure that the WTO Dispute Panel has before it both the scientific and other technical facts relevant to the conservation of sea turtles; and the relevant international, regional and national law and policy governing the conservation of sea turtles. The letter and spirit of the WTO Dispute Settlement Understanding (DSU), and international law generally, compels the Panel and any Appellate Body to take these facts and laws into account when clarifying WTO Members rights and obligations. [Vienna Convention on the Law of Treaties, Article 31; WTO DSU, Articles 3.2 and 13]. 1.2 On the basis of the facts and law presented, WWF will demonstrate that: (i) all States have a general obligation to ensure that activities within their jurisdiction respect the environment of other States and of areas beyond the limits of national jurisdiction; (ii) sea turtles are a migratory species, and are thus part of the environment of other States and of areas beyond national jurisdiction and/or are part of the common heritage of humankind; (iii) international law recognises that sea turtles are endangered species and accordingly places the obligation on all States to protect them; (iv) furthermore, the Complainant States have, under various international agreements, undertaken the specific obligation to protect sea turtles; (v) the activities undertaken by the Complainants will contribute to the further endangerment of sea turtles, and are likely to lead to their extinction; and (vi) in the circumstances, the Respondent, and States generally, are entitled to take reasonable and proportionate trade-related measures to protect sea turtles.

5 1.3 In the course of its arguments, WWF seeks: (i) to draw to the attention of the panel, and in the event of an appeal, the Appellate Body, the relevance of international environmental law to the settlement of this dispute; (ii) to contribute its own reasoning in support of the argument that the US legislation may, on the facts of this case, benefit from the protection of the exception in Article XX(b) and (g); (iii) to adopt the reasoning of the Appellate Body in the Reformulated Gasoline Case and to reject entirely the reasoning of the Panel in the unadopted decisions known as the Tuna/Dolphin Panels; (iv) to demonstrate the utility of a formal right of intervention for non-governmental organisations in disputes before the WTO; (v) to display any additional scientific arguments demonstrating the correlation between shrimp fisheries and turtle mortality so as to maintain a level of protection for sea turtles which would ensure their survival in the wild; and (vi) to argue for the establishment of an expert review group under Article 13 of the DSU to advise the panel. 2. Conservation Facts 2.1 Seven species of sea turtles are listed as endangered. Five of these species occur in the complainant countries, and face extinction1. These species are all migratory. Legally a migratory species is one where a significant proportion of the numbers/population move cyclically and predictably across one or more national jurisdictional boundaries2. Historically five species have nested, foraged and migrated along the coasts of each of the Complainant countries: the green, olive ridley, hawksbill, leatherback and loggerhead. In their submissions, each of the Complainant countries allege that their conservation policies for sea turtles are adequate to protect the species in question without using by catch avoidance in their fishing fleets. Each Complainant country has refused to join a Multilateral Environmental Agreement (MEA) involving commitment to the use of the Turtle Excluder Device (TED).

6 2.2 This brief will show that there are compelling and immediate reasons for the Panel seized of this dispute to call for scientific experts, to advise them impartially on the biological and ecological aspects of this dispute. These aspects, by reason of their urgency and their proximity to the heart of the issue, cannot be isolated from the WTO decision which has been requested by the complainant countries. The Panel has authority to call for scientific expertise to be made available to them, in Annex 2 of the Understanding on Rules and Procedures Governing the Settlement of Disputes, at Article 13, paragraph 2, and at Appendix 4, Expert Review Groups. It is our contention that the Panel must inform itself of all the relevant facts before coming to a decision which has legal effect, and that such facts clearly extend beyond those relating to the trade in shrimp. 2.3 Sea turtles are highly migratory species. The Sea turtles move through a variety of habitats and in and out of the waters of various nations during their lifetimes as they move from developmental to foraging and eventually to reproductive habitats and back again. There is a substantial body of evidence documenting the migratory habits of sea turtles especially in breeding adults. In the complainant countries, researchers and other observers have found turtles tagged in Karachi on the coast of Gujarat, India. Sea turtles tagged on the coast of Malaysia have been recovered from Taiwan, Japan and Hawaii (USA). Sea turtles tagged on the Orissa coastline in India have been recovered later in Sri Lanka. Those hatchlings which mature into gravid (eggbearing) females and survive, remigrate during the course of their adult lives, sometimes after one year, more often after two to five years, as they return to distant nesting sites. 2.4 Sea turtles can exhibit strong philopatry (nest site fidelity), but a mature female may range to other nesting beaches from a few to 100 km away. So that, whilst it may be thought that their loyalty to a nesting place puts them, periodically, in the jurisdiction of a single State, the facts show that even this aspect of their behaviour can involve more than one jurisdiction, principally because of beach erosion and the phenomenon of longshore drift. For example, there is evidence collated to show counter-current intra-seasonal inter-nesting shifts between Surinam and French Guiana beaches3. Longshore drift may be so strong that a whole beach can disappear in one season, obliging the nesting sea turtle to relocate. Work has also been done to indicate that up to 27% of the West Indies nesting population

7 shifted beaches each year, travelling distances of up to km Sea turtles occur in the same marine ecosystem as shrimp. Their feeding habits can be connected, as for example in the Gulf of Mexico, where the Kemps Ridley feeds primarily on the crab which shares the habitat of the white, pink and brown Penaeus shrimp. Considerable research has been done on the sea turtle population in the waters of the Eastern USA, which indicates that the sea turtle should correctly be considered as a biological indicator of the health of the marine eco-system which it inhabits. 2.6 The first crucial issue on which the Panel should inform itself is the pattern of the sea turtles reproductive cycle. There is a prestigious body of international research, in which there is little disagreement. As turtles are both longlived and migratory, a long period (twenty years) is required for accurate information to be collated and accurately analysed. The conclusions which may be extrapolated from the available analyses are as follows: 2.7 A sea turtle s life may be conveniently divided into seven stages, which reflect its age, habits and reproductive capacity. These stages are identified as eggs/hatchlings, small juveniles, large juveniles, subadults, novice breeders, first time remigrants and mature breeders. (I) The potential life-span for a sea turtle is many decades. (ii) Sexual maturity comes late in the life cycle of the sea turtle - the olive ridley, for example, does not achieve maturity until it reaches 20 to 40 years of age5. A female turtle will nest on average three times in one season with an average period of 15 days between each laying. She may not then return to nest for several years. (iii) The hatchling can be subject to enormously high mortality rates, (in some circumstances, up to 90%). The evolution of sea turtles over millions of years has taken account of high levels of natural mortality amongst the very young animals. The loss of individuals at this stage is not as detrimental to the survival of the population as is mortality at later stages in the life cycle. Experts suggest that one in 1000 hatchlings reaches sexual maturity. iv) Turtles that have survived the hatchling stage must then survive a further substantial period, between 15 and 35

8 years, the pelagic phase, one to several years in length, before entering the juvenile and sub-adult populations, and ultimately the population of mature animals. (v) By the time a turtle reaches adulthood (after years) it is an essential member of the population. Natural mortality among these adult animals tends to be very low, moreover, reproductive fecundity increases with the age of an adult female turtle. Under natural circumstances, once a female reaches adulthood, she will lay multiple egg clutches, usually every two to four seasons throughout her adult life. Thus human-induced mortality at this stage in the cycle is particularly harmful to the population. (vi) Where gravid females attempting to lay eggs coincide with periods of intense unmodified trawling activity, the result is high rates of mortality amongst the adult breeding population. The temporal and spatial correlation between shrimp trawling and migrating turtles is barely acknowledged by the Complainant countries. On the Orissa coast, for example, two nesting periods occur annually, in December/January and March/April. The monsoon season runs from June to September, and the period from November to April/May is marked by peak trawling activity. Unmodified trawling practices have been responsible for the deaths of several thousand adult olive ridleys each year since the late 1980 s, when large-scale trawling activities commenced. 2.8 All the stage-based population models compiled to identify the stages at which measures could be taken to halt declines in population indicate that even 100% hatch success on specific nesting beaches will not prevent extinction, if mortality among mature animals is high There is a dearth of understanding of the population dynamics of sea turtles: the evidence is that current management practices are focused on the least responsive life stage, ie eggs on nesting beaches. This type of conservation is an easier matter: there is an obvious apparent result, ie visible hatchlings, which, the literature indicates, lulls people into supposing that the decline has been halted. Turtle hatchling populations, according to the evidence, are being carefully nurtured in some complainant countries, but the mortality rate of the sea turtle population as a whole continues to rise. The stage population models indicate that although in many parts of the complainant countries, conservation of the nesting beach habitat is in place, and hatchling mortality is considerably reduced, the sea turtle population is nevertheless speeding towards extirpation, since the mortality rates of juveniles, sub-adults and adult

9 breeders continue to rise. Models suggest that a 20 year time lapse will occur before the conserved hatchling can be seen by its absence to have died out, most probably by being drowned in the fishing net. The Panel needs to be informed: it needs both to question and to understand the ratio between hatchling and adult breeder. Research shows, without question, that where a hatchling is worth one, an adult breeder is worth at least 600 in reproductive terms Biologists have accordingly concluded that a reduction in mortality in the later stages of the sea turtle s lifecycle is pivotal to its survival. The sea turtle occurs in waters around the coast line of the complainant countries, at considerable distances from the shore-lines and nesting beaches. It is this unacknowledged and unprotected part of its habitat which is currently mis-managed in a way which threatens the species survival The complainant countries do not adequately address the evidence relating to the conservation status of turtles which indicates that the primary threat to sub-adult and adult sea turtles comes from the fishing practices of the commercial shrimp fleets which operate in the coastal zones of each of these countries. There is no dissent amongst the international sea turtle scientific community that the use of unmodified shrimp nets is the primary and principal cause for the rates of anthropogenic mortality (from drowning) which afflict the sea turtle populations in these areas. Therefore, the second critical issue for the Panel to determine is the effect of shrimp fisheries on sea turtles in the coastal zone An analysis of these issues follows, using facts collated from the Complainant states Thailand Present: green turtle, olive ridley, hawksbill and leatherback Extirpated: loggerhead Non-farmed Shrimp production (1994): 118,984 tonnes Two main nesting habitats: (i) The Gulf of Thailand: at Khram Island Here, the green and hawksbill lay eggs throughout the year, peak laying from May to August. The number of nests declined from 499 (380 Green,

10 119 Hawksbill) in 1985 to 306 (255 Green, 51 Hawksbill)in (ii) The Andaman Sea: at Phrathong, Phuket, Surin and Similan islands, and Thaimung beach Here, the sea turtle population continues to decline drastically, particularly the olive ridley and leatherback, found at the Andaman Sea coast. All five species of sea turtle had previously occurred in this area. The number of nests in this area declined from 360 in 1985 to 36 in Nesting occurs from October to March, peak laying from mid November to mid January. Nesting areas are now protected by National Park status, and policed by the Thai Navy. The Fisheries Act 1972, prohibiting commercial fishing within three kilometres of the coastline, was passed after it was established that most sea turtle mortality results from capture and drowning in trawl nets. The Thai Turtle Free Device (TTFD) was introduced in September Official governmental evaluations indicate that the device which the Thai government has introduced is less cost-efficient than models used by other shrimpers. However, SEAFDEC studies from controlled experiments indicate that the Supershooter and TTFD types are both efficient and cost-effective, both in catch selection and fuel consumption, the TTFD being slightly more convenient to operate8. Although officially TEDs are now in use in Thai coastal waters, unofficially, TEDs are infrequently to be found on fish/shrimp trawlers. Twenty-four hour pushnet trawling is regularly observed, and the evidence is that policing of the regime is both difficult and unsuccessful9. Local coastal populations who depend upon sustainable fishing for their livelihood see large commercial trawlers denuding the coastal zone of all marine life, from sea turtles to the smallest life-forms. Section 609 actually assists the Thai government by giving an extra economic impetus to the application of a regulation which is plainly proving very difficult to enforce. There are substantial conservation programmes in place which are all geared to the beginning of the turtle s life cycle, ie the egg/hatchling stage. Without a conservation programme which addresses juvenile, subadult and adult mortality, these programmes cannot succeed.

11 Malaysia Present: leatherback, green, hawksbill, olive ridley Main nesting habitat: The East Coast of Peninsular Malaysia and Sabah Also : The West Coast Non-farmed Shrimp production (1994): 96,076 tonnes (i) The Terengganu coast This is the meeting site of the Rantau Abang leatherback population. In 1956, a total of over 10,000 nests per year was recorded. In 1995, a mere 37 nests were found. The annual decline has averaged 260 nests per year. The decline since 1980 has averaged 16% annually. Scientific analysis of the pattern of decline indicates extirpation by the year The immediacy of this decline is the most compelling evidence that the Panel should avail itself of expert evidence. Leatherbacks from this nesting area are highly migratory, and international driftnet fishing in the South China Sea and North Pacific has contributed to the population decline. However, studies indicate that the rapid decline of the last three decades coincides with the rapid development of the fishing industry in the Terengganu area. Figures from a fish trawling study compiled in 1987 show, for example, that out of 128 cases of incidental captures of sea turtles off Terengganu between 1984 and 1985, (of which 47 were leatherbacks 40 olive ridleys and 41 green turtles), 29 were caught in drift/gill nets, four by longlines, but 95 were drowned in trawlnets. By extrapolation from this study, it was estimated that a total of 1164 turtles were captured per year, by licensed trawlers. Capture occurred more frequently between March and September. Although trawling for fish does not occur in the monsoon season, between October and February, shrimp trawling continues ceaselessly throughout this period. The first hatchery for leatherbacks was established in However, it is clear that the hatchery programme has come nowhere near to halting the decline. Between 1966 and 1976, many hatchlings were released from Rantau Abang. Assuming the 5-10 year maturation period, these hatchlings should now be joining the breeding population. There is no evidence to show that they have survived. The leatherback is highly pelagic, and a hatchery programme alone clearly will not ensure its survival. Experts on the subject of the Malaysian leatherback population say that action is desperately needed on the part

12 of the international community in seas fisheries. their management of high (ii) The Perak coast By the late 1970s, more than 1,600 shrimp trawlers were fishing along this coast, and the sea turtle population has now been extirpated. Malaysian biologists recommended fishing regulations for the West Coast of Malaysia twenty years ago, as it was clear then that high adult mortality rates were already resulting in a rapid reduction of the population. An agreement between Malaysia and Philippines has established the Turtle Islands Protected Heritage Area. The use of trawlnet and other commercial fishing gears are banned in near shore areas within the protected area. Currently a significant number of shrimp trawlers are operating in Malaysian waters around Sabah, as well as Philippine waters. As nesting turtles venture beyond the limits of protected area during nesting and remigration, these fishing activities are a threat to the nesting population. This threat is the subject of a major research priority in the bilateral agreement which establishes this transfrontier protected area. The sea turtle populations in the remaining areas of Malaysia decline rapidly, where such a fishing ban is not practical. Malaysia has generally refused to co-operate at a state level with other states for the protection of the adult sea turtle. Trawl experiments were conducted in the use of the TED during February of 1997, as a consequence of the US shrimp embargo imposed with effect from May The experiments were conducted in the Pulau Pangkor waters of Perak on the Western Coast of Malaysia, where there is a small population of green turtles, and where shrimp trawling occurs all year round. Small and medium TEDs were used in the study. The experiments showed: (a) that TEDs prevented the turtle from being trapped and subsequently drowning, (b) that none of the commercial shrimp escaped during the operation, and (c) there was a small reduction in the by catch of fish and trash fish, either during trawling or hauling.

13 Since March, the government fisheries department has begun advocating the use of TEDs. The department now conducts workshops and encourages Malaysian shrimpers to install locally built TEDs. These TEDs are uniquely suitable for Malaysian shrimpers, and can be produced at a cost of about RM 80 per unit ($26.00). The South East Asian Fisheries Development Centre (SEAFDEC) is co-ordinating efforts to implement a regional programme for TED trials India Present: West Coast: Green, olive ridley, leather back East Coast: Olive Ridley, green, hawksbill, leatherback and loggerhead Inlands: Olive ridley, green, leatherback, hawksbill and loggerhead Non-farmed Shrimp production (1994): 241,191 tonnes (i) The Orissa Coast The olive ridley customarily nests on three important massnesting beaches along this coast line. A comprehensive survey was undertaken of this area from December 1993 to May During the survey, 5282 dead olive ridleys were counted. Almost all the deaths were due to incidental capture in shrimp trawling nets. The olive ridleys arrive off the coast from an unknown place during September and October. They mate during November and December, and the nest, laying many millions of eggs from January to April. During this period, although the beach itself is protected, the coastal waters are not, and much commercial fishing goes on. For the purposes of the survey, which was conducted on foot and by bicycle, the coast was divided into eight sectors. All dead turtles found were adult: 1436 male, (27.2%) and 3846 female (72.8%). The mortality rates recorded in earlier surveys of this coast line indicated this mortality to be attributable to turtles becoming entangled in fishing gear. In sections II, III and IV11, there is a large-scale trawler fishery. The turtles become caught in the fishing gear, and either suffocate or are beaten to death for easy removal from the net by trawler men. (Injuries to the head and carapace, observed in the survey, provide evidence for this.) It is specifically the use of mechanised fishing vessels from which the net is spread far wider, that produces the exceptionally high

14 mortality figures in these areas, where the government of India continues to expand the fishing industry. In early 1997, a further survey of the Orissa coast indicated that shrimp trawlers were catching up to 20 olive ridleys a day in their nets. Figures now becoming available indicate that several thousand turtles per year are dying in trawler fishing activity which has been increasing sharply since the late 1980 s. From Ekakulia Island to the mouth of the Chinchiri River, hundreds of carcasses can be seen on a single day. It is not known how far a drowned turtle may drift before stranding on a beach. At any one time, 30 to 40 mechanised vessels may be seen from Gahirmatha alone. In 1980, there were 469 mechanised craft along the Orissa coast. In 1994, after a concerted expansion of the fishing industry sponsored by the Indian government that number had risen to 2,453, and the appearance of 529 motorised craft. Similarly proportionate increases occurred over the same period, in the Andaman and Nicobar Islands, where sea turtle conservation activities are numerous. Even greater increases in mechanised craft have occurred during this period in Andhra Pradesh, and Tamil Nadu 12. The TED has never been used along the coast, until a recent workshop (undertaken in response to Section 609 of the Endangered Species Act) was conducted to introduce and teach shrimp fishermen the local manufacture and use of TEDs. The account of the workshop indicates that participants were both surprised and delighted by the TED. The workshop was held at Paradip, under the auspices of Dept of Fisheries and Animal Resources Development, Fishermen who had previously been ignorant of the TED found it to be both acceptable and effective, when able to observe them for themselves. In the course of the demonstration of the TED operation at sea from a fishing-vessel on 13th instant, it was found to the amazement of all present including the trawl owners, that an olive ridley sea turtle which had accidentally got inside the net fitted with a TED could at last escape through its exit hole while a similar turtle got entangled and ultimately killed in the fishing net having no TED that was being operated from another fishing vessel for the purpose of comparison. It was further observed that the attachment of the TED to the fishing net didn t pose any problem for fishing in the sea. The participants of the demonstration could also notice quite a number of dead turtles floating on the sea on their way to and back from fishing in an area nearly 20 km off Paradip coast, a fact which indicated large

15 scale turtle mortality due to their incidental catch in trawl fishing. At the end of this practical demonstration the trawl owners and operators were fully convinced of the efficacy of TEDs in excluding the accidentally drowned sea turtles from the fishing net while not adversely affecting the fish catch 13. (ii) Madras Crocodile Bank A survey conducted between 18th December and 22 January 1997 showed dead adult females ( 18 per kilometre within that period), generally uninjured but occasionally with netting round the neck. A large number of dead sea turtles wash up on the beach each year between December and February Pakistan Present: olive ridley, green turtle Non-farmed Shrimp production (1994): 29,122 Less is known of the turtle population of Pakistan. No precise surveys exist of sea turtle populations: the sizes of the olive ridley and green populations are accounted to be globally significant. The size of the shrimp harvest in Pakistan is substantial. There is no suggestion that TEDs are anywhere in use. Surveys have been compiled, but remain unpublished. Karachi and the Sind coastline Hawkes Bay and Sandspit are the scene of long-standing hatchery and conservation programmes, although there is no indication of fishing regulation surrounding this area. It is a further example of the nesting and breeding habitat of the sea turtles being conserved, although the marine environment in which it must survive for at least twenty years to enter the breeding cycle remains insignificant The Turtle Excluder Device Research into the causes of sea turtle mortality in the waters surrounding the USA led to the development of the Turtle Excluder Device (TED). This simple barred device, which may be produced both locally and extremely cheaply, can be installed in existing trawlers. Its use results in the virtual elimination of the capture and drowning of sea turtles. This initiates the recovery of a sea turtle population.

16 Mechanised trawling is a recent development in the history of shrimp fishing. Although the method yields more shrimp, considerable wastage occurs during the process. Shrimp often amounts to only 5-10% of the yield of a trawl. Other components might be sea turtles, fin-fish and trash(organic and inorganic). In some areas, fin-fish by catch is at a ratio of 12:1. The dead or commercially unviable by catch is simply disposed of overboard - producing colossal waste in harvesting. The TED can reduce unwanted bycatch of finfish by up to 50% Economic considerations The TED can be produced very cheaply. It is a very simple device: the costs of initial outlay and operation are very easily subsumed in its subsequent usage. The evidence suggests that where TEDs are used : (i) a higher proportion of the shrimp catch is undamaged, (by a drowning turtle) therefore the catch may be increased in value. Also, the net will sustain less damage; (ii) the trawl time is more efficient without the impediment of the sea turtle in the net. The net may be tuned more accurately, and the boat will not bear the additional burden of towing cumbersome drowning sea turtles; and (iii) crew members are not distracted from their work by the need to dispose of dying or drowned sea turtles Conservation considerations The Complainant countries explicitly acknowledge the need for conservation of these endangered species. Limited understanding of the sea turtle s reproductive life cycle has made it difficult for the complainant countries to understand the deceptive time lag which has now turned the conservation of both sea turtle habitats into a matter of life and death for turtle populations in the complainant countries. In parts of South East Asia, trawlers now net fish in the day, change nets and net shrimp during the night14. It is already clear from the legislative and regulatory behaviour of the complainant governments that they appreciate that specific modification of their fishing practices is essential The TED bypasses the complications which accrue from attempts to reduce tow times, to impose curfews,

17 moratoria, and other sorts of restraint which require impractical levels of enforcement to be effective. The TED deals with the issue at source, in an even-handed, efficient way with minimum and decreasing costs Technology transfer Whilst TEDs evolved in the US, in response to environmental concerns over rates of sea turtle mortality, the device is now in general use in 13 countries. Most of these have been provided with the technology and training by the National Marine Fishery Service (NMFS)15 for use by their commercial shrimp trawlers. In 1987, when Congress amended the Endangered Species Act (ESA) with Section 609 of US Public Law (S609), the devices were relatively costly, and still at an early stage of development. Studies at the time16 indicated that the device would not penalise US shrimp trawlers economically, that the device would pay for itself over a very short period of time, and that it could even increase the profits of the trawler. Since then, the TED has been continuously refined, with different designs to suit different types of vessel. The cost of production has been reduced to the point where, so far from being a burden to the fisherman, it now amounts to a benefit The Complainant countries allege that this legislation has been implemented prematurely, but the Complainant countries have known of its existence and its inevitable implementation since The TED amounts to a responsible fishing practice, irrespective of where it was invented. Its fore-runner was a device to exclude jelly fish from the shrimp catch. The TED is a precautionary practice, which forms a precedent for selective fishing, which should be viewed by all as inevitable. The evidence suggests that such measures must become a necessity if the resources of the oceans are to be husbanded successfully The increased interest of TED workshops in the complainant countries, and their immediate acceptability to the fishermen who sampled them, have only occurred in the aftermath of the implementation of S Law and Policy 3.1 International Law International law obliges states, including the complainant states and the United States, to refrain from

18 using their territory in such a manner as to undermine the conservation status of an endangered species International law establishes a general obligation upon all States to ensure that their territory is not used in a manner which damages the environment of another State or of areas beyond national jurisdiction. That obligation includes a duty to supervise and control activities within their jurisdiction to the same ends. The general duty has been made more specific in a number of areas of international environmental law, where by agreement or customary practice certain resources or assets have become the objects of international law. Sea turtles by virtue of their endangerment as a species have become objects of protection in international law. International law also establishes a standard of duty which States must adhere to in fulfilling their obligations. This varies from specific regime to regime but is generally thought to be at a minimum a due diligence standard [see Article 194 UN Convention on the Law of the Sea, where the obligation not to pollute the sea is subject to a best practicable means test, including a reference to the capabilities of State concerned]. This brief argues that these general and specific obligations, arising from both treaty and custom apply to the complainant countries in this dispute, that they have failed to meet the appropriate standard of care, and that they are accordingly in breach of their obligations in international law - a matter which ought to be taken into account by the dispute settlement organs of the WTO operating as they do under the principles and rules of international law The general obligation arises from Customary international law which binds all States, once established. It can be derived from treaties but is not dependent on the contractual rights which exist between parties to those treaties. Article 38 of the Statute of the International Court of Justice establishes as a source of law international custom, as evidence of a general practice accepted as law. There is sufficient evidence of general practice of states accepted as international law to the effect that states may not knowingly use their territory in such a manner as to undermine the conservation status of an endangered species, in this instance certain species of sea turtle. The argument in law proceeds from the general to the specific in the following way: General international law. The law of State responsibility establishes a duty upon a States not to

19 knowingly use or allow its territory to be used in such a manner as to cause harm to another State; International environmental law. Principle 21 of the 1972 Stockholm Declaration on the Human Environment expresses the well-known balance between sovereignty over natural resources, such as shrimp, and a State s responsibility for the environment, in this instance, turtles and their habitats: States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction. Principle 21 was reinforced and updated in Principle 2 of the 1992 Rio De Janeiro Declaration on Environment and Development, save for the addition of the words and developmental before the word policies and endorsed by the international community Specific conventional international environmental law relating to endangered species and protected habitats. The 1973 Convention on International Trade in Endangered Species creates a specific regime limiting the sovereignty of signatory States to trade in species which are threatened with extinction, as determined by the Conference of the Parties to the agreement. The 1992 Convention on Biological Diversity, specifically applies the principle set out in above in Principle 3, and creates obligations, subject to the phrase as far as possible and appropriate to maintain in situ conservation Specific conventional international environmental law concerning the endangered sea turtles which are the subject of the US legislation in this case. Multilateral and regional agreements, cited below, create obligations upon states to take measures to protect the conservation status of these turtle species which are threatened with extinction Specific non-binding instruments concerning sea turtles which contribute to the formation of a specific customary international law rule binding on the parties to this dispute. Several instruments dealing with the conservation of sea turtles are not in themselves binding but engage good faith obligations to act consistently with clearly expressed political commitments or lend content to

20 the more general rules established above or evidence a pattern of state practice The turtles which are the subject of this dispute are protected by multilateral and regional agreements, both binding and non-binding and consistent state practice in the form of national law. Additionally, the International Court of Justice has had occasion to rule upon and declare the existence of a general rule of international law relating to the environment and specific rules relating to the conservation of marine living resources The Convention on International Trade in Endangered Species 1973 (CITES) lists all seven of the recognised species of sea turtles as endangered on Appendix 1. All parties to this dispute are parties to CITES. CITES provides the highest level of protection for species listed under Appendix 1. CITES is an instrument of trade regulation designed for conservation purposes The World Conservation Union (IUCN) lists all seven species of turtle on the Red List. The Red List indicate the highest level of protection required to ensure species do not become extinct. All the parties to this dispute are members of the IUCN.[The IUCN is a mixed State/NGO organisation, the listing of species does not create obligations directly, there being no Treaty, but its expertise and wide membership provide strong evidence of custom when a clear decision is taken by the Union.] The 1979 Bonn Convention on Protection of Migratory Species of Wild Animals, provides the governing definition of migratory (see endnote 2). Additionally, the Preamble of the Convention states that: wild animals in their innumerable forms are an irreplaceable part of the Earth s natural system which must be conserved for the good of mankind Such preambular statements help interpret treaty obligations and may themselves evidence custom All the species of sea turtle concerned, save the flatback, are listed in Appendix I or Appendix II of the Bonn Convention on the Conservation of Migratory Species. Both India and Pakistan are Parties to the Bonn Convention. In

21 relation to Appendix I species, the Bonn Convention requires that: Parties that are Range States of a migratory species listed in Appendix I shall prohibit the taking of animals belonging to such species. Exceptions may be made to this prohibition only if: (a) the taking is for scientific purposes; (b) the taking is for the purpose of enhancing the propagation or survival of the affected species; (c) the taking is to accommodate the needs of traditional subsistence users of such species; or (d) extraordinary circumstances so require. (article III(5)) The definition of taking in the Bonn Convention includes hunting, fishing, capturing, harassing, deliberate killing, or attempting to engage in any such conduct Lyster s analysis supports the conclusion that the accidental by catch of sea turtles in shrimp fisheries is prohibited by this provision. He notes: The circumstances surrounding the decline of the Atlantic Ridley turtle (Lepidochelys kempii) an Appendix I species, provide a good example of how far-reaching Article III(5) might be. The Atlantic Ridley, like other species of sea turtle, has a propensity to become entangled in fishermen s nets, and the IUCN Amphibia-Reptilia Red Data Book states that the accidental catch of Atlantic Ridleys in shrimp trawls in the Gulf of Mexico now appears to be the major direct threat to the species with probably several hundred individuals being accidentally caught annually, and drowned or killed aboard trawlers. Since the entanglement of turtles in the trawls clearly constitutes capturing or harassing, even if the killing of turtles is deemed not to be deliberate, it is probably fair to conclude that Article III(5) imposes a legal duty on Parties that are Range States of the Atlantic Ridley to prohibit the use of shrimp trawls in areas where the turtle occurs unless the trawls are fitted with Turtle Excluder Devices. These devices, which are now being used in the United States and elsewhere, release inadvertently captured sea turtles and other large animals through a trap door, while shrimps pass into the end of the trawl. (Lyster, The Bonn Convention, 29 Natural Resources Journal 1989 at 988, Wildlife Law at p287)17.

22 The United Nations General Assembly supports the sentiment of the Bonn Convention s preamble and attaches it to Resolution 37/7 now known as the World Charter for Nature in Paragraphs 4 and 11 are particularly relevant: 4. Ecosystems and organisms, as well as the land, marine and atmospheric resources that are utilised by Man, shall be managed to achieve and maintain optimum sustainable productivity, but not in such a way as to endanger the integrity of those other ecosystems or species with which they coexist. 11. Activities which might have an impact on nature shall be controlled, and the best available technologies that minimise significant risks to nature or other adverse effects shall be used; in particular: (a) activities which are likely to cause irreversible damage to nature shall be avoided; Again, this resolution like all GA Resolutions is not binding in itself but can and does contribute to custom. 3.2 Multilateral Agreements on the Law of the Sea and Conservation The harvesting of shrimp within and beyond national jurisdiction is also subject to international regimes The 1958 Convention on Fishing and Conservation of Living Resources on the High Seas state, Article I, echoes the general obligation identified above:.. all states have the duty to adopt or to co-operate with other states in adopting, such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas The United Nations Convention on the Law of the Sea (UNCLOS 1982), sets out the balance of rights and obligations upon coastal states in respect of the conservation of living resources in the exclusive economic zone: Article 61(2) the coastal state taking into account the best scientific evidence available to it shall ensure through proper conservation and management measures that the maintenance of the living resource in the exclusive economic zone is not endangered by over-exploitation...

23 (4) In taking such measures the coastal state shall take into consideration the effects on species associated with or dependent upon harvested species, with a view to maintaining or restoring populations of such associated or dependent species above levels at which their reproduction may become seriously threatened. Article 62, on the utilization of the living resources continues the balance between exploitation and conservation, incorporates the objectives of the convention and mandates the application of a regulatory regime which, inter alia, includes; (c) regulating seasons and areas of fishing, the types and sizes and amount of gear, and the types, sizes and number of fishing vessels that may be used In so far as sea turtles, being migratory, may also be resources of the high seas, Article 117 states; all states have the duty to take, or to co-operate with other states in taking, such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas Becoming more specific, Article 119(1) states in determining the allowable catch and establishing other conservation measures for the living resources of the high seas states shall:...(b) take into consideration the effects on species associated with or dependent upon harvested species with a view to maintaining or restoring populations of such associated or dependent species above levels at which their reproduction may become seriously threatened The 1995 FAO Code of Conduct on Responsible Fisheries contains a number of specific recommendations. Article 6 sets out the general principles of the Code, which although not legally binding in itself is attached to the body of international law by agreement of the parties and specifically to UNCLOS 1982 (see Article 3), it states: (1) States and users of living aquatic resources should conserve aquatic ecosystems. The right to fish carries with it the obligation to do so in a responsible manner, so as to

24 ensure effective conservation and management of the living aquatic resources Relevant Regional Agreements designed to protect sea turtles: Additionally, the Respondent and the Complainant States have demonstrated their commitment to fulfilling their obligations under customary international law or alternatively have contributed to the formation of rule by co-operating through regional agreements in order to protect the sea turtle from extinction The ASEAN Agreement on the Conservation of Nature and Natural Resources provides for the protection of endangered marine species: Article III Species-Genetic Diversity (1) The contracting parties shall, wherever possible, maintain maximum genetic diversity by taking action aimed at ensuring the survival and promoting the conservation of all species under their jurisdiction and control. (2) To that end they shall adopt appropriate measures to conserve animal and plant species whether terrestrial, marine and freshwater, and more specifically... (c) protect endangered species... (e) take all measures in their power to prevent the extinction of any species or subspecies. See also articles 4 on sustainable use, in particular 4(1)(b), 4(2)(c) and (d), and genetic diversity 3(3)(b) Both Malaysia and Thailand are party to this agreement The Inter-American Convention for the Protection and Conservation of Sea Turtles establishes national conservation programmes for the protection of sea turtles, and specifically mandates the use of TEDs. 3.4 National law and policy The Complainants have displayed in their written memorials evidence of domestic law and policy designed to protect sea turtles. See for example in respect of the