3.51. India observed that, while the sources referred to by the United States appeared to indicate that shrimp trawling was a major source of sea turtle mortality in waters in and around the continental United States, the United States did not present any evidence indicating that shrimp trawling was the largest source of sea turtle mortality in India. Indeed, the evidence cited by the United States showed the opposite. Specifically, the study referred to by the United States stated that "[a]t Gahirmatha, although trade in turtles and eggs is not there any more, considerable number of turtles are dying due to fishing activities in this area. Even then, if one considers the number of nesting turtles from year to year, it is reasonable to say that the population nesting at Gahirmatha has not been adversely affected by these activities".¹¹⁴ The study actually noted that the number of olive ridleys nesting at Gahirmatha had increased substantially over the last ten years. In 1985, a total of 286,000 turtles nested in three batches of mass nesting. By 1991, that number had increased to more than 600,000 and remained constant. Based on these facts, the report concluded that "the Gahirmatha population has attained a stability as [far as] the number of nesting emergences is concerned". Increase in nestings was the factor which the United States pointed to demonstrate that its conservation efforts had yielded encouraging results. Thus, the report demonstrated that the Indian sea turtle population could be sustained without the TEDs requirement contemplated by the United States. Finally, this report indicated that the olive ridley population in India had achieved stability, suggesting that India's current shrimping practices were in accordance with the concept of sustainable development. India further noted that the second study¹¹⁵ mentioned by the United States - discussing the death of 5,000 olive ridleys in trawling nets -did not distinguish between shrimp trawls and other trawls, and concerned olive ridleys, a species which was not a direct US responsibility. India further submitted that another document produced by the United States noted that the South African loggerhead population had more than doubled since the early 1960s when strong protective measures had been introduced; on the other hand, the United States indicated that only one African country, Nigeria, required TEDS. Thus, the increase in loggerhead population in South Africa was due to conservation measures other than TEDs. Regarding the United States questioning the degree of enforcement of measures currently in place in India, India noted that the effective enforcement of Indian domestic legislation was a matter for India. Moreover, India noted that the US enforcement record with respect to its TEDs programme had been questioned. A Bangkok Post article¹¹⁶ noted that the "Humane Society alleges that 41 per cent of Texas shrimpers surveyed had violated US regulation to protect sea turtles." Further, undercover investigators stated that 13 of the 32 vessels checked had disabled their TEDs. In response to claims by the Texas Shrimp Association that the report was a hoax and that the US Coast Guard had reported a 96.9 per cent compliance with the law, the article noted that shrimpers knew when Coast Guard inspectors were coming, but "the society's sleuths kept a lower profile."

3.52. Malaysia responded that there was no historical record indicating that olive ridleys had nested in the thousands in Malaysia. Neither was there any historical account of the phenomenon of olive ridley arribadas¹¹⁷ occurring in South East Asia. Malaysia further replied that the US conclusion regarding the responsibility of shrimp trawl nets for sea turtles deaths had been reached by the US Academy of Sciences which had estimated that 55,000 turtles drowned annually in US shrimp trawls.¹¹⁸ While the United States had found that this was the case for the US populations of sea turtles, the same conclusion could not be applied to all sea turtle populations in the world. Moreover, over 90 per cent of the deaths referred to concerned loggerhead turtles¹¹⁹ which were not found in Malaysia. In other parts of the world, other causes of mortality could take precedence, e.g. harvesting and consumption of turtle eggs or direct capture of turtles for consumption. Therefore, what might be true for the United States could not be extrapolated to other countries. The statement that shrimp trawlers killed more than other forms of incidental capture¹²⁰ did not apply to Asia, but was based on studies made in Australia, South and Central America and North America. The study in question also reported that "very little has been reported on the incidental capture of sea turtles" on African and Indian Ocean waters.¹²¹ Moreover, a later publication identified fishing trawl, and not shrimp trawl, as the highest cause of olive ridley mortality in India.¹²²

3.53. Malaysia did not deny that the incidental captures of sea turtles in fishing gear in Terengganu waters had contributed significantly to the decline of sea turtles. A study conducted in 1984 showed that fishing gear (trawlnets, i.e. mainly fish trawls and not shrimp trawls, driftnets and bottom longlines) contributed significantly to the mortality of turtles in the waters of Terengganu.¹²³ Based on estimates, some 1,164 turtles had been caught by licensed fishing vessels in Terengganu in 1984-1985. In a more recent analysis of the leatherback population decline¹²⁴, two periods of markedly sharp declines were identified, i.e. from 1972-1974 and from 1978-1980. The 1972-74 decline was attributed to the rapid development of the fishing industry in Terengganu in the early 70's, while the decline in the latter period, 1978-80 was attributed to the introduction of the Japanese high seas squid driftnet fishery of the North Pacific in 1978. Malaysian gear responsible for turtle mortalities in Terengganu were identified as trawlnets (fish trawls), driftnets (large-meshed nets for capture of rays), and sunken fish traps. In Terengganu, the dramatic decline of leatherback sea turtles was due to a combination of factors, of which commercial egg collection was a major factor. However, in the last 10 years the Terengganu State Government had intensified conservation efforts of sea turtles¹²⁵, as described in paragraph 3.29. Malaysia further submitted that of the five species of sea turtles sought to be protected under Section 609, the three species found in US waters which were also found in Malaysia were the green, leatherback and hawksbill turtles. None of these three species fed on shrimps. Two other species - loggerhead and Kemp's ridley - were found in the United States but not in Malaysia. Both were the major species occurring in the United States and accounted for over 95 per cent of the turtle mortalities in shrimp trawl in the United States¹²⁶; they fed on shrimps, i.e. in areas which were shrimp trawling grounds, thus accounting for their vulnerability in shrimp trawls. The Malaysian species did not have feeding grounds coinciding with shrimping grounds. Thus, unlike the situation in the United States, where shrimp trawl fisheries took place in areas where sea turtles occurred, in Malaysia trawl fishing did not coincide with areas where sea turtles occurred. Malaysia also noted that loggerhead turtles were at risk in the groundfish otter-trawl fishery in the US waters in the Gulf of Maine and the mid-Atlantic Ocean, and queried whether TEDs were required in this particular fishery.

3.54. Pakistan argued that, as a member of CITES, it recognized that sea turtles were threatened with extinction. However, the fact that sea turtles were endangered did not justify the US measures at issue. Pakistan was in the best position to determine the measures to be taken to protect sea turtles within Pakistani jurisdiction while taking into consideration the concept of sustainable development and Pakistan's needs and concerns based upon its level of economic development. In Pakistan, 100 per cent of wild harvested shrimp was done using manual means, and not with large or sophisticated nets. Thus, turtles were not in danger of being caught. Pakistan argued that the report cited by the United States concluding that shrimp trawl fishing had caused the "greatest number of human-induced sea turtle deaths"¹²⁷ was generally based on studies associated with US sea turtle population. Indeed, the report noted that "by far the most important source of deaths was the incidental capture of turtles (especially loggerheads and Kemp's ridleys) in shrimp trawling". As already noted, the two species common to Pakistan were the green and olive ridley. While this report indicated that shrimp trawling in the United States was a serious threat to US sea turtle populations, the United States provided no evidence concerning the level of incidental capture of sea turtles associated with shrimp trawling in Pakistan. Pakistan did not deny that one of the threats to sea turtles was accidental capture in fishing nets.¹²⁸ However, this did not suggest that shrimp trawling was the source of the greatest number of human-induced deaths in Pakistani fisheries. Actually, another report cited by the United States noted, with respect to shrimp trawlers in the African and Indian Ocean waters: "very little has been reported on the incidental capture of sea turtles by trawlers in this area".¹²⁹

3.55. Pakistan noted that a document submitted by the United States included the following as one of the action issues: "[i]ncomplete data on accidental mortality in fishing gear, including trawl nets, long lines, drift nets, purse seines, gill nets, and other fishing methods"; sub-items under this issue included "[a]ssess rates of sea turtle mortality in all types of fishing gear and fishing practices used in the NIO" and "[i]dentify levels of mortality that sea turtle populations can sustain".¹³⁰ These statements made clear that the greatest human-induced cause of sea turtle mortality in the Northern Indian Ocean was unknown. It was then difficult to understand how the US action were in accordance with the preamble of the WTO Agreement when the level of incidental take consistent with the principle of sustainable development was unknown. Pakistan further noted that the statement contained in the same document ("promote use of sea turtle excluder devices (TEDs) from trawl fisheries where necessary"¹³¹), could hardly be said to be an endorsement of the US position that TEDs must be used by all trawls, except those operating in cold-water shrimp fisheries. Notwithstanding these facts, the United States, through the imposition of its embargo, would have Pakistan direct its limited resources first to the shrimp fishery before determining whether it would be better for the local sea turtle population to direct resources elsewhere. Pakistan also noted that IUCN listed 6 areas in which mortality should be reduced but did not suggest that reduction of mortality due to shrimp trawl had to be given priority over other causes of sea turtle deaths; Pakistan pointed out that IUCN also listed as a priority action item the facilitation of "integrated management through regional and international cooperation and coordination".¹³²

3.56. Thailand submitted that other forms of fishing and fishing for other species were, in some places, more directly related to incidental sea turtle deaths. For example, the 1990 report cited by the United States, noted that turtle strandings increased in North Carolina when flounder trawling was active.¹³³ In fact, in implementing regulations requiring the use of TEDs for the Virginia and North Carolina summer flounder bottom trawl fishery, the responsible US government agency noted that "bottom trawl nets fished without TEDs for summer flounder can capture sea turtles at a rate comparable with that of shrimp trawl nets fished without TEDs along the southern US Atlantic coast".¹³⁴ The United States apparently based its regulations on threats that existed in and near the United States and then generalized those threats to the rest of the world. However, in Thailand, shrimp trawl fisheries were not the major source of anthropogenic threats to sea turtles. In Australia as well, a 1990 study had concluded that trawl-induced turtle drowning did not represent an immediate problem for turtle populations.¹³⁵ More recent studies indicated that trawl-induced mortality of marine turtles in fisheries in Australia, Asia and Oceania was likely to be of less impact on sea turtle populations than other anthropogenic threats.¹³⁶ Thus, it was untrue that application of Section 609 to all shrimp exporting nations was necessary to prevent the extinction of sea turtles or that this measure was closely tailored to local conditions. In fact, this measure ignored significant differences in anthropogenic threats to sea turtles in different regions of the world. The statement that US shrimp fishermen were required to harvest shrimp in a manner that was safe for sea turtles was also incorrect. Presently, US shrimpers were permitted to use soft TEDs even though recent testing by the US government had found such TEDs ineffective at excluding turtles.¹³⁷

3.57. Thailand submitted that, while the United States had demonstrated that shrimp trawling was the greatest human-induced threat to the US sea turtle population, it did not show that shrimp trawling was the greatest human-induced threat to sea turtle populations in other regions of the world, including Thailand and the Australo-Pacific region. With regard to Thailand, the sources cited by the United States generally seemed to concur that egg harvest was or had been the single, greatest human-induced threat to Thailand's sea turtle population. Other threats included loss of nesting beaches to development, marine pollution, and fishing for both fish and shrimp by a variety of means. A 30-year Night-Trawled Monitoring Surveys uncovered no evidence of incidental turtle deaths in shrimp trawl fisheries conducted in Thai waters or by Thai vessels.¹³⁸ Since the reporting of incidental taking of sea turtles in shrimp trawl operations had become mandatory in Thailand, there had been no reported instances of incidental takings. A report cited by the United States noted that "[t]rawling is concentrated primarily in the relatively shallow waters near shore in both temperate and tropical zones. Many of the most intensively trawled waters are adjacent to major sea turtle nesting beaches or feeding grounds".¹³⁹ However, as noted in Status of Marine Turtles in Thailand, the Fisheries Act of 1972 prohibited commercial fishing in Thai waters within 3 kilometres of the coastline.¹⁴⁰ Furthermore, most sea turtles in Thailand inhabited coral reefs and grassy areas where trawling operations were impractical. This could be the reason why there was no direct evidence of incidental takings of sea turtles in shrimp trawl operations in Thailand. On information and belief, gill netting near nesting areas, egg poaching, long-line hook fishing and fishing for other fish species had historically constituted more serious anthropogenic threats to sea turtles in Thai waters than shrimp trawl fisheries¹⁴¹ (gill netting near nesting areas was now banned in Thailand, egg poaching had been eliminated in sanctuary areas but remained a problem elsewhere). Even the United States appeared to concede that other forms of fishing, besides shrimping, could have been a cause of the decline in turtle populations in Thai waters since the 1950's, when attributing the decline to "heavy fishing activities, including trawling". For instance, a document cited by the United States, which noted declines in the stock of both olive ridleys and leatherbacks in the Andaman Sea area of western Thailand, clearly stated that the observed declines were a result of long-term excessive egg harvest.¹⁴² Another document exhibited by the United States revealed that of the four separate locations studied along Thailand's west coast, trawling was noted as a factor in only one area, and only in conjunction with two other causes of sea turtle mortality: egg collection and gill nets. In the other three areas, the major human-induced threat to sea turtles was egg poaching, with gill nets and long lines identified as the fishing gear which posed additional threats.¹⁴³ A third study produced by the United States concluded that declines in sea turtle populations in the areas studied were likely to be due to excessive egg collection and adult mortality in fishing gear, but did not identify shrimp trawls as a primary source of mortality.¹⁴⁴ The US measures, therefore, failed to consider that in other nations sustenance harvesting of eggs and turtles, which was not a factor in the United States, might be the greatest human threat to sea turtle life and longevity.

3.58. Regarding India, the United States noted that five different species of sea turtles were reported to nest on Indian beaches. Scientific literature dating back two decades found that for each of these species, "their populations are believed to be declining steadily everywhere".¹⁴⁵ More recently, the Northern Indian Ocean Sea Turtle Workshop, held in Bhubaneswar, India in January 1997, adopted "A Marine Turtle Conservation Strategy and Action Plan for the Northern Indian Ocean". That document, in addition to recommending the use of TEDs in trawl fisheries where necessary¹⁴⁶, confirmed the "alarming decrease" in each of the nesting populations of species of sea turtles in question:

3.59. Thus, if current fishing practices and patterns continued, even the olive ridley population nesting at Gahirmatha was not safe. Several scientific reports supported this conclusion. A report prepared by Dr. Mohanty-Hejmadi of Uktal University in Bhubaneswar, India concluded that the drowning of sea turtles at Gahirmatha during breeding season due to mechanized boats, including trawlers, had become a "major threat" to these species.¹⁴⁸ Further evidence of the threat to the olive ridleys of Gahirmatha from trawl fisheries was provided in the Country Report: India - Sea Turtle Status, Conservation and Management in India: "[n]ear shore mechanized fishing results in the mortality of [a] large number of sea turtles along the Indian coast. More than 5,000 dead olive ridley sea turtles were counted along the 480 km long Orissa coast during a six month survey in 1994. These deaths were due to accidental capture in trawl nets".¹⁴⁹ Even more troubling scientific evidence had emerged. As stated by an authority on sea turtle biology, ecology, and conservation:

To Continue With Chapter 3.60

¹¹⁴ P. Mohanty-Hejmadi, (1994), Biology of the Olive Ridleys of Gahirmatha, Orissa, India, in Proceedings of the Fourteenth Annual Symposium of Sea Turtle Biology and Conservation, p. 90.

¹¹⁵ B.C. Choudhury, (1997), Country Report: India - Sea Turtle Status, Conservation and Management in India, p. 2.

¹¹⁶ "Troubled Waters", in Bangkok Post, 17 April 1997.

¹¹⁷ Note: some species of sea turtles nest in an aggregated manner, i.e. many females gather in the sea near the nesting beach and then emerge to nest in a loosely synchronized manner over several hours. This phenomenon is known as "arribada". (National Research Council, National Academy of Sciences, (1990), Decline of the Sea Turtles: Causes and Prevention, Washington D.C., p. 18).

¹¹⁸ Weber, M., Crouse, D., Irvin, R. and Iudicello, S., (1995), Delay and Denial: A Political History of Sea Turtles and Shrimp Fishing, Center for Marine Conservation, p. 12.

¹¹⁹ T.A. Henwood and W.E. Stuntz, (1987), Analysis of Sea Turtle Captures and Mortalities During Commercial Shrimp Trawling, Fishery Bulletin Vol. 85, No. 4, pp. 813-817.

¹²⁰ H.O. Hillestad et. al., (1982), Worldwide Incidental Capture of Sea Turtles, in Biology and Conservation of Sea Turtles, K.A. Bjorndal ed., pp. 489-495.

¹²¹ Ibid.

¹²² B. Pandav, B.C. Choudhury, C.S. Kar, (1994), Olive Ridley Sea Turtle (Lepidochelys olivacea) and its Nesting Habitats along the Orissa Coast, India: A Status Survey, Wildlife Institute of India. Malaysia also noted that olive ridley did not come under the scope of Section 609.

¹²³ E.H. Chan, H.C. Liew. and A.G. Mazlan, (1988), The incidental capture of sea turtles in fishing gear in Terengganu, Malaysia, Biological Conservation, Vol. 43, pp. 1-7. Malaysia noted that Table 2 of this paper very clearly showed that incidental captures occurred from March to September, when fish and not shrimp were targeted, but no reports were made of captures between October to February, i.e. during the shrimping season.

¹²⁴ E.H. Chan and H.C. Liew, (1996), Decline of the leatherback population in Terengganu, Malaysia, 1956-1995, Chelonian Conservation and Biology, Vol.2, No. 2, pp. 196-203.

¹²⁵ E.H. Chan, (1991), Sea Turtles, in The State of Nature Conservation in Malaysia, R. Kiew ed., Malaysian Nature Society, Kuala Lumpur, pp. 120-134.

¹²⁶ T.A. Henwood and W.E. Stuntz, (1987), Analysis of Sea Turtle Captures and Mortalities During Commercial Fishing Shrimp Trawling, in Fishery Bulletin, Vol. 85, No. 4, pp. 813-817.

¹²⁷ National Research Council, National Academy of Sciences, (1990), Decline of the Sea Turtles: Causes and Prevention, Washington D.C.

¹²⁸ WWF-Pakistan and Sindh Wildlife Department, Marine Turtles of Pakistan.

¹²⁹ H.O. Hillestad et. al., (1982), Worldwide Incidental Capture of Sea Turtles, Biology and Conservation of Sea Turtles, K.A. Bjorndal ed., pp. 489-495.

¹³⁰ IUCN (World Conservation Union), (1997), A Marine Turtle Conservation Stragegy and Action Plan for the Northern Indian Ocean, p. 10.

¹³¹ Ibid., p. 11.

¹³² IUCN (World Conservation Union), (1995), A Global Stategy for the Conservation of Marine Turtles, pp. 8-9.

¹³³ National Research Council, National Academy of Sciences, (1990), Decline of the Sea Turtles: Causes and Prevention, Washington D.C., p. 76.

¹³⁴ Sea Turtle Conservation; Restrictions Applicable to Fishery Activities; Summer Flounder Fishery-Sea Turtle Protection Area, 61 Fed. Reg. 1846 (24 January 1996).

¹³⁵ I.R. Pioner, R.C. Buckworth and A.N.M. Harris, (1990), Incidental Capture and Mortality of Sea Turtles in Australia's Northern Prawn Fishery, in Australian Journal of Marine and Freshwater Research, Vol. 41, pp. 97-110.

¹³⁶ Commonwealth Scientific and Industrial Research Organization (CSIRO), Division of Fisheries, (1996), Public Nomination of Prawn Trawling as a Key Threatening Process, Submission to Endangered Species Scientific Committee.

¹³⁷ Sea Turtle Conservation; Revisions to Sea Turtle Conservation Requirements; Restrictions to Shrimp Trawling Activities, 61 Fed. Reg. 66, 933 (19 December 1996).

¹³⁸ The Night-Trawled Monitoring Surveys During 1967-1996, (1997), Marine Fisheries Division, Department of Fisheries.

¹³⁹ H.O. Hillestad et. al., (1982), Worldwide Incidental Capture of Sea Turtles, in Biology and Conservation of Sea Turtles, K.A. Bjorndal ed., p. 491.

¹⁴⁰ S. Chantrapoornsyl, (1997), Status of Marine Turtles in Thailand, Phuket Marine Biological Center, p. 6.

¹⁴¹ Bhatiyasevi et. al., (1997), Night Trawled Monitoring Surveys; S. Chantrapoornsyl, (1997), Status of Marine Turtles in Thailand, Phuket Marine Biological Center, p. 6; C. Limpus, (1995), Global Overview of the Status of Marine Turtles: A 1995 Viewpoint, Queensland Department of Environment and Heritage. Thailand noted that, although the Chantrapornsyl study stated that trawling was one cause of incidental sea turtle deaths in some identified areas of Thailand, it did not distinguish between shrimp trawling and other forms of fish trawling. The Night Trawled Monitoring Survey was the only survey to specifically identify the incidence of sea turtle mortality arising from shrimp trawling and it found none. Moreover, in several areas of Thailand, trawling was not even mentioned by the Chantrapornsyl study as a cause of significant sea turtle mortality. The Limpus study mentionned egg poaching as a the single cause of a significant decline in nesting olive ridley sea turtles in the Andaman Sea.

¹⁴² C.J. Limpus, (1995), Global Overview of the Status of Marine Turtles: A 1995 Viewpoint, Biology and Conservation of Sea Turtles, K.A Bjorndal ed., pp. 606-609.

¹⁴³ S. Chantrapoornsyl, (1997), Status of Marine Turtles in Thailand, Phuket Marine Biological Center.

¹⁴⁴ E. Stuart and M. Carlin, (1994), Conservation of Sea Turtles at Two National Parks on the Andaman Sea Coast of Thailand, Marine Turtle Newsletter, No. 67.

¹⁴⁵ C.S. Kar and S. Bhaskar (1995), Status of Sea Turtles in the Eastern Indian Ocean, in Biology and Conservation of Sea Turtles, K.A. Bjorndal ed., p. 365.

¹⁴⁶ IUCN (World Conservation Union), (1997), A Marine Turtle Conservation Strategy and Action Plan for the Northern Indian Ocean, p. 11.

¹⁴⁷ Ibid., p. 1.

¹⁴⁸ P. Mohanty-Hejmadi, (1994), Biology of the Olive Ridleys of Gahirmatha, Orissa, India, in Proceedings of the Fourteenth Annual Symposium of Sea Turtle Biology and Conservation, p. 90. The United States indicated that the same author was one of the principal organizers of the TEDs workshop held in Paradeep and had signed the recommendations adopted at that workshop that "the use of TEDs should be made mandatory and a proper and effective monitoring system developed" in areas where shrimp trawling was permitted (Recommendations of the Training-Cum Demonstration Workshop on Turtle Excluder Device (TED), held at Paradeep, Orissa, 11-14 November 1996.

¹⁴⁹ B.C. Choudhury, (1997), Country Report: India - Sea Turtle Status, Conservation and Management in India, p. 2.

¹⁵⁰ Affidavit of Pamela Plotkin, Ph.D., 22 July 1997, document submitted by the United States to the Panel, paragraphs 5-7. The United States noted that Dr. Pamela Plotkin had spent the past 15 years on research focused on the biology, ecology and conservation of sea turtles, and had worked during the last 3 years in India in collaboration with Indian academic, non-governmental and government scientists and with government resource managers responsible for the conservation of sea turtles in Indian waters. Ibid., paragraphs 2-3.