3.60. Finally, the 1995 report on the Global Overview of the Status of Marine Turtles cited above found that the nesting population of olive ridleys in Orissa had "in recent times been under threat of incidental mortality" particularly from gillnet and trawl fisheries. Moreover, that report concluded, "there are no demonstrated recovering populations" of olive ridleys anywhere, including in India".¹⁵¹ In short, all species of sea turtles nesting on Indian beaches, including the olive ridley, had declined alarmingly. All species, including the olive ridley population that nested at Gahirmatha were in danger from incidental mortality in shrimp trawl nets; far from improving the protection of this endangered species, India was building fishing ports to support more shrimp trawling without TEDs, including a port adjacent to Gahirmatha Beach. Responsible Indian officials understood the problem and agreed that use of TEDs was the best and only way to conserve sea turtles.¹⁵²

3.61. In an answer to a question by India regarding the effectiveness of TEDs in protecting sea turtles in Indian waters, the United States indicated that it had tested the effectiveness of TEDs in all types of fishing environments and conditions. While there could be some differences in bottom conditions, such as variances in the nature and amount of natural debris, and weather conditions may vary, shrimp trawling was essentially the same throughout the world. The nets were set, trawled along the bottom and hauled in the same manner. All shrimp trawl net were very fine meshed in order to capture and retain small fisheries resources such as shrimp. They all had extremely high catch rates of non-target species, or bycatch, because a shrimp trawl would capture and retain every creature it came into contact with, unless that trawl net was fitted with a TED or other bycatch reduction device. Likewise, interactions between shrimp trawls and sea turtles were the same throughout the world. Sea turtles were found in the same general habitats and fed on the same types of food throughout the world. Their feeding habits and habitats put them in the direct path of shrimp trawls where they were captured. The United States had tested and towed several trawl nets equipped with TEDs when it had conducted training workshops in Cuttack, Orissa, in November 1996 and Kochi, Kerala, in May 1997. These trawl nets had been towed along side "naked nets" or nets not equipped with TEDs to compare shrimp catch and rates of shrimp loss. The TEDs had been found to be as effective as when towed in US waters.

3.62. Regarding Malaysia, the United States submitted that the Country Report for Malaysia revealed that, while the peak sea turtle nesting season in Malaysia occurred during August-October in Sabah and during June-July in Terengganu, Sarawak and most of the other states, in fact sea turtle nesting in Malaysia occurred "throughout the year".¹⁵³ The same report provided evidence that sea turtles did in fact remain in Malaysian waters after nesting: "observations of green turtles feeding over sea-grass beds have been reported along the west coast of Sabah, near Sandakan and at Sipadan Island, Sabah".¹⁵⁴ The scientific literature identified trawling as a significant source of mortality for sea turtles in Malaysian waters. A document submitted by Malaysia discussed the high rates of incidental sea turtle capture in Malaysia's shrimp fishery.¹⁵⁵ In interviews with Malaysian fishermen on the subject of incidental capture of sea turtles in fishing gear in Terengganu, 68 per cent of the fishermen who used trawl nets had reported incidental captures of sea turtles. The interviewer estimated that Malaysian trawlers had the potential to capture an average of 742 sea turtles per year. Moreover, the sea turtles captured in trawl nets almost always drowned before they could be released. The report summarizing these interviews noted, as the United States had pointed out, that "turtles caught in trawls have very little chance of survival because the nets are dragged for long hours along the sea bottom". The interviews also revealed that the fishermen caught sea turtles at different times of the year, calling into question any purported effectiveness of seasonal prohibitions on trawling that Malaysia claimed to have instituted. Given the precipitous decline in sea turtle populations in Malaysia, this level of incidental take represented a serious threat to the continued existence of sea turtles in Malaysia. Most importantly, these interviews showed that "the incidental capture of sea turtles in fishing gear in Terengganu waters is common, and contributes significantly to the mortality of sea turtles. ... The figures are alarmingly high when compared with the number of nestings recorded for each species, and it can be seen that fishing nets have the potential of quickly decimating the current populations of sea turtles".¹⁵⁶

3.63. The United States believed, therefore, there was evidence that Malaysia had not, as it claimed, effectively prevented trawling in certain areas during certain periods of the year. A study had found that while fishing activities were reduced between October and February, some prawn trawling occurred during this period. The same study also reported that incidental capture of turtles was reported from March through September with greater numbers occurring April through July, months coinciding with the nesting season.¹⁵⁷ 1992 Malaysia Fisheries Statistics published by the Malaysia Department of Fisheries demonstrated that prawns were landed in Malaysia every month of the year, indicating that there was shrimp trawling year round in Malaysian waters. Even assuming that Malaysia had effectively prevented trawling during certain periods of the year, sea turtles nested throughout the year on Malaysian beaches and on beaches of other countries throughout the region.¹⁵⁸ These sea turtles were subject to incidental mortality in trawl nets whenever they swam in waters near the Malaysian nesting beaches.¹⁵⁹ Finally, sea turtles did not, as Malaysia claimed, immediately leave Malaysian waters after nesting. Rather, many remained in these waters where, again, they were subject to incidental mortality in trawl nets. Other species of sea turtles, besides green sea turtles, which had distinct nesting seasons were also at risk of being accidentally captured in shrimp trawl in Malaysian waters. Coastal waters provided habitat that supported immature sea turtles and even some adults that stayed in waters close to shore and did not migrate back to feeding grounds. Malaysia itself had admitted to estimates of approximately 1,000 annual sea turtles mortalities from incidental capture in fishing gear. Finally, on only the second day of the tests in Malaysia, a TED-equipped trawl captured a "mature hawksbill turtle", demonstrating the likelihood that shrimp trawl nets in Malaysia were capturing sea turtles regularly.¹⁶⁰

3.64. The United States disagreed with Malaysia's premise that sea turtles were being killed by the nets of fish trawlers as opposed to shrimp trawlers. The trawl gear commonly used to harvest shrimp in the United States and in the complainants' waters - namely otter trawls - also caught different species of fish, other marine life (such as sea turtles), debris and virtually any other matter with which it came in contact. Other types of fishing gear also killed sea turtles, but on a scale that paled in comparison to the incidental mortality of sea turtles in shrimp trawl nets. The US National Academy of Sciences comprehensive analysis of the issue had showed that the incidental mortality of sea turtles in shrimp trawl nets was the greatest human-induced threat to sea turtles, greater than all other human-induced causes combined. As early as 1982, it had also been recognized that shrimp trawlers killed more sea turtles than any other form of fishing gear. Regarding Malaysia's claim that sea turtles were not at risk from shrimp trawl in its waters because they did not have species that ate shrimp, the United States noted that olive ridley did eat shrimp. More importantly, this claim revealed a fundamental misunderstanding about the relationship of sea turtles and shrimp fisheries. Sea turtles were caught in shrimp trawl nets because they were found in the same warm water habitats as shrimp, not because they ate shrimp. This was true of all species of sea turtles.

3.65. Regarding Pakistan, the United States responded that the method by which Pakistani fishermen retrieved their shrimp trawl nets did not protect sea turtles. The longer a trawl net remained in the water, the more it would fill and the heavier it would become. Generally speaking, fishermen who pulled in their nets by hand had to do so more frequently than those who used mechanical devices (such as winches) to pull in their nets, because such mechanical devices lent more power. However, where large crews worked together on a single vessel, their combined strength allowed them to tow their nets as long as vessels with mechanical devices for net retrieval. Trawl nets that fishermen retrieved by hand were no different from trawl nets that were retrieved by mechanical means with respect to the likelihood that they would catch sea turtles. However, the longer the nets remained in the water, the more likely it was that sea turtles caught in the nets would drown. A comprehensive study issued by the US National Academy of Sciences had found that "the mortality of sea turtles caught in shrimp trawls increases markedly for tow times greater than 60 minutes".¹⁶¹ Vessels with small crews who had to pull in their nets by hand at least once per hour could release captured sea turtles before they drowned. Such vessels thus represented a markedly lower threat to sea turtles than either vessels with mechanical devices for net retrieval or vessels with large crews who could retrieve their nets that were towed for more than one hour. Pakistan used shrimp trawl vessels with very large crews that were capable of towing their nets for periods far in excess of one hour. At the Northern Indian Ocean Sea Turtle Workshop in January 1997, Fehmida Firdous, the Project Officer of Pakistan's Sindh Wildlife Department, reported that her country had thousands of vessels trawling with very large nets that remained in the water for 2 hours. These vessels therefore posed as great a danger to sea turtles as vessels with nets that were retrieved by mechanical means. Indeed, Ms. Firdous stated at that Workshop that Pakistani fishermen admitted that sea turtles were caught and drowned in those nets. She identified incidental mortality in shrimp trawl nets as a significant threat to Pakistan's sea turtle populations. The only known way to avoid this danger was through the use of TEDs.

3.66. The United States declared that The Night-Trawled Monitoring Surveys 1967-1996 referred to by Thailand did not demonstrate that there had been no observed incidental sea turtle captures or mortalities in connection with shrimp trawl fishing in Thailand. Rather, this document apparently had not been designed to provide the information upon which Thailand relied in this case: it had collected data only on the target catch (shrimp) and the bycatch of other "edible marine resources", including fish, invertebrates and cephalopods. The Monitoring Surveys did not provide data on the bycatch of "non-edible marine resources" in shrimp trawling. Since sea turtles were not eaten in Thailand, they would be considered "non-edible marine resources", and thus outside the scope of the surveys.¹⁶² The otter trawls used in Thailand, as described in the Monitoring Surveys, were an extremely non-selective type of fishing gear. The mesh of these nets was extraordinarily small, so as to retain animals as small as shrimp. The Monitoring Surveys demonstrated just how non-selective this gear was: the bycatch of "trash fish" was reported as 67 per cent of the catch in the Gulf of Thailand and 43 per cent in the Andaman Sea. It was simply inconceivable that such gear would not also catch sea turtles when used at times and in areas where sea turtles occurred. And, in fact, the data showed that sea turtles did occur at the same time and in the same areas as such gear was used by Thai vessels. Available scientific studies showed conclusively that, at least until Thailand adopted a TEDs programme, sea turtles were being drowned in shrimp trawl nets in Thai waters. The Status of Marine Turtles in Thailand study found that "the main threat to sea turtles" in the Prathong Island area of Thailand was "the heavy fishing activities, trawling and gill nets".¹⁶³ Similarly, the study commissioned by Thailand's Office of Natural Resource Conservation specified that the "indirect take in fishing gear (e.g. trawlers, driftnets, purse seines) also plays a significant role" in the threat to sea turtle survival in Thailand¹⁶⁴, while another scientific analysis reported that the "dramatic decline in the number of turtles nesting" in two national parks in Thailand was due, in part, to "high adult mortality in fishing gear offshore".¹⁶⁵ Perhaps the most revealing evidence, however, was provided by Thai fishermen themselves. Interviews conducted with these fishermen by an independent researcher testified to the "drastic deterioration" of the sea turtle's situation in Thailand and the destruction wrought by trawl vessels: "[t]he large number of trawler boats fishing too close to shore ... sweep away all the marine life of all sizes including sea turtles".¹⁶⁶ During a TEDs training workshop held by the United States Government in Songkla, Thailand, Thai fishermen also admitted to officials of the US National Marine Fisheries Services that they caught sea turtles in their trawl nets. The United States concluded scientific evidence showed that shrimp trawling killed alarming numbers of sea turtles in the complainants' waters, as it did everywhere that shrimp trawling was conducted without TEDs in areas where sea turtles were found in the shrimp grounds. A document produced by Malaysia confirmed that "worldwide, the shrimp trawling industry seemed to capture more sea turtles than any other commercial fishery. ... Many of the most intensively trawled waters are adjacent to major sea turtle nesting beaches or feeding grounds".¹⁶⁷ In any event, the justification for the US measures at stake did not depend on shrimp trawling being the single greatest cause of sea turtle mortality in the waters of the complainants.

3.67. The United States recognized that trawlers in the summer flounder fishery captured sea turtles at a rate comparable to those in the shrimp fishery (though the overall impact to sea turtles was much less significant as fishing effort in the summer flounder fishery paled in comparison to the shrimp fishery). Because these trawlers could capture sea turtles at a comparable rate to the shrimp fishery, the United States required the use of TEDs in the summer flounder fishery from North Carolina to Southern Virginia and required that observers be placed on these trawlers as far north as New York to ascertain whether TEDs should be required elsewhere in this fishery.

3.68. India maintained that at Gahirmatha the nesting population of olive ridley had increased over the past ten years. Although some sea turtles were accidentally drowned by fishing activities in this area, Indian experts had opined that the population nesting at Gahirmatha "has not been affected by these activities".¹⁶⁸ Any US concern for the protection and conservation of this endangered species in India should have taken such expert opinion into account before the imposition of import restrictions. The claim that "the greatest human related cause of sea turtle mortality is drowning in shrimp trawl nets" was true only for the case of the United States, and could not be applied to India and universally to the whole world. Indian scientific studies¹⁶⁹ established that in India, the greatest human related cause of sea turtle mortality was the direct exploitation of adult live olive ridley sea turtles, to the tune of 50,000 to 80,000 every season in the late 1970s and early 1980s from their mating and breeding grounds, i.e. near shore and offshore areas of the Gahirmatha coast. Timely and effective steps taken by India under the Wildlife (Protection) Act 1972, implemented and enforced by the Indian Navy, Indian Coast Guard and the various law enforcing agencies of the concerned State Governments, had largely controlled this greatest human related cause of sea turtle mortality gradually since the mid-1980s.¹⁷⁰ The Gahirmatha sea turtle population represented in total aggregate about 50 per cent of the total world population of olive ridley sea turtles, and numerically about 80 per cent of all sea turtles found in Indian territorial waters. In this context, India took exception to the effort of the United States to imply that India was only focusing its efforts on one species of endangered sea turtle on one beach. Of the five species of endangered sea turtles found in India, no commercial exploitation now existed in Indian territorial waters regarding the leatherback and the loggerhead sea turtles. With regard to the hawksbill sea turtles, trade had been eliminated several years ago. Even juvenile hawksbill turtles were recorded in different areas of the Orissa coast during the last ten years, indicating that feeding and developmental habitats existed for this species in areas of breeding grounds of olive ridleys, which were protected by law. Exploitation of green sea turtles had also been eliminated from the early 1980s. Thus, it would be clear to the Panel why India had chosen to focus on the only species of sea turtle which might appear relevant in this case, namely, the olive ridley sea turtle, which mainly nested on one area, Gahirmatha. Due to the conservation measures in India, two new mass nesting areas of olive ridley sea turtles (Devi and Rushikula rookeries) had been located recently. The breeding grounds in front of these rookeries had also been given legal protection. India's action was in accordance with the sea turtle conservation policy and action projects adopted in the Sea Turtle Conservation Strategy of the World Conference on Sea Turtle Conservation held from 26-30 November 1979 at Washington, D.C.

3.69. India submitted that the literature cited by the United States regarding the populations of sea turtles nesting on Indian beaches related to the situation in the late 1970s and contained no data from the period after 1980. No judgement could be made on population status unless data was obtained for all the species. Since there was no commercial exploitation of turtles in India any more, the populations might have improved instead of declining. The experts who had met at the Northern Indian Ocean Sea Turtle Workshop in January 1997 agreed that there was an urgent need for updating data on sea turtle populations in the Northern Indian Ocean. Further, recognising the status of sea turtles in Indian coastal waters, the Government of India and concerned State Governments had taken necessary protection and conservation measures for the eggs, hatchlings and adults covering all the stages of the life cycle. As an example, trade in tortoise shell relating to endangered hawksbill sea turtles had been totally stopped and after 1980 there had been no documented evidence of any trade of hawksbill sea turtles from India. The capture, killing and exploitation of green sea turtles in the local markets of Tamil Nadu State in India had been completely stopped, and there was no record of such exploitation after 1980. Since 1975, the protection of sea turtles in Gahirmatha had been extensively documented. Such protection had been extended even to the coastal estuarine tidal mangrove forest eco-systems, which were linked to the food chain of the sea turtles. The effectiveness of India�s conservation and protection measures had been proved and acknowledged.

3.70. India disagreed with the concern expressed by the United States regarding the absence of "large mass emergences" at Gahirmatha. The "authority" referred to by the United States had not done any work in India, and since she was not familiar with the mass nesting behaviour of the Gahirmatha population, she would not know that the lack of mass nesting behaviour in some years was a feature of the Gahirmatha olive ridley population. Scientific studies over the last two decades indicated that there had been no mass nestings in earlier years either, such as in 1981-1982 and in 1987-1988. Although the reasons for such behaviour was not yet known, the fact remained that this had not affected the population, as recorded in the literature referred to by the United States itself.¹⁷¹ India would, therefore, not accept the veracity of the views contained in the affidavit referred to by the United States¹⁷², especially since the authority quoted admitted herself that her views were based on her discussions with Indian sea turtle experts or published material. Further, India was not aware of any work done on Indian sea turtles by the expert referred to by the United States. The material provided by the United States on India was based on speculation by experts who had not done any work on Indian sea turtles. Therefore, such material could not be used as a factual basis for any determination. Moreover, India did not have any exclusive shrimp trawlers, as referred to by the authority quoted by the United States. The fishing vessels used in India for shrimp harvesting were quite different from the exclusive shrimp trawlers used in the United States. Therefore, the possibility of capture and death of thousands of sea turtles by a few vessels was unlikely. The information given by the United States regarding the recent building of a port adjacent to Gahirmatha was incorrect. What was referred to as a port was probably the Tachua Jetty, which had not been commissioned due to objections from Indian sea turtle experts and environmentalists. This demonstrated the importance the Government attached to environmental issues. India disagreed with the reference that there were no demonstrated recovering populations of olive ridleys anywhere, including in India. As demonstrated in a document produced by the United States¹⁷³, the olive ridley sea turtle population in Gahirmatha in India had in fact stabilized. India had one of the best records as far as conservation and preservation of all aspects of the life cycle of endangered sea turtles was concerned. In fact, India had taken a leading role in organizing national, regional and international meetings and conferences aimed at the protection and conservation of sea turtles. The affidavit submitted by the United States should not be accepted by the Panel, since there was no record of the competent Indian authorities having agreed that TED was the best and only way to conserve sea turtles. In fact, TEDs had not been sufficiently tested in Indian territorial waters to judge their effectiveness, and it would be incorrect to argue that competent Indian authorities had already agreed that these were the best and only way to conserve sea turtles. The demonstration of TEDs referred to by the United States in paragraphs 3.61 and 3.112 could not be taken as adequate, since the demonstration was at sea, had been limited in duration to a single day, which could not be scientifically used to come to the conclusion reached by the United States that TEDs were found to be as effective as when towed in US waters. On the contrary, it established that: (i) TEDs had to be adapted to Indian conditions; (ii) TEDs needed to be tested for a sufficient length of time in Indian waters before India could make any claims regarding their effectiveness; (iii) TEDs were still at an experimental stage in India.

3.71. India noted that the study prepared by IUCN (World Conservation Union) purporting to show that TEDs were required to protect sea turtles in India had actually been co-sponsored by the US Marine Fisheries Service and had been issued following a workshop held in India in January 1997, which was more than seven months after the embargo had been imposed. Thus, it was apparent that views presented in this paper and at the workshop had not been relevant to the US decision to impose the embargo and represented nothing more than a post hoc rationalization to justify the US measures. India disagreed with the US statement that "that document, in addition to recommending the use of TEDs in trawl fisheries where necessary, confirmed the 'alarming decrease' in each of the nesting species". In this context, India was of the view that the United States had combined two different ideas from two different sections of a document¹⁷⁴, one regarding the recommendations about TEDs, and the other from the introduction, thereby conveying an unfortunate and inappropriate cause-and-effect impression. India noted that under the section "[r]esearch and [m]onitoring" of the IUCN study, 10 issues had been identified, of which the first one was "[i]ncomplete data on turtle nesting and feeding habitats in 9 NIO countries". Similarly, the tenth issue was "[i]ncomplete data on accidental mortality in fishing gear, including trawl nets, long lines, drift nets, purse-seines, gill nets and other fishing methods such as dynamite fishing". It might be noted that there was incomplete data to come to any conclusion about the need for TEDs. Moreover, it was under the tenth issue that 6 recommendations had been adopted. The first recommendation was "[a]ssess mortality of sea turtles interacting with high seas long line fisheries, assess turtle by catch by artisanal fisheries and assess the degree to which trawlers and long liners threaten turtles in an NIO". It was only the fifth recommendation that spoke of promoting the use of TEDs for trawl fisheries where necessary.

3.72. Malaysia replied that the portion of the report cited by the United States¹⁷⁵ to argue that nesting of sea turtles in Malaysia occurred "throughout the year" applied only to green turtles and not to all species. Sea turtle nesting in Malaysia being seasonal, Malaysia reiterated that limiting the shrimp trawling season in Terengganu to the months of November to February when turtles had left the Malaysian waters to return home to their distant feeding grounds was effective in protecting sea turtles, as clearly shown in the document cited by the United States.¹⁷⁶ Malaysia also disagreed with the US contention that sea turtles remained in Malaysian coastal waters at the end of the nesting season; it was a basic fact in sea turtle biology that after the completion of the nesting season, turtles performed long-distance migrations to return to distant feeding grounds where they took residence until the next breeding season. The scientific literature cited by the United States to show that trawling was a significant source of mortality for sea turtles was quoted out of context: trawl nets referred to in these studies¹⁷⁷ were mainly fish trawls and not shrimp trawls. This had been confirmed by a later survey whose results showed "driftnets, with mesh sizes exceeding 18 cm (or locally known as "pukat pari"), to be most destructive to marine turtles compared to four other types of fishing gears".¹⁷⁸ The 1992 Malaysia Fisheries Statistics referred to by the United States were for the whole of Peninsular Malaysia, i.e. both east and west coast. The study cited¹⁷⁹ addressed incidental captures in Terengganu, located on the east coast of Peninsular Malaysia, where shrimp catch was very seasonal (from October to February) as shown by the 1994 Annual Fisheries Statistics of Malaysia. Data showed that nesting of green turtles, leatherbacks and olive ridleys in Terengganu was very seasonal.¹⁸⁰ The United States had therefore erroneously cited figures for one location and imposed it upon another location where conditions were different. Finally, studies had shown that incidental captures of green turtles in Malaysia in shrimp trawl nets did not occur all year round.¹⁸¹ Malaysia further submitted that the United States misquoted information from published sources in several occasions. For instance, the study which, according to the United States, discussed the "high rates of incidental sea turtle capture in Malaysia's shrimp trawl fishery"¹⁸² actually showed that in the entire 5 year period, 1991-1996, a total of 37 strandings of turtles had been reported, of which 9 were had been attributed to trawl nets. The author of the paper considered it was a high number. To the United States, where hundreds of turtles stranded every year, 37 strandings over 5 years was also "high". Malaysia was of the view that the term "high" was a relative and subjective matter and pointed out that the United States had given a figure of 30 loggerhead turtles being caught annually in the groundfish otter-trawl fishery in the Gulf of Maine and the Mid-Atlantic Ocean; however, there was no mention of TED requirements in this fishery. The same study stated that "there are no specific studies on incidental capture of sea turtles under the impacts of fishing related activities". Another document which the United States submitted to demonstrate that shrimp trawlers were considered to capture and drown more sea turtles worldwide than any other form of incidental capture¹⁸³ came from an analysis of captures which did not cover Asian waters.

3.73. Malaysia also disagreed with the US assertion that coastal waters provided habitat to immature sea turtles, which were then at risk of being incidentally captured in shrimp trawl nets. No data supported such assertion; satellite tracking had demonstrated that green turtles embarked on long-distance migrations to their feeding grounds once the nesting season was over.¹⁸⁴ Malaysia maintained that loggerheads and Kemp's ridleys were the species most at risk with respect to shrimp trawls since they fed on shrimp and, therefore, lived on shrimping grounds.¹⁸⁵ Contrary to what the United States asserted, all sea turtles did not occupy shrimping grounds. Shrimp trawling had been identified as one of the major threats to the survival of loggerheads and Kemp's ridleys, but there was no mention of shrimp trawling as a major threat for green turtles, hawksbill and leatherbacks.¹⁸⁶ Finally, Malaysia, noted that the capture of a mature hawksbill in a TED equipped trawl, referred to by the United States, occurred during the course of an experiment conducted with the purpose of demonstrating the effectiveness of TEDs for conservation purposes. To this end, the experiment was carried out in Zone A (0-5 nautical miles from the shore), i.e. an area which was off limits to trawling and where the probability of catching sea turtles was higher. However, if the experiment had been conducted in Zone B (5-12 nautical miles from the shore), where trawling was legally permitted, it was highly unlikely that any sea turtle would have been caught. Malaysia maintained that it had taken adequate measures to protect sea turtles from trawling, by prohibiting trawling in certain zones and by establishing offshore refuges for sea turtles where all harmful gear were banned.

3.74. Pakistan maintained that Pakistani shrimpers left their nets in the water for a duration of approximately 30 to 60 minutes. These tow times were in line with the tow time restrictions applicable to US shrimpers that did not retrieve their nets by mechanical means. The United States referred to a statement made by Ms. Fehmida Firdous at the Northern Indian Ocean Turtle Workshop to the effect that tow times common in Pakistani shrimp industries were up to two hours. Pakistan noted that, after this statement was made, Ms. Firdous had been asked by the Chairman of Pakistan Sea Food Industries Association to substantiate the basis of her claim. Ms. Firdous advised the Chairman that she had not conducted a study on her own and was unable to provide any other substantiation. Pakistan added that it had a programme to monitor the rate of turtle drowning in connection with shrimp trawl operations. This programme, which was administered by the Sindh Wildlife Department, gave strong incentive to report sea turtle drowning in connection with shrimp trawling. The Sindh Wildlife Department offered a cash reward of Rs. 1000, i.e. almost 50 per cent of average monthly income of a fisherman in Pakistan, to fishermen who gave the tag number of sea turtle caught in the fishing net. Since the programme had started, no fisherman had claimed this reward; thus, the incidental catch rate of sea turtles in shrimp trawling operations was presumed to be de minimis.

3.75. Thailand maintained it had demonstrated that a combination of strict protection of nesting beaches and an egg retrieval, incubation and release programme had been successful in stabilizing nesting sea turtle populations in protected areas. Indeed, as noted in a document submitted by the United States with respect to the Khram Island area, "[t]he fact that the nesting beaches have been protected for more than four decades is the logical reason for the relatively high number of nesting females seen there today".¹⁸⁷ Malaysia had also found that an egg retrieval, incubation and release programme was successful in increasing the number of nesting sea turtles after a 15-year gap during which the green turtles grew to sexual maturity. Indeed, a 1989 study in Malaysia concluded that, "[t]oday the turtle population [in Sarawak sanctuary area] has reached an equilibrium level. It will remain at this level if we continue to hatch and release young turtles at a high rate ...".¹⁸⁸ Regarding the argument made by the United States that the Monitoring Surveys were not designed to provide information on incidental catch of inedible species but rather were designed to collect data on the harvesting of shrimp and other edible marine creatures, Thailand stressed that all forms of catch had been recorded on the original study worksheets, edible and inedible. While only the quantities of edible catch had been included in published tables, a note to those tables indicated that the catch of inedible species and things, such as sea cucumbers, jellyfish, sea urchins, sand dollars, corals and sponges, had also been recorded in the study. If sea turtles had been caught, this fact would have been noted under the same methodology. However, the study turned up no incidence of the catch of sea turtles over a thirty-year period. Thus, the United States appeared to have erroneously extrapolated from conditions found along the coast of the United States in demanding that Thailand and other Members, where conditions were quite different, expended scarce resources to install TEDs in shrimp trawl nets. Other alternative means, involving less cost and significantly less disruption to shrimp trawl fisheries, had proven effective in stabilizing sea turtle populations in the area.

3.76. The United States considered it had submitted scientific studies to the Panel which did show that shrimp trawling was a significant cause of sea turtle mortality in Indian waters.¹⁸⁹ A document submitted by Malaysia reported more than 5,000 strandings of olive ridley turtles along India's Orissa coast "due to accidental capture in trawl nets".¹⁹⁰ Direct exploitation of sea turtles was perhaps once the largest cause of sea turtle mortality in India and elsewhere in the region, but shrimp trawling was today a significant cause of such mortality in India¹⁹¹ and in the waters of the other complainants. The scientific literature submitted by the United States confirmed that each population of sea turtles in India other than the olive ridley at Gahirmatha was in serious decline, and that even that population was in jeopardy. Even several documents submitted by Malaysia criticized the sea turtle protection efforts that governments had taken to date in the region. The trawl gear used in the United States and in India, as well as in the other complainants' countries, were the same basic "otter trawl" design, i.e. a gear allowing a net to be dragged along the sea bottom and captured virtually everything it encountered, including sea turtles. The United States maintained that Dr. Plotkin, whose affidavit was rejected by India, was a true expert in the field of sea turtle conservation and had worked in India for the past 3 years. Dr. Plotkin contradicted several of India's assertions, noting in particular that "[a] declining trend in the Indian olive ridley nesting population appears imminent and is likely due to the indirect capture and mortality of turtles in fisheries, particularly the shrimp fishery (bottom trawling from mechanized vessels)".¹⁹² As to Malaysia's argument that limiting shrimp trawling to certain times of the year prevented incidental mortality of sea turtles, the United States noted that a chart established by the Government of Malaysia and showing landings of "marine fish", including shrimp, by month through 1995, showed that the quantities of shrimp landings varied very little month by month for each shrimp species. This called further into question the seasonal restrictions on shrimping that Malaysia had supposedly introduced.

3.77. India replied that the data from Indian sources provided to the Panel showed that shrimp trawling was not a significant cause of sea turtle mortality in Indian waters.¹⁹³ Moreover, as India previously pointed out, there was no exclusive shrimp trawling by Indian fishermen, and thus any inferences by the United States linked to "shrimp trawling" would ipso facto not be applicable to India. Indian fishermen did not trawl exclusively for shrimp, but for all types of fish. Since the function of trawlers in Indian waters was different, it was logical that the design of Indian trawlers be different from shrimp trawlers used in the United States. Finally, the 5,000 strandings of olive ridley turtles did not occur due to trawl fishing activities, but were due to all types of fishing gear. Further, the figure of 5,000 deaths had to be seen in the context of a sea turtle population of 1.2 million olive ridleys, where direct exploitation of adults to the scale of 50,000 to 80,000 per year had been completely stopped. The effectiveness of India's sea turtle protection and conservation programmes had been acknowledged, inter alia, by the Director of National Marine Fisheries Service of the United States, the IUCN Marine Turtle Conservation Strategy and Action Plan for the Northern Indian Ocean, the Mombasa, Kenya Meeting on Integrating Marine Conservation in the Indian Ocean, 1996 and Beyond.

To Continue With Chapter 3.78

¹⁵¹ C.J. Limpus, (1995), Global Overview of the Status of Marine Turtles: A 1995 Viewpoint, in Biology and Conservation of Sea Turtles, K.A. Bjorndal ed., p. 606.

¹⁵² Affidavit of Pamela Plotkin, Ph.D., 22 July 1997, document submitted by the United States to the Panel, paragraph 8.

¹⁵³ Country Report for Malaysia, presented at the Northern Indian Ocean Sea Turtle Workshop and Strategic Planning Session 13-18 January 1997 in Bhubaneswar, Orissa, India, p. 4.

¹⁵⁴ Ibid., p. 3.

¹⁵⁵ M.S. Suliansa, et. al., (1996), Impact of Fishery Related Activities on Sea Turtles, paper presented at the National Seminar/Workshop on Marine Turtle and Terrapin Management, 22-23 October 1996, Cherating, Malaysia.

¹⁵⁶ E.H. Chan et. al, (1988), The Incidental Capture of Sea Turtles in Fishing Gear in Terengganu, Malaysia, Biological Conservation, No. 43, pp. 1-7. The United States also referred to J.A. Mortimer, (1990), Marine Turtle Conservation in Malaysia, Proceedings of the Tenth Annual Symposium of Sea Turtle Biology and Conservation, p. 21; S.K. Tow and E. Moll, (1995), Status and Conservation of Estuarine and Sea Turtles in West Malaysian Waters, Biology and Conservation of Sea Turtles, K.A. Bjorndal ed., pp. 339-347; H.C. Liew, (1997), Country Report for Malaysia, paper presented at the Norther Indian Ocean Sea Turtle Workshop and Strategic Planning Session, Bhubanseswar, Orissa, India, 13-18 January 1997, p. 5 ("Sightings and strandings of dead turtles along the Malaysian coast still occur, many with clear indications that they had entangled in nets and ropes from fishing gears. Though some stranding records are available, they are generally incomplete and largely underestimate the number of turtles acutally killed in fishing gears").

¹⁵⁷ E.H. Chan, H.C. Liew and A.G. Mazlan, (1987), The Incidental Capture of Sea Turtles in Fishing Gear in Terengganu, Malaysia,Fisheries and Marine Science Center, Universiti Pertanian Malaysia.

¹⁵⁸ H.C. Liew, (1997), Country Report for Malaysia, paper presented at the Northern Indian Ocean Sea Turtle Workshop and Strategic Planning Session, Bhubanseswar, Orissa, India, 13-18 January 1997, p. 3.

¹⁵⁹ The United States noted that the "time and area closures" Malaysia claimed to have instituted were, in any event, of doubtful utility in protecting sea turtles. See Statement of Deborah Crouse, Ph.D., 23 July 1997, paragraph 14 ("time and area closure are also ineffective since closures only protect the large juvenile or adult turtles while they are in the area enclosed, or during the time when the shrimping is banned and not at other times or places").

¹⁶⁰ Ibid., p. 9.

¹⁶¹ National Research Council, National Academy of Sciences, (1990), The Decline of Sea Turtles: Causes and Prevention, Washington D.C., p. 145.

¹⁶² The United States noted that the "Abstract" to the Monitoring Surveys, which appear in a different type-face from the rest of the study, contained the following final sentence: "Besides, the monitoring surveys at night-time never obtain any sea turtle in the catch". The United States noted that this sentence bore no relationship either to the remainder of the paragraph in which it appeared or to the document as a whole.

¹⁶³ S. Chantrapoornsyl, (1997), Status of Marine Turtles in Thailand, Phuket Marine Biological Center, p. 5.

¹⁶⁴ S. Settle, (1995), Status of Nesting Populations of Sea Turtles in Thailand and Their Conservation, in Marine Turtle Newsletter, No. 68, p. 9.

¹⁶⁵ E. Stuart and M. Cartin, (1995), Conservation of Sea Turtles at Two National Parks on the Andaman Sea Coast of Thailand, in Marine Turtle Newsletter, No. 67, p. 6.

¹⁶⁶ G. Hill, (1992), The Sustainable Sea Turtle, in Marine Turtle Newsletter, No. 58, p. 3. According to the United States, this publication also made clear that sea turtles were found in the "open sea" in Thailand, thus refuting a claim made by Thailand that sea turtles were found only in "coral reefs and grassy areas."

¹⁶⁷ H.O. Hillestad et. al., (1982), Worldwide Incidental Capture of Sea Turtles, Biology and Conservation of Sea Turtles, K.A. Bjorndal ed., p. 491.

¹⁶⁸ 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.

¹⁶⁹ M.C. Dash and C.S Kar, (1990), The Turtle Paradise - Gahirmatha, Interprint, chapter 7; C.S. Kar and G.S. Padhi, (1992), Biology, Life History and Conservation Strategy of the Olive Ridley Sea Turtles in Orissa, Oriforest, Vol. 1, No. 2, pp. 36-40.

¹⁷⁰ C.S. Kar and G.S. Padhi, (1992), Biology, Life History and Conservation Strategy of the Olive Ridley Sea Turtles in Orissa, Oriforest, Vol. 1, No. 2, pp. 36-40.

¹⁷¹ P. Mohanty-Hejmadi, (1994), Biology of the Olive Ridleys at Gahirmatha, Orissa, India, Proceedings of the Fourteenth Annual Symposium of Sea Turtle Biology and Conservation, p. 90.

¹⁷² Affidavit of Pamela Plotkin, Ph. D, 22 July 1997, document submitted by the United States to the Panel.

¹⁷³ P. Mohanty-Hejmadi, (1994), Biology of the Olive Ridleys of Gahirmatha, Orissa, India, Proceedings of the Fourteenth Annual Symposium of Sea Turtle Biology and Conservation, p. 90.

¹⁷⁴ IUCN (World Conservation Union), (1997), A Marine Turtle Conservation Strategy and Action Plan for the Western Indian Ocean, pp. 1 and 11.

¹⁷⁵ H.C. Liew, (1995), Country Report for Malaysia, paper presented at the Northern Indian Ocean Workshop and Strategic Planning Session, Bhubaneswar, Orissa, India.

¹⁷⁶ E.H.Chan, H.C. Liew and A.G. Mazlan, (1988), The Incidental Capture of Sea Turtles in Fishing Gear in Terengganu, Malaysia, Fisheries and Marine Science Center, Universiti Pertanian Malaysia, Table 2.

¹⁷⁷ E.H. Chan et. al, (1988), The Incidental Capture of Sea Turtles in Fishing Gear in Terengganu, Malaysia, Biological Conservation, No. 43, pp. 1-7; S.K. Tow and E. Moll, (1995), Status and Conservation of Estuarine and Sea Turtles in West Malaysian Waters, Biology and Conservation of Sea Turtles, K.A. Bjorndal ed., pp. 339-347.

¹⁷⁸ I. Kamarrudin et. al., (1996), Status of Nesting Population and Related Research on Marine Turtles in Peninsular Malaysia, Paper presented at the First SEAFEDC Workshop on Marine Turtle Research and Conservation, 15-18 January 1996, Kuala Terengganu, Malaysia, p. 17.

¹⁷⁹ E.H.Chan, H.C. Liew and A.G. Mazlan, (1988), The Incidental Capture of Sea Turtles in Fishing Gear in Terengganu, Malaysia, Fisheries and Marine Science Center, Universiti Pertanian Malaysia.

¹⁸⁰ I. Kamarrudin et. al., (1996), Status of Nesting Population and Related Research on Marine Turtles in Peninsular Malaysia, Paper presented at the First SEAFEDC Workshop on Marine Turtle Research and Conservation, 15-18 January 1996, Kuala Terengganu, Malaysia.

¹⁸¹ Ibid.

¹⁸² M.S. Suliansa, et. al., (1996), Impact of Fishery Related Activities on Sea Turtles, Paper presented at the National Seminar/Workshop on Marine Turtle and Terrapin Management, 22-23 October 1996, Cherating, Malaysia. The study stated that "mortality of sea turtles is recorded to be high in the Turtle Islands Park of Sabah during the shrimping season from November to April".

¹⁸³ H.O. Hillestad et. al., Worldwide Incidental Capture of Sea Turtles (1982), Biology and Conservation of Sea Turtles, K.A. Bjorndal ed., pp. 489-495.

¹⁸⁴ H.C. Liew, E.H. Chan, F. Papi and P. Luschi, (1995), Long Distance Migration of Green Turtles from Redang Island, Malaysia: The Need for Regional Cooperation in Sea Turtle Conservation, Proceedings of the International Congress of Chelonian Conservation, 6-10 July 1995, Confaron, France.

¹⁸⁵ Malaysia referred to the following study: Kemp's Ridley Sea Turtle (Lepidochelys kempii) Status Report, (1996), Report of the Marine Turtle Expert Working Group".

¹⁸⁶ National Research Council, Academy of Sciences, (1990), Decline of the Sea Turtles: Causes and Prevention, Washington, D.C.

¹⁸⁷ S. Settle, (1995), Status of Nesting Populations o f Sea Turtles in Thailand and Their Conservation, Marine Turtle Newsletter, No. 68.

¹⁸⁸ Leh, (1989), The Green Turtle, Chelonia Mydas (L.), in Sarawak: Is There a Future?, Annual Symposium of the Malaysian Society of Marine Science.

¹⁸⁹ B.C. Choudhury, (1997), Country Report: India - Sea Turtle Status, Conservation and Management in India, p. 2; P. Mohanty-Hejmade, (1994), Biology of the Olive Ridleys of Gahirmatha, Orissa, India, Proceedings of the Fourteenth Annual Symposium of Sea Turtle Biology and Conservation, p. 90; IUCN (World Conservation Union), (1997), A Marine Turtle Conservation Strategy and Action Plan for the Northern Indian Ocean, p. 11; Statement of Deborah Crouse, Ph.D. paragraph 8; Affidavit of Pamela Plotkin, Ph. D., 22 July 1997, document submitted to the Panel by the United States, paragraphs 6-10.

¹⁹⁰ B. Pandav, B.C. Choudhury and C.S. Kar, (1994), Olive Ridley Sea Turtle (Lepydochelys olivacea) and its Nesting Habitats Along the Orissa Coast - A Status Survey, Wildlife Institute of India, p. 29.

¹⁹¹ See references indicated in footnote 189.

¹⁹² Affidavit of Pamela Plotkin, Ph. D., 22 July 1997, document submitted to the Panel by the United States, paragraph 6.

¹⁹³ See above paragraph 68, and the references therein.