3.78. Malaysia noted that the chart referred to by the United States to show that shrimp was landed throughout the year contained data for the whole of Malaysia, but not specifically for the east coast of Peninsular Malaysia.

4. Use of TEDs

3.79. The United States considered that a TED was a simple, cheap and highly effective solution to the problem of sea turtle mortality in shrimp trawl nets. TEDs had been first designed in the United States by the NMFS beginning almost 20 years ago. Since then, TEDs had become more effective and less expensive.¹⁹⁴ They had been developed and manufactured on a commercial basis in a wide variety of nations. TEDs ranged in price from US$75-500. A completely installed TED, i.e. a TED including the basic grid device, all webbing, flaps and flotation devices and which could be installed in the shrimp trawl net with a single simple cut, ranged in price form US$300-400. A TED that was installed by the fisherman cost about US$75-100. TEDs constructed in developing countries with local materials cost a great deal less. During the TED training workshops conducted by the United States in India, Indian participants had estimated the cost of constructing and installing a TED made from local materials as ranging from US$8-12. When the United States provided TEDs training, it included construction of a TED from locally available material as part of that training. TEDs were very easy to install: they were sewn into the trawl net, much the same way fishermen sewed other types of nets. Installation of a TED did not require fishermen to acquire new skills. Once installed, the TED did not affect the way in which the trawl was towed. Therefore, through a minimum of trial and error, shrimp fishermen who were new to TEDs could readily learn to use them properly.

3.80. The US Government had conducted a detailed, comprehensive study, involving thousands of hours spent by neutral observers aboard shrimp trawl vessels. Based on this study and its own exhaustive analysis, the US National Academy of Sciences concluded in 1990 that properly installed TEDs - of the sort required for use in the United States for more than seven years - were a practical and cost-effective way to minimize the unintentional drowning of sea turtles in shrimp trawl nets. Properly installed TEDs approached 97 per cent efficiency in allowing sea turtles to escape from shrimp trawl nets, while limiting shrimp loss rates to 1-3 per cent.¹⁹⁵ TEDs also released debris and other unwanted by-catch from shrimp trawl nets. TEDs were now widely used in shrimp trawl fisheries throughout the Western Hemisphere. More recently, African and Asian countries had begun requiring their use as well. Thailand had instituted a comprehensive TEDs programme in 1996. Also in 1996, a workshop organized by the government of Orissa in India recommended that the use of TEDs "should be made mandatory" throughout that region of the world.¹⁹⁶ Similarly, the Marine Turtle Conservation Strategy and Action Plans developed by IUCN (World Conservation Union) for the Western Indian Ocean, and the Northern Indian Ocean, endorsed the use of TEDs in that region.¹⁹⁷

3.81. India disagreed with the costs of TEDs indicated by the United States (US$75-500), and noted that costs had to be considered in context. While TEDs might be inexpensive by US standards, they were certainly not cheap to owners of fishing vessels in India. The average annual income of fishermen in India was only around US$300. Moreover, the US figure did not include the cost of installation and training, which would make any TEDs programme in India more expensive than projected by the United States. Thus, while TEDs might be cheap by US standards, they could not be considered cheap by Indian fishermen. The cost of a TED depended on its size and model. It was India's understanding that TEDs imported from abroad cost approximately US$200 per piece. Imported TEDs suitable for deep sea fishing vessels ranged in cost from US$500 to US$600 per piece. India questioned the cost indicated by the United States for TEDs made with local materials (US$8-12). The design of Indian trawlers was very different from US trawlers; therefore, NMFS gear specialists had found, during the preparation of the 1996 Orissa workshop that only one out of seven models of TED ("Georgia Jumper") was suitable. At the November 1996 workshop, the gear specialists had demonstrated the fabrication, installation and one time fishing in the sea. The TED was constructed from locally available steel rods but the floats, trimmings and angle meter had been brought from the United States. The cost of the steel rods alone was about US$60. With respect to other costs, India did not have relevant data regarding loss of shrimp/fish associated with the use of TEDs. Further, India did not have any information concerning the costs associated with training fishermen to use TEDs properly.

3.82. Another practical issue associated with Indian fisheries, which did not appear to be present in US fisheries, was that other fish caught in nets during trawling, in particular some large fish, were also sought for commercial purposes by Indian fishermen. However, such fish could pass through the grid of a TED and thus escape from the net. This resulted in an increase in catch loss, and corresponding increase in costs for Indian fishermen, which had not been taken into account by the United States in promulgating its TEDs requirements. Fishing methods in India and the United States were completely different and the United States had not so far demonstrated that TEDs could retain large fish in fishing trawl nets. At the Paradeep workshop, US experts had realized that enlarging the distance between the TED grills to retain large fish would result in entangling the heads of turtles within the grills, and thus, in human-induced mortality of sea turtles in TEDs. This practical problem had been noted by participants at the Cochin Workshop, including the US experts present, but no suggestions were provided concerning how to solve it. According to Indian experts, the effectiveness of the TED in Indian waters could only be ascertained after a detailed study covering a reasonable length of time. Issues such as the behaviour of certain models of TEDs and of the TED-equipped net while trawling, the loss of catch (shrimp and fish) while using TEDs, and the effectiveness of the various models under Indian conditions, had to be studied in detail for sufficiently long periods before the Government of India could decide on the suitability of the TEDs in Indian waters. Indian fishermen were apprehensive about the effect of TEDs on different target fish. In the United States, specific TEDs were designed for different types of fishing and, hence, in India only one TED would not be suitable for all types of fishing. The fabrication, installation and monitoring in mass scale had to be organized; the escape opening dimensions had to be determined (for example, it was different in the Gulf of Mexico and in the Atlantic). Therefore, TED technology transfer to suit local fishing was a long process and could not be implemented immediately. India also pointed out that it was still in the process of examining whether and where TEDs should be used to reduce incidental deaths of sea turtles. India stressed, however, that its sea turtles populations were not in danger, even without the use of TEDs.

3.83. With respect to whether TEDs were "simple" and "highly effective", India adopted Thailand's arguments (see paragraph 3.86). Regarding the TEDs workshop conducted in Orissa, in November 1996, i.e. after the embargo on Indian shrimp had been imposed, India noted that the participants at this conference, including US representatives from NMFS, expressed "deep concern at the ban imposed by the US Government on shrimp imports".¹⁹⁸ India also noted that a notice published by the Sea Turtle Restoration Project of Earth Island Institute specifically addressed US enforcement problems. The notice stated: "citing the federal government's apparent inability to end the drowning deaths of thousands of endangered sea turtles every year in US waters, a coalition of over 45 environmental and animal protection organizations and concerned businesses has launched a consumer-powered campaign to end the slaughter". The notice further stated that, despite laws requiring US shrimpers to use TEDs, "in 1995 over 2,000 sea turtles washed up dead on US beaches. These high numbers support the widely-held belief that many US shrimpers, particularly in the Gulf of Mexico, are disabling their TEDs because they fear a reduced catch".¹⁹⁹

3.84. Malaysia disagreed with the claim made by the United States that drowning of sea turtles in shrimp trawls could be virtually eliminated through the use of TEDs and noted that even in the United States the mandatory use of TEDs since 1992 had not resulted in the elimination of mortalities. For example, turtle stranding in the United States in May 1996 had been reported to be more than twice the five year historic average in several zones, while in 1993-94 Kemp's ridley mortalities had reached a record high.²⁰⁰ Malaysia also considered that, contrary to what was asserted by the United States, the use of TEDs was not necessarily "widely used in shrimp trawls throughout the Western Hemisphere". Even in the United States, there had been non-compliance among local shrimpers. In 1994, large numbers of dead turtles had been washed ashore on Texas beaches, which was attributed to failures of NMFS to enforce the TED regulations. Many shrimpers had been found to have disabled or misinstalled TEDs in their nets.²⁰¹ As to the cost of TEDs, Malaysia said that a SEAFDEC-developed TED adapted to Malaysian trawls and its installation was between Ringgit 90 to 120. The practical aspects of using TEDs in Malaysia were: (i) the joint efforts under SEAFDEC resulted in further work²⁰² at localizing the SEAFDEC developed TED to Malaysian conditions and the introduction of the TED in an official launch in Sigari, Perak; (ii) practical difficulties were envisaged in the enforcement of the use of TEDs because local fishermen contended that in their fishing experience for shrimps, they rarely caught sea turtles; (iii) the reluctance of fishermen to volunteer information on the number of turtles caught.

3.85. Pakistan noted that on average Pakistani fishermen earned the equivalent of approximately US$60-700 per year. The United States had indicated that TEDs ranged in price from US$75-500. Even ignoring additional costs such as training and loss of catch, the United States estimate amounted to approximately 10 to 70 per cent of a Pakistani shrimper's annual income. Thus, while TEDs might be considered to be cheap for US shrimpers, they were not cheap for Pakistani shrimpers. Indeed, conditioning importation of shrimp upon the purchase of such expensive equipment was inconsistent with the language of the preamble of the WTO Agreement, which required Members to enhance the means for protecting and preserving the environment in a manner consistent with the Member's respective needs and concerns at different levels of economic development. Pakistan further noted that even in the United States, where shrimpers had been working with TEDs for more than ten years, improper use of TEDs had been proven to cause a high level of mortality among sea turtles. With regard to whether TEDs were a "simple" and "highly effective" solution, Pakistan adopted the arguments made by Thailand (see paragraph 3.86).

3.86. Thailand noted that while the cost of a single TED was relatively modest (the cost of the TED itself, plus installation, was US$100 per vessel), the consequential costs of TEDs use in Thailand had been enormous, principally in lost shrimp catch, estimated at 30-40 per cent. Thailand estimated that the cost of TEDs purchase, installation, training and use (including lost catch to date) amounted to US$3,200 per vessel.²⁰³ This cost would rise as TEDs use and corresponding loss of catch continued. Thailand argued that it was also inaccurate to suggest that TEDs were universally 97 per cent effective in preventing sea turtle deaths or that shrimpers could easily learn how to use this device. As recently as 1994, after several years of use in the United States, there were high numbers of dead sea turtles stranded along the coasts of Texas, Louisiana, Georgia and northeastern Florida. NMFS had found that the major cause of the strandings was the improper use of TEDs by shrimpers in the Gulf of Mexico.²⁰⁴ Additionally, high numbers of strandings occurred in various locations during 1995 and 1996. NMFS stated that "[a]mong the identified causes of the continued strandings have been the improper use of TEDs and the use of inefficient TEDs by shrimp fishermen".²⁰⁵ These findings belied US claims that through a minimum of trial and error, shrimp fishermen who were new to TEDs could readily learn to use them properly. In addition, the NMFS had determined that approval of the Morrision, Parrish, Andrews, and Taylor soft TEDs should be removed because those TEDs were ineffective.²⁰⁶ NMFS noted that proper installation of soft TEDs was extremely difficult, that problems inherent in using soft webbing material as a turtle excluder device were serious and widespread and that the "Andrews soft TED, as presently designed, is ineffective at excluding turtles".²⁰⁷ Although NMFS had made these determinations in December 1996, actual removal of the approval of these TED designs was not scheduled to take effect until December 1997. Specifically, in a Conference Report accompanying the Omnibus Consolidated Appropriations Act, 1997, the NMFS had been directed "not to decertify any turtle excluder devices until every effort has been made, working with industry and others, to improve or modify existing devices to increase turtle escapement".²⁰⁸ NMFS had also found problems with certain bottom-opening TEDs. Specifically, tests in June 1996 revealed "previously unknown problems with turtle capture in straight-bar, bottom-opening TEDs installed at high angles and fitted with long webbing flaps".²⁰⁹ Thus, it was not true that TEDs technology was tried, tested and effective as suggested by the United States. This technology was still very much under development.

3.87. The United States noted that none of the complainants had questioned the effectiveness of TEDs in allowing sea turtles to escape. Since the United States had begun requiring TEDs, populations of Kemp's ridley and loggerhead sea turtles found in the United States had stopped declining and were well on their way to recovery. Indeed, there was no other effective way known to protect sea turtles from drowning in shrimp trawl nets. As to the alleged "30-40 per cent" losses of shrimp from trawl nets equipped with TEDs, the United States noted the following. A very recent report on Experiments on the Use of Turtle Excluder Devices in Malaysian Waters²¹⁰ documented a total of 47 trawling experiments done in Malaysian waters to test the suitability of TEDs for Malaysian fishermen. The report concluded that, while a minimal amount (between 0.01 per cent and 7.7 per cent) of fish and "trash fish" might have escaped from the TED-equipped trawl nets, "the result showed that TEDs prevented marine turtles from being trapped in the net but did not affect the catch of fish and shrimp ... Therefore, the small and medium size of TEDs were found to be suitable for use by Malaysian fishermen".²¹¹ This report also referred to another 1997 study prepared by C. Bundit et. al., on recent experiments conducted in Thailand on the "Thai Turtle Free Device". The Malaysian report cited the Bundit study as having found average escape rates of shrimp and fish from trawl nets equipped with the Thai Turtle Free Device as "1.8 per cent and 1.04 per cent for day and night time operation, respectively".²¹² This finding disproved Thailand's assertions that TEDs caused shrimp losses of 30-40 per cent. The United States also referred to a document produced by Malaysia, which described the results of experiments with the "Super Shooter" TED and the Thai Turtle Free Device in Thai waters and indicated: "[a]fter the second experiment, results showed that by using [the] Super Shooter and [the] TTFD, the escape rate for the total catch [not just shrimp] was acceptable at a percentage range of 1.91 and 1.84, respectively".²¹³

3.88. The United States disagreed with India's claim that NMFS gear specialists had found that only the "Georgia Jumper" TED was suitable for Indian waters off the coast of Orissa. In fact, the United States had never stated that any particular TED design was most appropriate. Rather, during training sessions, the United States often demonstrated the Super Shooter TED, and constructed a TED from locally available material. Both types of TEDs were left with the host country. In the particular case of India, the NMFS gear specialist had concluded that any type of TED would work in Indian waters off the coast of Orissa and had informed the Indian participants accordingly. Thailand's assertion that TEDs cost fishermen thousands of dollars did not withstand scrutiny. The cost of a TED to individual Thai fishermen had been zero because their government had supplied them TEDs free of charge. Moreover, Thailand tried to impute to its fishermen the cost to the government of implementing a TED programme. The United States also questioned the governmental costs claimed by Thailand in this respect, and noted that Thailand did not factor in the savings in sea turtles produced. The claims regarding the supposed loss of shrimp conflicted directly with studies of TEDs conducted in the United States, Malaysia, Thailand and elsewhere which showed that TEDs caused virtually no shrimp loss. Moreover, the documents submitted by Thailand purporting to show higher loss rates was based largely on interviews with shrimp fishermen, who had a strong incentive to overstate problems in using TEDs. Thailand had not submitted the same sort of evidence that the United States had provided, i.e. scientific studies and data generated by neutral observers stationed aboard shrimp trawl vessels. Finally, TEDs could save shrimp fishermen money. TEDs excluded from the nets not only sea turtles but large debris, and thus allowed more shrimp to be caught in a given tow. TEDs prevented the shrimp in the nets from being crushed by the debris. TEDs also saved the fishermen time in sorting the catch at the end of the tow.

3.89. The United States disagreed with the assertions made by some of the complainants that it was not effectively enforcing the use of TEDs in US waters. The requirements with respect to US vessels were enforced vigorously and had achieved a high rate of compliance. The United States only asked that shrimp imported into its market be harvested in accordance with comparable standards. The United States considered that the complainants mischaracterized several elements of the US TEDs programme. The use of soft TEDs was already prohibited in much of US shrimp fishery, particularly in those areas designated as "Shrimp Fishery Sea Turtle Conservation Areas", where sea turtles faced the highest risk if incidental capture. TEDs were required in try nets in these areas as well. Moreover, the use of soft TEDs would be prohibited everywhere in US waters as of 19 December 1997. The United States conceded it experienced elevated levels of sea turtle strandings in 1994. Those sea turtles deaths had been attributed primarily to improperly installed TEDs and improperly floated TEDs. In response, the United States had increased enforcement and implemented an Emergency Response Plan. As a result, strandings had decreased significantly, demonstrating that TEDs, when used properly, were very effective in protecting sea turtles from mortality in shrimp trawls.

3.90. India could not agree with the United States that TEDs were simple: the simplicity of TEDs was still a matter of adapting their design to the local conditions. This was yet to be examined in India. Moreover, TEDs were expensive, as explained in paragraph 3.81. India was unable to accept the US estimate that the price of constructing a TED from locally available materials was approximately US$8-12. As noted earlier, TEDs were not in commercial use in India at the moment. From India's experience in fabricating TEDs locally, the cost varied from location to location, and would be higher than the figure given by the United States. The assertion that TEDs virtually eliminated sea turtle mortality in shrimp trawl nets could be true in the case of the United States, but was not applicable to India. This was so because in areas of high turtle congregation (i.e. in concentrated breeding and mating grounds) substantial mortality of adult turtles occurred by the slashing of propellers of all types of mechanized fishing vessels. Promoting trawling activity through the use of TEDs in such high turtle congregation zones might have an adverse impact by disturbing the mating pairs during the peak breeding season, thus in fact affecting the reproductive potential of the population as a whole. Therefore, India believed in giving full protection to this area by restricting fishing rather than allowing trawling with TEDs. Further, in such high turtle congregation areas, there was evidence that, during the peak breeding season, large numbers of adult turtles, including mating pairs and gravid females, very often got simultaneously entangled in fishing nets. In such situations, there was every possibility that the turtles would block the escape route of any TED which might be installed, resulting in the death of turtles as well as loss of fish catch. No study had been done so far regarding the effectiveness of TEDs in such situations.

3.91. Regarding the alleged recovery of the Kemp's ridley and loggerhead populations in the United States, Malaysia submitted that a study on Kemp's ridley indicated that the recovery of that population was due to egg protection and to protection of turtles at sea.²¹⁴ In the case of loggerheads, not all populations had shown recovery, as stated in a document submitted by the United States.²¹⁵

3.92. Thailand noted that the Bundit study²¹⁶ referred to by the United States had been conducted under conditions that did not replicate normal operating circumstances in the Thai shrimp fleet. Specifically, the study methodology explained that trawling occurred over a period of only one hour. Trawling over more representative periods increased the amount of debris caught in the TEDs, thereby increasing shrimp loss. The study already referred to by Thailand, representing actual operating experience, showed a much higher shrimp loss.²¹⁷ Moreover, reports published in the United States indicated that US shrimpers were routinely disabling their TEDs. It was unlikely that they would take the time and trouble to do this, as well as incurring the risks of detection, if they were not also experiencing losses of catch exceeding the very low rates indicated by the United States.

3.93. The United States replied that India offered no evidence to disprove that a TED made from local materials would cost from US$8 to 12. Second, it would be more meaningful to compare the cost of a TED to the total capital costs to an owner of a shrimp vessel of operating that vessel, rather than to the earning of an individual fisherman on the vessel. Even in developing countries, such a comparison would show that TEDs represented a very small fraction of such costs. Shrimp vessels in many developing nations, including Belize, Brazil, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Guyana, Honduras, Indonesia, Mexico, Nicaragua, Nigeria, Panama, the People's Republic of China, Trinidad and Tobago, and Venezuela were using TEDs in a cost-effective way. Tests on TEDs conducted in Malaysia and Thailand had proved their effectiveness in those waters.²¹⁸ India provided no evidence to show that shrimp trawling conditions in India were different than those in Malaysia and Thailand. The otter trawl gear used in India was the same as that used in most other places of the world, including the United States. Moreover, the United States and other nations had tested TEDs in all marine habitats where shrimp were found, including in the complainants' region during workshops, and had found no meaningful differences of conditions from those elsewhere in the world. As to the argument that pairs of mating turtles could block the escape route of a TED, the United States was not aware of any scientific data on the question and noted that if such sea turtles would definitely not escape from a trawl net without a TED, they might escape from a TED-equipped net.

5. International Environmental Agreements and the Use of TEDs

3.94. The United States considered that the use of TEDs had become a recognized multilateral environmental standard, fulfilling twin commitments on the part of the international community to conserve endangered species, such as sea turtles, and to minimize their unintentional mortality in fishing operations. The international community had long recognized the need to protect endangered species such as sea turtles. All species of sea turtles appeared on Appendix I to CITES, having first been placed on that Appendix in 1975. Under the terms of CITES, trade in these species must accordingly be subject to "particularly strict regulation in order not to endanger their survival and must be authorized only in exceptional circumstances".²¹⁹ As a consequence of their listing on Appendix I to CITES, international trade in sea turtles, and in their eggs, parts and products, was virtually prohibited. As parties to CITES, the complainants were obligated under international law to impose import prohibitions as a means of conserving these sea turtles. The United States observed that by requiring its parties to prohibit international trade in sea turtles, CITES undoubtedly had advanced the cause of sea turtle conservation. By itself, however, this prohibition did nothing to address the incidental mortality of sea turtles in trawl nets, which for many years has constituted a far more serious threat to sea turtles than international trade. The CITES prohibitions, like the prohibitions on the intentional killing of sea turtles, had not prevented the continuing decline of sea turtles worldwide.

3.95. The international community had also long been aware of the threat to sea turtles and to other living resources as a result of their incidental mortality in marine fishing operations. The 1982 United Nations Convention on the Law of the Sea ("LOS Convention") generally required States, both within areas under their national jurisdiction and on the high seas, to ensure through proper conservation and management measures, that the maintenance of living resources was not endangered by over-exploitation. In taking such measures, States had to "take into consideration the effects on species [such as sea turtles] 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".²²⁰ Since the adoption of the LOS Convention in 1982, the need for stricter regulation of bycatch had become increasingly critical. That was why Agenda 21 declared that it was necessary to "promote the development and use of selective fishing gear and practices that minimize ... bycatch of non-target species".²²¹ The United States further argued that this multilateral environmental standard to minimize bycatch had been strengthened further, and made a treaty obligation, in a new global convention regulating marine fisheries, the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks ("UN Fish Stocks Agreement"), whose Article 5(f) required Parties to "minimize ... catch of non-target species (both fish and non-fish species) ... and impacts on associated or dependent species, through measures including, to the extent practicable, the development and use of selective, environmentally safe and cost-effective fishing gear and techniques".

3.96. In 1993, the United States had joined with Mexico in leading negotiations toward a new multilateral agreement for the Western Hemisphere devoted specifically to protecting sea turtles from extinction. This three-year negotiating effort had concluded on 5 September 1996 with the adoption of the Inter-American Convention for the Protection and Conservation of Sea Turtles ("Inter-American Convention"). This new treaty required parties to take a variety of measures to protect and conserve sea turtles and their habitats, and stipulated, in particular that "[e]ach Party shall require shrimp trawl vessels subject to its jurisdiction that operate within the Convention Area²²² to use recommended TEDs that are properly installed and functional"²²³ (Annex III, paragraph 3 of the Convention). The countries in the Western Hemisphere understood that, because of the highly migratory nature of sea turtles, a treaty that afforded protection to sea turtles in only one region of the world would not succeed unless countries in other regions adopted comparable measures. For this reason, Article XX of the Inter-American Convention encouraged its parties to negotiate complementary protocols to that treaty with states in other regions in order to promote the protection and conservation of sea turtles outside the Western Hemisphere.

3.97. The United States submitted that, following the conclusion of negotiations on the Inter-American Convention in the latter part of 1996, its Government had proposed to the governments of certain Asian nations, including those of the four complainants, the negotiation of such a protocol or other international agreement for sea turtle protection that would apply to the Asian region. The Governments of India, Malaysia, Pakistan and Thailand had declined to accept the offer of multilateral negotiations. Despite the fact that these governments had not, to date, agreed to negotiate a multilateral agreement for the protection of sea turtles in the Asian region, the required use of TEDs, both in Asia and throughout the Western Hemisphere, had become a multilateral environmental standard. Today, at least the following nations required TEDs on shrimp trawl vessels subject to their jurisdiction: Belize, Brazil, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Guyana, Honduras, Indonesia, Mexico, Nicaragua, Nigeria, Panama, the People�s Republic of China, Thailand, Trinidad and Tobago, the United States and Venezuela. Other nations in Asia and Africa had informed the United States of their intention or desire to establish TEDs programmes.

3.98. With respect to the assertion by the United States that the use of TEDs had become a multilateral environmental standard, India referred to the argument made by Thailand in paragraphs 3.101 to 3.104. India further responded that prior to the introduction of the embargo, the United States had not made any effort to initiate negotiations of an international agreement on the protection of sea turtles. Subsequent to the consultations held under the WTO dispute settlement mechanism in Geneva in November 1996, a proposal had been made by the United States to India to enter into a regional agreement on the lines of the Inter-American Convention. However, this proposal was conditional upon India abandoning the proceedings in the WTO. India had been unable to respond positively to the US proposal in view of the fact that India had been subject to trade restrictions which were inconsistent with the GATT and were not in conformity with CITES. In addition, India had declined the US proposal based on the fact that any proposal for a regional agreement on the protection and conservation of endangered species of sea turtles should, in India's view, emanate from the countries of the region in question. Regarding CITES, India added that the only trade restrictions which CITES obliged parties to take concerned the endangered species specified in the relevant Annexes to the Convention. Shrimps were not covered as an endangered species under the provisions of CITES, and therefore could not under those provisions be put under an import prohibition. Since the Unites States was of the view that the CITES prohibitions had not prevented the continuing decline of sea turtles worldwide, it had to address what it perceived as a problem facing endangered species of sea turtles in the forum of the CITES, which was the international agreement competent to deal with such a problem relating to sea turtles, and not to introduce discriminatory trade restrictions on shrimps in disregard of its WTO obligations.

3.99. Malaysia refuted the claim that the required use of TEDs had become a multilateral environmental standard or a standard that was acceptable to all countries. Although signatories to the Inter-American Convention for the Protection and Conservation of Sea Turtles recognized TEDs, there were still many countries which did not recognize the use of TEDs.²²⁴ In that regard, Malaysia noted that Indonesia had banned trawling in 1980; this contradicted the US assertion that TEDs use was required in that country. The various treaties and multilateral agreements mentioned by the United States promoted conservation through multilateral mutual agreements and not by the imposition of import prohibitions. They made reference to the use of selective, environmentally safe and cost-effective fishing gear and not to the use of TEDs specifically. Furthermore, Agenda 21 provided for the need to develop agreed criteria and not unilateral measures. Malaysia observed that multilateral environmental treaties like the Convention on Biological Diversity (CBD), the United Nations Convention on Climate Change (UNFCC) and CITES shared the same principles, i.e. the principle of international cooperation and that of national sovereignty.²²⁵ It was only through this process that a measure would become a multilateral environmental standard. Malaysia declared that no sincere or serious effort had been made by the United States in establishing a arrangement similar to the Inter-American Convention with certain Asian countries. The import prohibition had been imposed on Malaysia on 1 May 1996. The only approach by the US Embassy in Malaysia had been to give a copy of the Inter-American Convention on an informal basis to the Ministry of International Trade and Industry of Malaysia in December 1996, i.e. two months after the consultation procedures between the United States and Malaysia had started in WTO. Since then, there had been no approach or indication, whether on an official or unofficial basis, that the United States intended to negotiate or discuss any arrangement. Malaysia further stated that the United States had not exhausted the bilateral and multilateral channels foreseen in Section 609 (a) (1) to negotiate and cooperate with Malaysia for the purpose of conserving sea turtles. The drastic measures taken by the United States in imposing the import prohibition had made that provision redundant.

3.100. With respect to the assertion by the United States that TEDs had become a multilateral environmental standard, Pakistan referred to the arguments made by Thailand in paragraphs 3.101 to 3.104. Pakistan further responded that it was unaware of any efforts made by the United States to initiate negotiations and/or reach bilateral or multilateral agreements on the protection of sea turtles relevant to the issues at stake in this proceeding.

3.101. Thailand responded that if the use of TEDs had become a multilateral environmental standard, this was largely due to the effectiveness of US coercion applied through the trade measure in dispute in this case. Certainly this was true of Thailand. Based on the evidence at Thailand's disposal, TEDs were not a cost-efficient means of avoiding sea turtle mortality in Thai waters and would not continue to be required in the absence of Section 609 and the consequences of abandoning TEDs use for Thailand's exports to the United States. The international conventions and conferences cited by the United States evidenced general international agreement that each State had the right to determine its own conservation measures. These conventions further evidenced a consensus that conservation issues relating to shared resources should be resolved through international cooperation, not unilateral action. Under CITES, Thailand and the other signatories had agreed that sea turtles were in need of protection and that "trade in these species must be subject to particularly strict regulation in order not to endanger further their survival".²²⁶ However, parties to CITES had not agreed to trade limitations on species not listed in the Appendices, such as shrimp. Nor did CITES authorize signatories to take action against other signatories which did not limit bycatch by means specified by one signatory to the treaty as being essential or necessary. In fact, the preamble to CITES recognized that "peoples and States are and should be the best protectors of their own wild fauna and flora" and that "international cooperation is essential for the protection of certain species of wild fauna and flora against over-exploitation through international trade". CITES represented an international consensus concerning what each State had to do to protect endangered or threatened species. By reverse inference, because the measures adopted by the United States were not authorized by CITES, there was no international consensus on their necessity or desirability. If the United States believed that other nations needed to take specific actions to protect sea turtles within their jurisdiction or on the high seas, the answer was to seek amendment to CITES or to negotiate other consensual international agreements to address the problem.

3.102. Thailand further argued that the 1982 United Nations Convention on the Law of the Sea ("LOS Convention")²²⁷ recognized the sovereignty of States over their territorial waters and exclusive economic zones. Specifically, Article 2 provided that the sovereignty of a coastal State extended, beyond its land territory and internal waters and in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea. In addition, Article 56 provided that a coastal State had sovereign rights in its exclusive economic zone for purposes of exploring and exploiting, conserving and managing natural resources, whether living or non-living. The concept of sovereignty and the right to exercise jurisdiction over a State's own nationals was also set forth with respect to shared resources on the high seas. Specifically, Article 117 provided that "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". Article 62 of the LOS Convention provided that nationals of other States fishing in the exclusive economic zone of a State had to comply with the conservation measures and with the other terms and conditions established in the laws and regulations of the coastal State, including laws relating to the types, sizes and amount of gear used. While, as noted by the United States, this Article also provided that proper conservation and management measures should be taken, the Article provided the coastal State with the authority to make a determination as to which measures were necessary and appropriate.

3.103. Thailand recalled that, with respect to shared resources such as stocks occurring within the exclusive zones of two or more coastal States or highly migratory species, Articles 63 and 64 of the LOS Convention provided that states which fish for such shared resources should seek, directly or through appropriate sub-regional or regional organizations, to agree on measures necessary to ensure conservation and should cooperate directly or through appropriate international organizations with a view to ensuring conservation and promoting the objective optimum utilization of such species. With respect to the conservation of shared living resources on the high seas, Article 118 of the LOS Convention provided that "States shall cooperate with each other in the conservation and management of living resources in the areas of the high seas. States whose nationals exploit identical living resources, or different living resources in the areas, shall enter into negotiations with a view to taking the measures necessary for the conservation of the living resources concerned. They shall, as appropriate, co-operate to establish sub-regional or regional fisheries organizations to this end".

To Continue With Chapter 3.104

¹⁹⁴ The United States noted that since TEDs had been first introduced to the US shrimp fishery in the late 1980s, research and development to improve TED performance has continued. Using SCUBA divers and video cameras attached to shrimp trawl nets under actual working conditions, NMFS gear researchers, working with shrimp fishermen and net manufacturers, had made improvements to TEDs, enhancing performance for both turtle exclusion and shrimp retention. Shrimp fishermen in the United States had contributed to improvement in TED design and techniques for handling TEDs at sea.

¹⁹⁵ National Research Council, National Academy of Sciences, (1990), Decline of the Sea Turtles: Causes and Prevention, p. 128. The United States also produced to the Panel a Statement of Scientists signed by 74 scientists attesting "to the extraordinary effectiveness of TEDs".

¹⁹⁶ Recommendations of the Training-cum-Demonstration Workshop on Turtle Excluder Device (TED), held at Paradeep, Orissa, from 11-14 November 1996.

¹⁹⁷ IUCN (World Conservation Union), (1995), A Marine Turtle Conservation Strategy and Action Plan for the Western Indian Ocean, p. 14, and IUCN (World Conservation Union), (1997), A Marine Turtle Conservation Strategy and Action Plan for the Northern Indian Ocean, p. 11.

¹⁹⁸ Recommendations of the Training-cum-Demonstration Workshop on Turtle Excluder Device (TED), held ad Paradeep, Orissa, from 11-14 November 1996, p. 7.

¹⁹⁹ Earth Island Institute, Sea Turtle Restoration Project - First Dolphin-Safe Tuna, now Sea Turtle-Safe Shrimp?, on http://www.earthisland.org/ei/strp/first.html, on 7 July 1997.

²⁰⁰ D. Crouse, Action alert!!, Center for Marine Conservation, 20 May 1996. A release to multiple recipents of list CTURTLE<[email protected]>; and D. Crouse, U.S. TEDS still in limbo - believe it or not!!, 14 October 1996, Center for Marine Conservation. A release to multiple recipients of list CTURTLE <[email protected]>.

²⁰¹ M. Weber, D. Crouse, R. Irvin and S. Iudicello, (1995), Delay and Denial: A Political History of Sea Turtles and Shrimp Fishing, Center for Marine Conservation, p. 12.

²⁰² A. Ali, S.S. Sayed Alwi and S. Ananpongsuk, Experiments on the use of Turtle Exclider Devices (TEDs) in Malaysian waters, paper presented at the regional workshop on Responsible Fishing, 24-27 June 1997, Bangkok, Thailand.

²⁰³ K. Kwanming, (1997), Impacts of Shrimp Trawl Fishing from TTFD Installation, Fisheries Economic Division, Department of Fisheries.

²⁰⁴ Sea Turtle Conservation; Revisions to Sea Turtle Conservation Requirements; Restrictions to Shrimp Trawling Activities, 61 Fed. Reg. 66, 933 (19 December 1996), p. 66, 935.

²⁰⁵ Ibid., p. 66, 937.

²⁰⁶ Ibid., p. 66, 933.

²⁰⁷ Ibid., p. 66, 938.

²⁰⁸ Ibid., p. 66, 935.

²⁰⁹ Ibid., p. 66, 940.

²¹⁰ A. Ali, S.S. Sayed Alwi and S. Ananpongsuk, (1994), Experiments on the Use of Turtle Excluder Devices (TEDs) in Malaysian Waters, paper presented at the regional workshop on Responsible Fishing, 24-27 June 1997, Bangkok, Thailand.

²¹¹ Ibid., p. 1.

²¹² Ibid., p. 7. The United States also noted that, during a TEDs workshop held in Songkla, Thailand, officials from the US National Marine Fisheries Service pulled one TED-equipped trawl net along side a trawl net without a TED. The amount of shrimp caught by each was the same.

²¹³ TED gained Thai fisherment's acceptance, SEAFDEC Newsletter, July-September 1996.

²¹⁴ Kemp's Ridley Sea Turtle (Lepidochelys Kempii) Statut Report, (1996), Report of the Marine Turtle Expert Working Group.

²¹⁵ Status of the Loggerhad Sea Turtle Population (Caretta caretta) in the Estern North Atlantic, (1996), Report of the Marine Turtle Expert Working Group.

²¹⁶ B. Chokesanguan, et. al., (1997), The Experiments on Turtle Excluder Devices (TEDs) for Shrimp Trawl Nets in Thailand", South Asian Fisheries Department.

²¹⁷ K. Kwanming, Impacts of Shrimp Trawl Fishing from TTFD Installation, Fisheries Economic Division, Department of Fisheries.

²¹⁸ A. Ali, (1997), Experiments on the Use of Turtle Excluder Devices (TEDs) in Malaysian Waters, paper presented at the Regional Workshop on Responsible Fisheries, 24-27 June 1997, Bangkok, Thailand. SEAFDEC, (1996), TED Gained Thai Fishermen's Acceptance, SEAFDEC Newsletter, Vol. 19, No. 3, p. 11.

²¹⁹ CITES, Article II(1).

²²⁰ United Nations Convention on the Law of the Sea, UN Doc.A.CONF.62/122, reprinted in 21 I.L.M. 1261 (1982), Article 61(2) & (4) and Article 119(1)(b).

²²¹ Report of the United Nations Conference on Environment and Development, Rio De Janeiro (3-14 June 1992), UN Doc. A/CONF.151/26, Agenda 21, paragraph 17.46(c).

²²² Article III of the Inter-American Convention defined the "Convention Area" to comprise "the land territory in the Americas of each of the Parties, as well as the maritime areas of the Atlantic Ocean, the Caribbean Sea and the Pacific Ocean, with respect to which each of the Parties exercises sovereignty, sovereign rights or jurisdiction over living marine resources in accordance with international law, as reflected in the United Nations Convention on the Law of the Sea".

²²³ Inter-American Convention, Annex III, paragraph 4. The United States noted that the Inter-American Convention also required parties, inter alia, to prohibit the intentional take of sea turtles (except for limited subsistence use by traditional communities), to ban domestic as well as international trade in sea turtles and in their eggs, parts and products, to reduce the incidental capture, injury and mortality of sea turtles associated with all commercial fisheries, and to cooperate in international scientific research for the purpose of protecting sea turtles.

²²⁴ In commenting on Annex JJ of the United States (see below Section III.D), Malaysia noted that the Inter-American Convention had been cited as an important milestone in the global recognition of TEDs. Nevertheless, very few countries had actually ratified it. As of February 1997, only six countries of the entire region had signed the Convention, i.e. two short of the minimum number required to put this instrument into force.

²²⁵ Malaysia referred, in particular, to Articles XIII and XIV of CITES, Article 3 and 5 and the Preamble of the CBD, Articles 3 and the Preamble of the UNFCC.

²²⁶ Article II:1 of CITES.

²²⁷ United Nations Convention on the Law of the Sea, UN Doc. A.CONF.62/122, reprinted in 21 I.L.M. 1261 (1982).