5.305. In his answer to question 4(a), Dr. Eckert's data is based on specific populations. It is not clear why he has not quoted some of the recent data. However, India endorses the views of Mr. Guinea and Mr. Liew on the subject. Even Mr. Guinea has specifically cited the conservation measures devoted to eggs and hatchlings of olive ridleys in Orissa, India. Dr. Eckert has restricted his answer to question 4(b) to loggerheads in Little Cumberland Island and has not paid any attention to the data that is available for other areas. In this regard, India endorses the views of Mr. Guinea. It may be noted that he has made a special note on egg protection measures for olive ridleys in India and green turtles in Malaysia.

5.306. When examining the migratory patterns of sea turtles, Dr. Eckert has mainly used data on leatherbacks which, as pointed out by Mr. Liew, are ocean pelagic species, capable of migrating over long distances. In India, the major population is olive ridleys. Mr. Guinea has already indicated that in India olive ridleys travel within the country from Orissa to Gulf of Mannar, i.e. a distance of about 1,000 kms. On question 5(b), India endorses the views of Mr. Guinea.

5.307. On question 6(a), India agrees with Dr. Eckert's view that information is limited on the distribution of foraging turtles in Thailand, Malaysia, India and Pakistan. Dr. Eckert has cited few reports where turtles have been killed by shrimping but he has also said that predicting interactions between sea turtles and shrimp between Atlantic and Indo-Pacific waters is difficult. India would like to mention that the report often cited about turtles being killed by shrimping in Orissa, India is not true. As Indian experts have demonstrated to the Panel, the death of a relatively minimal number of sea turtles in this area is due to all types of fishing activities, and not to shrimp trawl fishing by itself. On question 6(a), India further endorses the views of Mr. Liew and Mr. Guinea.

5.308. On question 6(c), India agrees with the views of Mr. Liew and would further like to say that the turtle sensitive areas in Orissa, India, have been declared as a Marine Wildlife Sanctuary with a no fishing zone extending upto 20 km from high tide line. Indian Navy and Indian Coast Guard have been deployed for protecting the area and enforcing the Government's sea turtle conservation programmes.

5.309. On the issue of bycatch addressed in Dr. Frazier's Appendix 1 (see Annex II), India would like to recall the point made by its experts to the Panel that in India, shrimps are harvested along with other fish. There is no specific shrimp tawling activity in Indian waters. The concept of bycatch therefore has to be applied in the Indian context with due care, since the catch involves all kinds of fish, and not exclusively shrimp. Endangered species of sea turtles are not the target of fish harvesting activities in India. Indeed, India would note that Dr. Frazier has not mentioned that endangered species of sea turtles do in fact form part of the bycatch in Indian fishing operations in his description of bycatch as contained in pages 1-10 of his Appendix 1 (see Annex I). India would endorse the point made by Dr. Frazier regarding the non-exclusionary approach of India towards TEDs as one of the many ways for conserving and protecting sea turtles. The reference to ban on trawling in Indian waters off the coast of Kerala (paragraph 60 of Appendix 1), the reference to the interest in experiments on the use of TEDs in India (paragraph 77 of Appendix 1) illustrate this point.

5.310. India would like to highlight the fact brought out by Dr. Frazier's account that "the issue of endangered sea turtles, the use of TEDs and the questions of the present dispute" has been focused on in 1997 (paragraph 98 of Appendix 1). This helps to emphasize our point made to the Panel that the embargo imposed on our shrimp exports by the United States was not introduced on the basis of any factual or scientific evidence derived from Indian data known to the United States before 1997. Even data relevant to India in 1997 cannot, on a scientific basis, support the embargo imposed by the United States.

5.311. India is unable to see relevance for Indian sea turtle conservation programmes of the linkage between bycatch as a danger to the marine environment and the conservation and protection of endangered species of sea turtles (paragraphs 103-108of Appendix 1) since the argument appears to be developed on the basis of hypothetical situations, without supporting scientific data derived from Indian waters.

5.312. India would note that Dr. Frazier's views on the transfer of TED technology contained in Appendix 2 (see Annex II) of his report do not contradict the Indian expert opinion provided to the Panel, namely, that the workshops conducted under the auspices of the US NMFS in India were of too short a duration, and used only a limited type of TED made in the United States, to come to any definitive conclusion that TEDs are indeed the only way to protect and conserve endangered species of sea turtles in India. The correspondence provided by Dr. Frazier (p. 28 of Annex II) also demonstrates that India has always been interested in TEDs as one of the many ways to conserve and protect endangered species of sea turtles. Finally, India would like the Panel to disregard the objectivity of the views on the Amicus Brief submitted by the Centre for Marine Conservation dated 17 September 1997, as well as the WWF Amicus Brief and the Statement of Scientists attached to Dr. Frazier's opinion (see above section III.D).

2. Comments by Malaysia

5.313. In general, the views of Mr. Guinea, Mr. Liew, Dr. Pointer and Dr. Frazier (except Appendixes 1 and 2 contained in Annex II) are in conformity with the views of Malaysia. However, Malaysia does not agree with a number of points raised by Dr. Eckert and Dr. Frazier in his Appendixes 1 and 2.

5.314. Malaysia would like to reiterate that all trawling activities in Malaysia are subjected to zoning under the Fisheries (Maritime) Regulations, 1967. Under these Regulations, four zones have been established, as follows:

5.315. Zone A which covers shallow waters within 5 nautical miles (or 9.41 km.) from the shoreline would include all shallow water habitats utilized by sea turtles as feeding or internesting habitats. This zone therefore coincides with the areas where turtles concentrate. The exclusion of trawling in this zone would effectively protect the turtles from trawl nets as well as their habitats from destruction. In a sense, these zoning Regulations can be seen to be superior to TEDs requirements since it serves not only to protect the turtles, but also the habitats of the turtles from destruction by trawling activities. Enforcement as a general rule has its problems in any country. This is due mainly to the extensiveness of coastal waters and constraints imposed by limitations in financial and manpower resources. Enforcing zoning Regulations would be less cumbersome than enforcement of TEDs regulations because in Malaysia, the fishing vessels are required to paint their wheel houses with colours ascribed for each zone, besides having to mark prominently whether their vessels are of the A, B, or C2 classes. Therefore enforcement officers can easily sight cases of encroachment.

5.316. It is recognized that sea turtles do occur in waters beyond Zone A, i.e. when they perform breeding migrations between feeding and nesting grounds. However, during migration, the turtles do not stay at the bottom, but are engaged in constant swimming activities in the pelagic zone. During this time they are more susceptible to being caught in drift nets and longlines, not trawls. Internesting habitats of leatherback turtles may also extend into waters beyond Zone A. However, leatherback turtles do not normally sit on bottom habitats during the internesting period, making them less vulnerable to incidental captures in trawl nets.

5.317. To further protect turtles, Malaysia is amenable to introducing TEDs to trawl fishermen, including both fish (since most trawlers are fish trawlers) and shrimp trawlers. However, its use should be on a voluntary basis, as is in the case of Australia. Further, TEDs should be recommended only in those places where interactions with sea turtles occur and trials must be carried out to test their suitability in fish and shrimp trawls. It is important that fishermen be convinced of the beneficial effects of TEDs for them to voluntarily use them. More educational campaigns and workshops just as the one which had been held in Perak, Malaysia, can be conducted to popularise the use of TEDs. It is clear that in order to execute a sea turtle conservation programme which is comprehensive and addresses all threats faced by sea turtles, financial resources are urgently required. It is hoped that concerned rich nations like the United States can provide funding assistance in this respect.

5.318. There seems to be some disagreement among the experts regarding the status of the green and hawksbill populations of the Sabah Turtles Islands. Limpus⁴²⁷ gives the recognition of recovering status, with Mr. Guinea, Mr. Liew and Dr. Frazier agreeing, although the latter has expressed some reservations. Dr. Eckert does not acknowledge that the Sabah Turtle Islands population has recovered. His contention is that the population has been monitored only a few years and this is not sufficient to ascertain its status. Malaysia would like to reiterate that the nesting population of the Sabah Turtle Islands has been monitored since the mid-1960s⁴²⁸. A declining trend was evident in the first 20 years, from 1966 to 1987. A reversal in trend started from 1988, with the upward trend maintained since then. Chan and Liew⁴²⁹ provided data up to the year 1994 (i.e. for seven years). We now have additional data for 1995 and 1996, as shown in the table below. Lately, the Sabah Turtle Islands have been subjected to erosion. Notwithstanding, the nestings did not show any appreciable decline:

5.319. With the additional data for the three years 95-97, we now have data which shows an increasing trend for the last nine years (1988-1997). This already fulfils the time series requirement of "6-9" years stipulated by Dr. Eckert.⁴³⁰ Therefore, we do not understand why he requires "another 15 years" of monitoring before he would accord the status of "recovered" to the Sabah Turtle Islands. Dr. Eckert has criticized Malaysia for being wrong assuming that a trend in the green turtle populations can be determined only after a few years.⁴³¹ We would like to point out that the recovering trend in the Sabah Turtle Islands has been observed since 1988, more than a matter of a few years. We now have additional data for years 1995, 1996 and 1997, as shown above.

5.320. Mr. Liew, in his response to question 2(d), says that for the Sabah Turtle Islands population, "the impact (shrimp trawling), if found to be significant, may negate other conservation efforts and would need urgent action". The fact that the nesting population of the Sabah Turtle Islands has shown a recovery, with the current levels fluctuating at a level about 2-3 times the levels of post-recovery years indicates that incidental captures, including trawling mortality have not negatively impacted the current population. Current levels have not been short-lived, but instead, have been sustained since recovery in 1988. If fishing mortality is serious, there would have been a persistent continuing declining trend.

5.321. The argument put forth by Dr. Eckert for the case of the loggerheads of Little Cumberland Island, Georgia,⁴³² supports our contention. In this case, population recovery has not occurred even though the eggs have been accorded 100 per cent protection since 1964. Dr. Eckert attributes this to mortality associated with shrimp fishing on the Atlantic coast, which has negated the effects of 100 per cent egg protection. By the same token, there must have been an absence of significant mortality attributed to shrimp trawling and other fishing activities around the Sabah Turtle Islands to have made possible the population recovery there.

5.322. It is generally agreed that each stock or population or breeding unit of sea turtle should be identified and managed as an independent unit. These units are genetically defined.⁴³³ Limpus (1997)⁴³⁴ recognises this when he says that "population genetics studies are clearly showing that each of the geographically separate clusters of rookeries represents an independent management unit". Mr. Guinea similarly recognizes this in his introductory comments.⁴³⁵ However, Dr. Eckert does not seem to subscribe to this. He maintains that regional populations cannot be viewed as independent management units. However, he subsequently stresses that top priority should be given to the identification of turtle stock boundaries,⁴³⁶ which appears contradictory to his non-recognition of independent management units.

5.323. In his response on the analysis of population status of the individual species, Dr. Eckert argues against the determinant for population size which is based on nesting density.⁴³⁷ It is agreed that there are shortcomings since any population or unit stock of sea turtle comprises hatchlings, post-hatchlings, juveniles, sub-adults and adults of both male and female turtles. However, due to current limitations in assessing the status of all life stages of the turtles, nesting density is still universally used as a measure of population size for breeding units of sea turtles. Dr. Eckert's own analysis of the population status of the various species is also based on assessments of the size of nesting populations. Limpus (1997)⁴³⁸ identifies a population "by the focus of its nesting population, irrespective of where it migrates to feed".

5.324. It is observed that Dr. Eckert regards sea turtles as a global resource. Malaysia refutes this as sea turtles are a shared regional resource as elaborated in Malaysia's arguments to the Panel. The recognition of different breeding stocks of sea turtles as independent management units (see paragraph 5.322) reinforces the fact that sea turtles are a regional resource, and not a global resource. Mr. Guinea essentially captures the essence of the regional status of unit stocks of sea turtles when he says "Malaysia and Thailand because of their proximity may share breeding units of some species".⁴³⁹ Malaysia may share breeding units with the Philippines and Indonesia. India and Pakistan could share breeding units of some species. The United States and Mexico may share breeding units as well. It is speculative to suggest that southeastern United States shares a breeding unit with any of the other countries in the dispute. Dr. Eckert attempts to justify the status of sea turtles as a global resource by projecting a picture of extensive migrations. He hypothesises that leatherback turtles "circumnavigate the entire Pacific Ocean" and that "females from the two major colonies (Mexico/Central America and Iran Jaya/Solomon Islands) as well as the minor colonies (e.g. Malaysia) distribute into a clockwise migration of the Pacific Ocean ...".⁴⁴⁰ Malaysia argues against this as follows:

• The work that Dr. Eckert has cited to support his view shows impressive migrations across latitudes (i.e. in a north-south direction, extending from Chile to the Northeast Pacific), but is limited in range with respect to longitudes (i.e. east-west direction). More information on the migration ranges of leatherbacks in the Eastern Pacific is provided in Eckert and Sarti (1997).⁴⁴¹ Here again, migration is limited with respect to longitude. The single individual which migrated westwards, beyond the longitudinal range of all other individuals studied was considered by Eckert and Sarti to be an anomaly, rather than the norm. The claim that leatherback turtles "circumnavigate the entire Pacific Ocean" is highly speculative and cannot be validated by available scientific information.
• Peter Dutton's work through a personal communication to Dr. Eckert cannot be accepted as scientific evidence, unless a written statement is issued from Dutton, outlining his method of study and how samples were procured.

Dr. Eckert's hypothesis that leatherback turtles circumnavigate the entire Pacific is an argument put forward to provide justification for the United States that they have jurisdiction over Malaysian and Thai sea turtles. What hypothesis would be offered to justify the claims of the United States for jurisdiction over the sea turtles of the Indian Ocean?

5.325. All the experts subscribe to the status listings of IUCN and CITES. Mr. Liew specifies that different populations are in different states of health, with some populations having disappeared, some near extinction, some threatened, and a few having shown some apparent recovery.⁴⁴² Mr. Guinea recognizes that "the green turtle nesting on the Turtle Islands of Sabah have staged a remarkable recovery, as have the hawksbills".⁴⁴³ Elsewhere, in South Africa, leatherback turtles have also staged a recovery from 5 nesting females per year in 1963 to over 100 per year in 1995.⁴⁴⁴ This demonstrates that although general status listings are recognized, certain populations are in fact doing quite well.

5.326. Regarding the leatherback sea turtles, it is true that, as mentioned by Dr. Eckert⁴⁴⁵, some previously large populations, including the Malaysian population, are almost extinct. However, Spotila et. al.⁴⁴⁶ had identified the population of 18 out of 28 important leatherback nesting areas reviewed as either increasing or stabilized. The case of the decimated leatherback population in Malaysia is recognized both locally and internationally. The local authorities have put in much effort to save the leatherback (even Dr. Eckert recognises this).⁴⁴⁷ Malaysia would welcome international effort to bring about a recovery of the decimated population.

5.327. Most of the references used by Dr. Eckert to conclude that green turtles in Malaysia are in decline are outdated reports, except for Chan and Liew (1996).⁴⁴⁸ Malaysia requests Eckert to review Chan and Liew (1996) again because this report demonstrated population recovery since 1988, and the recovery has now been sustained for almost ten years. The reference used by Dr. Eckert to allege Malaysian business interests at the Turtle Islands is not valid since Romeo Trono is a Filipino and does not have reliable information on Malaysian business interests. The allegation can only be accepted if Dr. Eckert provided a primary source. As a representative of the Malaysian government, we assure this Panel that there is currently no business developments being considered in the Turtle Islands which may destroy the natural habitats or in any way pose any threat whatsoever to the continued recovery and survival of the turtle population there.

5.328. In Malaysia, hawksbill sea turtle are not hunted any more. The outlook for Malaysian hawksbills is not as dismal as Dr. Eckert has made it out to be. The hawksbill population in the Sabah Turtle Island has recovered in the same manner as the green turtles (Chan and Liew, 1996). According to Limpus (1997)⁴⁴⁹, "[t]he largest hawksbill nesting population in Southeast Asia appears to be in the Sulu Sea Turtle Islands of Sabah (Malaysia) with a nesting population of several hundred females annually. This .... may currently be increasing significantly". Elsewhere in Malaysia, hawksbill nesting appears stabilized, except in Terengganu where it has declined. Efforts are being made in Terengganu to maximise egg protection.

5.329. It is recognised that the causes of decline of sea turtle populations are generally similar for all species of sea turtles. However, the degree of threat of each of the causes may vary according to time, place, and a variety of conditions. These views are held by Mr. Guinea, Mr. Liew and Dr. Frazier. Dr. Poiner says that it is difficult to rank mortality factors either currently or over time. The views of Mr. Guinea, Mr. Liew, Dr. Frazier and Dr. Poiner are upheld because the same conditions do not prevail uniformly in the United States, India, Malaysia, Pakistan and Thailand. Notwithstanding, Dr. Eckert argues the "...by far the most serious threat to sea turtle stocks living in coastal environments are trawl fisheries".⁴⁵⁰

5.330. Dr. Poiner and Mr. Guinea are of the view that it is not possible to rank the sources of mortality. Mr. Liew believes that in the United States mortality caused by shrimping is high, while in India, Pakistan, Malaysia and Thailand, other fishing methods such as sunken set nets or "pukat pari" may have a greater impact than shrimp trawling. The information provided by Dr. Eckert and Dr. Poiner that shrimp trawling presents the most serious threat to green turtles⁴⁵¹ is inconsistent with the findings of NRC (1990) which has not even listed shrimp trawling to be among any of the factors responsible for green turtle mortality. The major threats identified in the reference were direct exploitation of eggs and meat, and the degradation of nesting and feeding habitats.

5.331. There is currently no large and continuing illegal egg take in Sabah and Sarawak. Some poaching may occur, but most of the eggs are being conserved. Eckert (1993)⁴⁵² mentioned that data supplied by the Sarawak Museum showed that in 1989 and 1990, 185,461 and 117,701 eggs were collected respectively. The implication is that the eggs were still collected and completely marketed. Dr. Eckert failed to provide the rest of the information where, out of these eggs, 107, 237 (57.8 per cent) and 88,869 (75.5 per cent) were respectively replanted in hatcheries (Leh, 1997).⁴⁵³ In subsequent years, over 90 per cent of the eggs collected have been conserved (Leh, 1997). Leh has also provided turtle landing statistics in Sarawak from 1970 to 1996, which showed population stabilization, rather than decline. In the Sabah Turtle Islands, close to 100 per cent of the eggs collected are conserved (Suliansa, 1997).⁴⁵⁴ It is true that legalized egg harvest is still a problem in Peninsular Malaysia. However, numerous hatcheries have been established where increasing percentages of eggs are being purchased from the egg collectors for conservation. Local governments provide funds for the purchase of eggs for incubation and this is supplemented by conservation projects conducted by universities⁴⁵⁵, resort and chalet operators and other conservation groups.

5.332. Malaysia agrees that incidental mortality caused by fishing gear does occur, but in Malaysia, shrimp trawling is not the major gear impacting sea turtles. The more serious gear are the fish trawls and bottom gill nets which are used for catching rays. The latter nets have been banned. Dr. Eckert cites Crouse (1987) whose study was based on loggerhead turtles and tries to extrapolate the conclusions to all species of sea turtles. The conclusion that loggerheads "... pick foraging habitats that are most strongly correlated to shrimp fisheries" is true for loggerheads and this is the very reason why loggerheads suffer the most serious impact of shrimp trawls. However, it has not been shown anywhere that leatherbacks, green or hawksbill turtles "...forage in shallow waters with soft bottoms that characterise shrimp habitat".⁴⁵⁶ Dr. Eckert is of the opinion that "stage 3" sea turtles of all species, meaning large juveniles and sub-adults, forage in shallower water with soft bottoms which characterise shrimp habitat. He thinks that these habitats are the developmental habitats since the turtles at this stage cannot dive as deeply nor as long as larger mature animals. Malaysia would like to point out that this is a generalization, and not a proven scientific fact. This generalization has been extrapolated from studies conducted on loggerhead turtles. However, if this is possible, zoning Regulations in Malaysia prohibit any form of trawling activity in these shallower waters.

5.333. There is some confusion with regards to the word "trawl"; as it is used in Malaysia, trawling means fish trawling, not prawn or shrimp trawling. However, in the United States, trawling is synonymous with shrimp trawling. The Malaysian publications which prescribe turtle mortality to trawls actually refer to mortalities in fish trawls and not shrimp trawls. Grazier, referred to by Dr. Frazier⁴⁵⁷, cites Siow and Moll (1982) when he attributes declines in turtle population is Malaysia to prawn trawling. The exact words of Siow and Moll were "... increases in fishing activities, especially trawling and drift-netting were blamed for the ... dead turtles on the beach ...". There was no mention of prawn trawling in the reference. The type of trawling referred to be Siow and Moll (1982) was fish trawling.

5.334. Malaysia recognizes that the trans-Pacific and trans-Atlantic movements (not migrations) of hatchlings and post hatchlings sea turtles described by the experts. Malaysia wishes to point out to the Panel that the extensive ranges of the hatchlings and post hatchlings occur only during the first few years of the life cycle of turtles and that at this phase, turtles are found only in the pelagic zones. In terms of vulnerability to shrimp trawls, this phase of the life cycle is of no relevance. It is true that leatherback turtles show extensive migration. However, the circumnavigation of the Pacific Ocean by all leatherback populations which nest in the Pacific area, as alleged by Dr. Eckert is highly speculative and is as yet unsupported by published scientific data. Data available so far indicate that movements of leatherback turtles which nest along the Eastern Pacific range from the north-eastern Pacific to the south-eastern Pacific, but do not extend to the Western Pacific. The satellite tracking work conducted by Dr. Eckert illustrates this point as explained in paragraph 5.324 above. The recent satellite tracking data on green turtles show regional migrations which do not exceed 3,000 km in range, with most within the 2,500 km range. The studies involved were carried out over a few months, and in most cases, were continued well after the turtles had reached their destinations at the feeding grounds. Studies in Australia have shown that adult green turtles do not change feeding grounds, but remain within particular feeding grounds until the next reproductive migration. They also return to the same feeding site they occupied before the breeding migration.⁴⁵⁸ Therefore, green turtles do not perform annual movements, their migrations are strictly between feeding and nesting grounds at 2-7 year intervals.

5.335. Dr. Eckert has attempted to discredit the recent satellite tracking studies of post-nesting green turtles by saying that the studies have been carried over too short a duration to determine annual movement patterns. Malaysia would like to point out that adult green turtles, unlike the loggerheads, do not undertake annual migrations. Dr. Eckert himself admits that "given the relatively warm waters of Malaysia, Thailand, India and Pakistan, it would not be expected that resident turtle populations would exhibit annual or seasonal migrations in those countries".⁴⁵⁹

5.336. Malaysia notes that the experts are quite divided about the status of breeding populations which have recovered based on protection of nesting beaches, nesting females and 100 per cent protection of eggs. There are examples where conservation programmes focused on protection of eggs and hatchlings have proved effective in population restoration or maintaining it at a sustainable level. Malaysia would like to cite the following examples: Tongaland, South Africa where beach patrols and 100 per cent protection of eggs and nesting leatherbacks on the beach, and in the absence of TEDs application, have resulted in a recovery of the population from 5 to over 100 nesting females per season (Hughes, 1996).⁴⁶⁰ This recovery was gradual and occurred over a period of more than 30 years, from 1963 to 1995. In this proceedings, Malaysia also gave the example of the Sabah Turtle Islands. Examples are also provided in the responses of Mr. Guinea and Mr. Liew to question 4(a). In that regard, Malaysia wonders where would the sub-adult and adult turtles come from if the eggs were not protected in the first place? Dr. Poiner has cited several studies conducted in Australia which indicate that protection of eggs and hatchlings also have a major impact on long-term stock viability, and that predation on eggs makes a significant contribution to increased mortalities.⁴⁶¹

5.337. The priority action for sea turtle conservation would vary, as stipulated by Dr. Poiner.⁴⁶² Mr. Guinea mentions protection of nesting habitats and offshore refuges for nesting females as priority.⁴⁶³ However, Dr. Eckert advocates one set of uniform priority actions for all species and all countries.⁴⁶⁴ We hope that Dr. Eckert can appreciate the level of capability and financial resources in poor developing countries. The priority actions given by Dr. Eckert are indeed idealistic and the dream of every sea turtle conservationist. However, each country is able to act only within the limitations of its financial and manpower resources. To the question posed by the Panel "Do these [socio-economic] factors influence the choice and enforcement of conservation programmes", Dr. Frazier puts it in a nutshell by responding very succinctly "Yes, they do". The time when reproductive females are most vulnerable to exploitation and capture are the times when they arrive predictably and concentrate on specific nesting beaches to nest. Therefore, in sea turtle conservation, a top priority should be to eliminate direct capture and harvest of sea turtles on nesting beaches. Malaysia has been practising this for many decades now, in addition to protecting nesting beaches as well as eggs.

5.338. Malaysia would like to draw the attention of the Panel and experts to the fact that TEDs were developed for shrimp trawlers where the targeted species are shrimp and all other catch, including fish that are considered to be bycatch. In Malaysia and other developing countries, most of the trawlers in operation are fish trawls which target fish, both small and large-sized fish. TEDs developed in the United States will not be appropriate under such conditions as they will cause the escape of large fish which are targeted in the trawl fisheries of the region. Dr. Eckert believes that TEDs are extremely simple to use and that the socio-economic conditions in complainant countries would not pose a constraint. Theoretically, this may seem to be the case. However, in the practice of TEDs deployment, an array of situations and problems may arise. This is apparent as seen in the strong resistance of US shrimpers the mandatory use of TEDs (Weber et. al., 1995).⁴⁶⁵ Further, even after TEDs became mandatory in the United States, large numbers of turtles continued to strand.

5.339. Malaysia notes that Dr. Eckert has not answered question 3(b) in context. The question is "Is there any data on TEDs efficiency during commercial shrimping?" The studies of Renaud et. al., (1990, 1991) cited by Eckert were "controlled" tests. Further, Crowder et. al., (1995) cited by Dr. Eckert used a model to predict the effects of TEDs. Dr. Eckert did not attempt to cite the references from which he drew his three conclusions. The examples cited by Dr. Eckert for other countries were results from trials conducted by gear specialists and not from actual commercial shrimping carried out by the fishermen themselves.⁴⁶⁶ Dr. Eckert has avoided answering questions concerning rate of turtle stranding in areas where TEDs are currently required. Malaysia has already provided data to the Panel (see Section III.B); in addition, Mr. Liew in his response to question 3(b) refers to Coyne (1997), who states that "while Kemp's ridley are nesting, others are dying in large numbers along the Texas coast ... so far this year (1997), 275 dead turtles have washed ashore up along the Texas coast ... biologists still see a big decline in dead turtles washing ashore when the Gulf of Mexico is temporarily closed each year to shrimping". The last part of the quote shows that closed seasons appear more effective in reducing turtle mortality.

5.340. Dr. Eckert talks about problems in enforcement relative to seasonal and time closures, area closures and tow-time limitations.⁴⁶⁷ Similar problems would apply to TEDs enforcement as well. There is information which reveals that US fishermen disengage their TEDs once they are out at sea (Seber et. al., 1995).⁴⁶⁸ There is information which shows that TEDs may be exempted after storms. Apparently, debris in the nets prevent TEDs from closing, allowing shrimp to escape, thus reducing shrimp catch efficiency.⁴⁶⁹ Malaysia would like to stress again that prohibition of trawling within 5 nautical miles of the coastline eliminates turtle mortalities attributed to both fish and shrimp trawling in these shallow waters. Enforcement of the regulations is facilitated, as explained in paragraph 5.315. What is needed in Malaysia is not an additional regulation but rather more financial resources and personnel to enhance existing enforcement of regulations which are already in place for the protection of sea turtles against trawling activities.

To Continue With Chapter 5.341

⁴²⁷ C.J. Limpus, (1995), Global Overview of the Status of Marine Turtles, in D.A. Bjorndal (ed.), Biology and Conservation of Sea Turtles, Smithsonian Institution Press; C.J. Limpus, (1997), Marine Turtle Populations of Southeast Asia and the Western Pacific Region: Distribution and Status, Proceedings of the Workshop on Marine Turtle Research and Management in Indonesia, Jember, East Java, November 1996.

⁴²⁸ C.H. Chan and H.C. Liew, (1996), A Management Plane for the Green and Howksbill Turtle Populations of the Sabah Turtle Islands: a Report to the Sabah Park, SEATRU, Universiti Kolej, Universiti Putra Malaysia, Terengganu.

⁴²⁹ Ibid.

⁴³⁰ Eckert para. 5.23.

⁴³¹ Eckert para. 5.186.

⁴³² Eckert, para. 5.241.

⁴³³ M.Y Chaloupka and J.A. Musick, (1997), Age, growth and population dynamics,in: P.L. Lutz and J.A. Musick (eds.), The Biology of Sea Turtles, CRC Press, pp .234-276.

⁴³⁴ C.J. Limpus, (1997), Marine Turtle Populations of Southeast Asia and the Western Pacific Region: Distribution and Status, Proceedings of the Workshop on Marine Turtle Research and Management in Indonesia, Jember, East Java, November 1996.

⁴³⁵ Guinea para. 5.14.

⁴³⁶ Eckert para. 5.174.

⁴³⁷ Eckert para. 5.20.

⁴³⁸ C.J. Limpus, (1997), Marine Turtle Populations of Southeast Asia and the Western Pacific Region: Distribution and Status, Proceedings of the Workshop on Marine Turtle Research and Management in Indonesia, Jember, East Java, November 1996.

⁴³⁹ Guinea para. 5.87.

⁴⁴⁰ Eckert para. 5.21.

⁴⁴¹ Eckert, S.A. and L.M. Sarti, (1997), Distant Fisheries Implicated in the Loss of the World's Largest Leatherback Nesting Population, Marine Turtle Newsletter 78:2-7.

⁴⁴² Liew para. 5.68.

⁴⁴³ Guinea para. 5.189.

⁴⁴⁴ G.R. Hughes., (1996), Nesting of the Leatherback Turtle (Dermochelys coriacea) in Tongaland, Kwa Zulu-Natal, South Africa, Chelonian Conservation and Biology 282):153-158.

⁴⁴⁵ Eckert para. 5.26.

⁴⁴⁶ J.R. Spotila, A.E. Dunham, A.J. Leslie, A.C. Steyermark, P.t. Plotkin and F.V. Paladino, (1996), Worldwide Population Decline of Dermochelys coriacea: Are Leatherback Turtles Going Extinct? Chelonian Conservation and Biology 2(2):209-222, (cited in Eckert's response).

⁴⁴⁷ Eckert para. 5.171.

⁴⁴⁸ Eckert para. 5.29.

⁴⁴⁹ C.J. Limpus, (1997), Marine Turtle Populations of Southeast Asia and the Western Pacific Region: Distribution and Status, Proceedings of the Workshop on Marine Turtle Research and Management in Indonesia, Jember, East Java, November 1996.

⁴⁵⁰ Eckert para. 5.119.

⁴⁵¹ Eckert para. 5.92 and Poiner para. 5.118.

⁴⁵² K.L. Eckert, (1993), The Biology and Status of Marine Turtles in the North Pacific Ocean, NOAA Tech. Memo, NOAA-TM-NMFS-SWFSX-186, 156 pp. (cited in Eckert's response).

⁴⁵³ C.M.U. Leh, (1997), Country Status Report: Status of Marine Turtles Conservation in Sarawak, Proceedings of the First SEAFDEC Workshop on Marine Turtle Research and Conservation, SEAFDEC MFRDMD RM/3:13-20.

⁴⁵⁴ M.S. Suliansa, (1997), Country Status Report 2: Status Report of Sea Turtle Management at the Turtle Islands Park, Sabah Parks, Proceedings of the First SEAFDEC Workshop on Marine Turtle Research and Conservation SEAFDEC MFRDMD RM/3:21-34.

⁴⁵⁵ See the SEATRU website at http://www.upmt.edu.my/seatru.

⁴⁵⁶ Eckert para. 5.74.

⁴⁵⁷ Frazier para. 5.56.

⁴⁵⁸ See Poiner para. 5.269.

⁴⁵⁹ Eckert paras. 5.257 and 5.259.

⁴⁶⁰ G.R. Hughes, (1996), Nesting of the Leatherback Turtle (Dermochelys coricea) in Tongaland, KwaZulu-Natal, South Africa, Chelonian Conservation and Biology 2(2):153-158.

⁴⁶¹ Poiner para. 5.201.

⁴⁶² Poiner para. 5.185.

⁴⁶³ Guinea para. 5.181.

⁴⁶⁴ Eckert para. 5.174.

⁴⁶⁵ 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.

⁴⁶⁶ Eckert para. 5.210-213.

⁴⁶⁷ Eckert para. 5.223.

⁴⁶⁸ 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.

⁴⁶⁹ CURTLE List (Internet Source), T. Steiner, 14:30 pm 29-07-97, Are TEDs Comming Off?, referred to by Mr. Liew.