5.372. Consistent with the fact that threats and their significance vary between regions and species, the evidence presented by the experts demonstrates that threats and their significance vary throughout Thailand. All of the experts indicate that direct exploitation of both adults and eggs has been a serious threat to sea turtles in Thailand in the past, and continues to be so today. Additionally, threats to sea turtles in Thailand include destruction of habitat through development and incidental mortality in a variety of fishing gear. Quantitative information on the relative significance of the threats is generally not available; however, the responses and cited sources indicate that the significance of the threats varies from region to region in Thailand and from species to species. Further, to the extent that shrimp trawling is identified as a threat in Thailand, it is identified as a threat in certain locations and/or in conjunction with other threats. Moreover, the threat appears to be associated with trawlers operating too close to shore - a situation that is addressed by Thai legislation banning commercial fishing within 3 km.

5.373. Mr. Liew presented a table summarizing the findings presented by C. Limpus in a 1997 paper. The table indicates that excessive egg harvest is an issue that must be addressed for all species of sea turtle found in Thailand; however, fisheries bycatch mortality is not listed as a threat to any species in Thailand.⁴⁹¹ Mr. Guinea listed four anthropogenic threats to sea turtle populations in Thailand: (i) the over-use of marine turtles and their eggs as food in the past; (ii) the sale of marine turtle products to tourists and for international trade; (iii) the deterioration of nesting habitats and marine pollution; and (iv) the incidental capture of marine turtles in commercial fishing operations.⁴⁹² Shrimp trawling is not singled out in this list as a threat in Thailand, as it is in Mr. Guinea's list of US anthropogenic threats, suggesting that the reference to "commercial fishing operations" is not specifically targeted to shrimp trawling.

5.374. Dr. Poiner also identified several human-induced threats to sea turtles in Thailand: egg harvests, adult harvests, shrimp trawling, pelagic fishing gear, gill nets, debris ingestion, entanglement, and habitat alteration and loss.⁴⁹³ With respect to Thailand, the chart presented by Dr. Poiner is based on three sources. The Limpus article (Limpus, 1997) has previously been discussed and does not identify shrimp trawling as a threat that must be addressed in Thailand. The Settle article⁴⁹⁴ states that the study upon which the article is based did not address threats at sea, that the dominant threat to sea turtle survival includes egg collection and turtle hunting, that indirect take in numerous types of fishing gear, such as trawls, drift nets, and purse seines, plays a significant role, and that loss of nesting habitat to beach from development is another serious threat. Further, the Monanunsap article⁴⁹⁵ identifies shrimp trawling as an issue only in some locations in Thailand and states that the ban on in-shore fishing and regulations controlling the number of trawls and pushnets have reduced incidental sea turtle capture in trawls. In general, Dr. Poiner stated that it is difficult to rank the various sources of mortality.⁴⁹⁶

5.375. Dr. Frazier similarly identified a variety of threats to various species and in various locations in Thailand.⁴⁹⁷ He noted that "the most recent review of the status of marine turtles in Thailand identifies [the threats as] commercial exploitation of sea turtles and their eggs, coastal development, heavy fishing activities (trawling, gill nets, and long lines)".⁴⁹⁸ Dr. Frazier also cites a 1996 press report by Matchima as indicating that sea turtles have been caught and killed by trawlers. In this respect, we note the 1996 article by Matchima indicates that small trawlers, not deep-sea large trawlers, are responsible for netting and killing most sea turtles and that the small boats are using longline hooks and gill nets.⁴⁹⁹ Further, Dr. Frazier indicates that excessive exploitation may be occurring with respect to green and ridley turtles in Thailand.⁵⁰⁰

5.376. Dr. Eckert stated that there are a number of threats to sea turtle populations in Thailand, and that the most serious appear to be "shrimp trawling and killing of turtles and taking of eggs".⁵⁰¹ However, there is substantial evidence calling into question Dr. Eckert's identification of shrimp trawling, as opposed to other forms of incidental take, as one of the three most serious threats in Thailand. In this respect, the sources cited by Dr. Eckert do not rank trawling vis-à-vis other human-induced threats, and cite trawling as a factor only in certain areas of Thailand and generally in conjunction with other threats. Further, the sources identify the threat as trawling too close to shore - a threat addressed by Thai legislation. In Hill (1991), the complaint voiced by one villager on the Andaman Sea coast is that "large trawling boats ... illegally lay their seines too close to shore, within the legal three kilometres limit".⁵⁰² The K. Eckert (1993) source⁵⁰³ cited by Dr. Eckert is a compilation of available sources concerning threats to sea turtles undertaken for purposes of analysing threats posed by high sea drift nets. As an initial matter, we note that this compilation of available data occurred prior to the report on the Night Trawl Study⁵⁰⁴ or the study by Sujittosakul and Senaluk⁵⁰⁵, that demonstrated a lack of interaction between shrimp and trawlers around Kram Island and therefore could not include these sources in the discussion on Thailand. Further, this source similarly identifies the problem as interaction between shrimp and trawlers in shallow waters. With respect to quantification threats, the source identifies the impact of both trawling and longlining as "unknown" but possibly large. The full quote from that article is that

Notably, the K. Eckert compilation of sources omits reference to the fact that catch rates from single trawlers appear low. Moreover, it is not even clear that the statement made in the Polunin and Nuitjy article is referring to the effect of individual Thai trawlers in Thai waters; one of the sources referred to in that article relates to single trawlers in the south China Sea and is entitled Variations in size and composition of demersal trawler catches from the North coast of Java with estimated growth parameters for three import and food-fish species.⁵⁰⁷ Similarly, in another source entitled Report on the Java Sea Southeast Monsoon trawl survey June-December 1976, the authors explained in the introduction that because Indonesia "is far richer in sea turtles than is Thailand; most of this account therefore deals with Indonesia".⁵⁰⁸ Finally, it is important to note that in the section of the article on conservation methods, the authors do not even mention TEDs or any regulation of the fishing industry. Instead, they focus on measures to address direct exploitation.

5.377. Dr. Eckert also cites Status of Marine Turtles in Thailand, by Chantrapornsyl.⁵⁰⁹ Thailand already has discussed this source in detail. With respect to green and hawksbill turtles located in the Gulf of Thailand at Khram Island, the article states that a reduction in the number of sea turtles is due to "heavy fishing activities" including trawling, drift gill nets and long-lines. No statement is made as to which particular activity has the greatest impact. With respect to the Andaman Sea Coast, trawling is cited as a problem only near Phrathong island and in conjunction with egg collection, gill nets, and housing and hotel development. The article notes that the prohibition against commercial fishing within 3 km of the coastline was enacted because of a finding that most sea turtles in Thailand are caught from shallow water trawling boats. Finally, Dr. Eckert cites Hill (1992), which is another story about the same Andaman sea village involved in the 1991 Hill story. As is the case with the other sources, the article states that "the main problem remaining is that of the large trawling boats seining within 3 km of shore".⁵¹⁰

5.378. Based on the responses of the experts, it is clear that the threats and their intensities vary both throughout the world and throughout Thailand. The responses therefore establish that the US assertion that shrimp trawls cause the greatest human-induced mortality to sea turtles is simply not correct with respect to either the world at large, or Thailand.

5.379. The other factual assertion relied upon by the United States to demonstrate that its conservation measures are "necessary" within the meaning of Article XX(b) is that other measures are not sufficient to protect sea turtles. However, since threats and the intensity of threats vary from region-to-region, priority responses also vary. In fact, a majority of the experts concluded that an obligatory TEDs requirement is not an essential conservation measure in all areas where sea turtles occur. Further, some experts provided evidence of conservation programmes that do not include TEDs and nonetheless have produced positive results.

5.380. The majority of the experts' responses indicate that priority responses that should be enacted in any particular jurisdiction depend on the threats present - the most serious threats should be addressed first. For example, Dr. Poiner stated that "priority conservation measures for sea turtle conservation will not be the same for all sea turtle populations and all countries concerned. It would be inappropriate to implement uniform measures".⁵¹¹ Mr. Guinea stated that the conservation measure that should be implemented on a priority basis is the preservation of nesting habitats and the offshore refuge habitats for nesting females⁵¹² - steps that Thailand has already taken in several areas. He further stated that only fishing activities that do not harm adult sea turtles or hatchlings should be permitted within the offshore sanctuary⁵¹³ - in effect, advocating an area closure alternative similar to Thailand's ban on fishing within 3 km of the coast.

5.381. Mr. Liew suggested that every measure that prevents sea turtles from being killed is a priority. He noted however, that "in places where exploitation of eggs is still substantial, they would still be ranked high. Differences in priority would exist for different populations, regions and species...".⁵¹⁴ He also noted that if coastal areas are protected during nesting season, the threat caused by fishing may be reduced.⁵¹⁵ Dr. Eckert noted that "of greatest importance to any sea turtle conservation programme is to address the problem that led to the 'endangered' status of the stock or population as a first priority in conservation".⁵¹⁶ Since the experts seem to agree that the factor that has lead to the endangered status of all species in Thailand is historic and continued direct exploitation of turtles and eggs, measures addressing the direct exploitation of turtles and eggs should be Thailand's highest priority. As this review of comments demonstrates, priority responses to sea turtle mortality can vary by location. A conservation programme designed to address the most significant threat in one area is not likely to address the most significant threat in other areas. Therefore, uniform conservation measures are not advisable.

5.382. In addition to noting that priority responses to sea turtle mortality will vary, the majority of experts stated that obligatory use of TEDs is not an essential conservation measure in all areas. In fact, some experts provided examples of successful conservation management programmes that did not include TEDs. Finally, although one expert indicated that TEDs were a necessary conservation measure, the rationale provided is unpersuasive.

5.383. Even in areas where shrimp trawling poses a threat to the sea turtle population, a majority of the experts agree that there are many alternatives to the use of TEDs. Specifically, in response to the Panel's question on whether obligatory use of TEDs for shrimp trawling is an essential conservation measure in all areas where sea turtles occur, both Dr. Poiner and Mr. Guinea referred to TEDs as one of several available management tools.⁵¹⁷ Other options include "exclusion zones, time of trawl activity, vessel size, number of nets, net mesh size and duration of individual trawls".⁵¹⁸ The conservation measures chosen depend on a number of factors, including "management objectives, the nature of the fishery and ease of surveillance and enforcement".⁵¹⁹

5.384. Mr. Liew stated that TEDs, or other similar devices, should only be required on shrimp trawls operating in areas where the likelihood of incidental turtle capture is high⁵²⁰, and cautioned as follows:

In conclusion, he noted that "TEDs use should not be mandated blindly without proper studies".⁵²² As is clear from his comments, TEDs are not necessary on every shrimp trawl.

5.385. Several of the experts also provided specific examples of management programmes that did not require TEDs but nonetheless produced positive results.⁵²³ For example, Mr. Liew noted that stocks of green turtles and hawksbill turtles from Malaysia/Philippines may be showing recovery after many years of intensive conservation management that involved beach protection and hatcheries.⁵²⁴ This recovery has occurred without a TEDs requirement even though shrimping occurs in the area.⁵²⁵ In addition, studies were cited that indicated that in areas where the impact of egg harvest is great, conservation measures that focus on preventing egg harvest may have a significant impact.⁵²⁶ In materials submitted by Mr. Liew, Dr. Limpus identified the Ko Khram rookery (which is a protected nesting beach and offshore refuge due to its location inside a Thai naval base security zone in the Northern Gulf of Thailand) as "the only long-term, stable nesting green turtle population in Southeast Asia".⁵²⁷ The experience at Ko Khram indicates that Thailand's chosen conservation measures of beach protection, egg and turtle protection, and the ban on commercial fishing within 3 km off shore should effectively protect sea turtles in Thai waters assuming resources do not have to be diverted from enforcing these measures. The majority of the experts, therefore, specifically refuted the US claim that, without TEDs, other measures to protect sea turtles are not sufficient.

5.386. Only one of the experts, Dr. Eckert, considered use of TEDs and essential conservation measure.⁵²⁸ However, as the following discussion indicates, the rationale Dr. Eckert provides a support for this opinion is unpersuasive. Dr. Eckert indicated that TEDs use should be obligatory because TEDs "provide the best opportunity to reduce turtle bycatch with the greatest efficiency and lowest cost to the fishing industry".⁵²⁹ Dr. Eckert then indicated that obligatory TEDs requirements should be pursued before other alternatives because of ease of enforcement. He further noted that

5.387. With respect to efficiency, in actual use TEDs have not been shown to be efficient at excluding sea turtles. Furthermore, no support has been offered for the assertion that TEDs enforcement is more easily accomplished, or less expensive, than enforcement of other measures such as area closures. Due to the ease with which TEDs can be disengaged, the only way to enforce use is for enforcement officers to visit operating trawls individually and inspect the net - even then an inspector may not be able to detect that the TED has been tampered with.⁵³¹ In fact, the United States' own experience calls into doubt the assertion that enforcing TEDs usage is easy or inexpensive.⁵³² Thus, the rationale for Dr. Eckert's preference for TEDs is unpersuasive. On whole, the experts' responses refute the United States' claim that without TEDs other conservation measures are insufficient.

5.388. In its presentations to the Panel, the United States has argued that the measures at issue "relate to" the conservation of sea turtles within the meaning of Article XX(g) because shrimp trawl nets are the greatest cause of human-induced sea turtle deaths and because TEDs are highly effective in preventing such mortality. Specifically, the United States cited these "facts" to demonstrate a "substantial relationship" between the measures at issue and the conservation of sea turtles. The information presented by the experts contradicts the factual assertions offered by the United States. As previously discussed, the experts' reports conclude that threats to sea turtles vary by region and species. Therefore, the responses do not support the US contention that shrimp trawling is the greatest human-induced cause of sea turtle mortality, one basis for the US claim that there is a substantial relationship between its measures and sea turtle conservation. In fact, the responses indicate that a uniformly imposed measure not targeted to the most significant threats in an area or region may have a negative conservation effect, since, given scarce resources, more serious threats may then go unaddressed.

5.389. Further, evidence presented indicates that while TEDs may be highly effective in theory, they have not been highly effective in practice. Specifically, the evidence presented indicates that, for a variety of reasons, TEDs have not been effective throughout the United States, even though US efforts to develop and implement a TEDs requirement have been underway for at least a decade. Therefore, the responses do not support the second factual premise for the US claim that a substantial relationship exists between the US measures and conservation of sea turtles. The United States has argued that TEDs effectively prevent the drowning of sea turtles in shrimp trawl nets -- noting that properly installed TEDs approach 97 per cent efficiency in allowing sea turtles to escape from shrimp trawl nets. Evidence presented by the experts indicates that while TEDs may be effective in tests, in actual use, trawling with TEDs may not lead to a reduction in strandings. For example, Dr. Poiner noted a 1995 study that compared the relationship between sea turtle standing rates and shrimp fishing intensities in the Gulf of Mexico for pre-TEDs and post-TEDs periods and found no difference in stranding rates.⁵³³ Mr. Guinea also noted that sea turtles continue to wash ashore in the United States even though TEDs are compulsory.⁵³⁴

5.390. Mr. Liew noted that use of TEDs by commercial fishermen has been in force in the United States for the longest time, but that as recently as 1997 there were still large numbers of sea turtle strandings - even though compliance was stated to be 96.9 per cent.⁵³⁵ Further, he noted that there was a big decline in turtle strandings when the Gulf of Mexico was temporarily closed to shrimping. He concluded that "[a]ll of these examples indicate that problems still exist in the use of TEDs and mandating fishermen to use them does not guarantee that sea turtles will be safe from shrimp trawls".⁵³⁶ Dr. Frazier's comments evidence a mixed record on TEDs efficiency in the United States. He indicated that studies in South Carolina indicate that TEDs have significantly reduced turtle mortality. However, he also noted that there where high levels of strandings in Louisiana and Texas and stated that they are attributed to "improper use of TEDs, use of inadequate TEDs and intense pulse fishing".⁵³⁷ This information demonstrates that, even with TEDs, high levels of strandings still occur in the United States. Therefore, in actual use, TEDs have not been nearly as effective at reducing sea turtle mortality as claimed by the United States. Based on this information, the United States cannot support its second factual basis for asserting that there is a substantial relationship between the measures at issue and the conservation of sea turtles.

5.391. A common thread throughout the majority of responses is that to have a positive conservation effect, the development of particular conservation practices must involve the communities that will engage in such practices. On an international level, the issues at hand call for cooperation, not coercion.⁵³⁸ A conservation measure unilaterally imposed by a foreign country will not have a positive effect because if will not enjoy the support of the community. As the experts make clear, conservation measures must be "owned" by the involved community in order to have a positive effect. Specifically, "[c]onservation programmes should emanate from within a country so that implications on cultural, economic and social issues can be addressed at the same time".⁵³⁹ Further, "it is important for each region, country or state to assess their own sea turtle population, examine the threats affecting them and prioritize conservation strategies accordingly".⁵⁴⁰ Moreover, a participatory solution to trawl bycatch that includes negotiation and mediation with the industry can have substantial advantages over a litigation and legislation approach.⁵⁴¹ The US measures, however, are based on coercion and, therefore, are not "owned" by the affected communities. Based on these comments, and because the US measures are unilateral and externally imposed, it does not appear that the measures will have the intended effect on the conservation of sea turtles. The United States has usurped each State's ability to address cultural and societal factors, to prioritize conservation measures, and to engage in a dialogue with the affected industry aimed at resolving any incidental sea turtle capture that may occur.

5.392. The information presented by the experts also refutes the contention that Thailand and the other newly affected nations received even-handed treatment as a result of the application of Section 609. Specifically, the responses of several of the experts indicate that there are significant differences between the US shrimp fishery and the geographical area within which it operates and other shrimp fisheries and their area of operations. The technology developed in the United States must be adapted before it can be used in other locations.⁵⁴² In addition, development of a "local" TED is tied to acceptance by the local fishery and "[t]here needs to be considerable modification and trial before TEDs or any bycatch reduction device, e.g. fish eye, etc., is accepted by the fishery".⁵⁴³ Thus, implementation of a TEDs programme takes a substantial amount of time, as noted by Mr. Liew.⁵⁴⁴ Dr. Poiner also noted that a requirement imposed through involvement of the stakeholders and negotiation and mediation has worked better in some situations than the litigation/legislation model adopted by the United States.⁵⁴⁵ Based on these statements, the United States was not justified in providing Thailand with only four months (a phase-in period that Thailand could not meet) in which to implement a TEDs requirement simply because the United States has developed a TED for use in US waters by US fishermen.

5.393. In defending its contention that the measures at issue are in accordance with the Preamble of Article XX, the United States argued that the shorter phase-in period provided Thailand and the other newly-affected nations vis-à-vis the originally affected nations was justified. The basis for this argument was that TEDs technology was not well developed or easily available, especially for developing countries, when the requirement was applied to the originally affected nations, but that extraordinarily effective TEDs were available by the time the requirement was applicable to newly-affective nations.

5.394. As previously noted, TEDs developed in the United States are not extraordinarily effective in practice. Even putting aside this question, as Thailand has just described, the evidence presented by the experts indicates that TEDs designed for US shrimpers in US waters must be modified before they can be used in other waters. This process, which is closely tied to acceptance of the technology, takes time. Therefore, the United States cannot prove that it was justified in providing US shrimpers and shrimpers from originally-affected nations a substantial period of time to implement the TEDs requirement, while provided the newly-affected nations with only four months. Application of the US measures, thus, resulted in arbitrary or unjustified discrimination between Members where the same conditions prevail (in this case, implementation of a conservation measure not previously required) and is a disguised restriction on international trade.

5. Comments by the United States

5.395. The United States appreciates this opportunity to provide comments on the responses received from the five experts selected by the Panel. The United States greatly appreciates the time and attention that the experts have devoted to the preparation of their responses. As discussed below, the responses of the experts can make a valuable contribution toward the resolution of this dispute.

5.396. Experts may provide a panel information, advice, and their opinions on certain aspects of the matter that is the subject of the dispute.⁵⁴⁶ Experts can provide a panel with vital perspectives, information and advice on technical issues. At the same time, a panel cannot ask experts to advise it on issues or measures which are beyond the panel�s own terms of reference, including issues which are outside the scope of any agreement to be interpreted by the panel. Furthermore, it is clear that a panel cannot delegate to experts the panel's central task of interpreting the agreement(s) at issue in a dispute. Experts may advise only on factual issues, not on questions of law nor on the application of the legal standards in the agreement(s) to the facts at hand. The Panel has recognized this principle by selecting persons with expertise in scientific and technical matters, rather than in the Marrakesh Agreement Establishing the World Trade Organization ("WTO Agreement").

5.397. Resolution of this dispute depends primarily on a determination of whether the US measures in question relate to the conservation of an exhaustible natural resource which are made effective in conjunction with restrictions on domestic production, or whether the measures are necessary to protect animal life or health. To aid the Panel in making this determination, the parties have presented a substantial amount of factual information that is scientific or technical in nature. The United States believes that, consistent with the WTO Agreement and the Understanding on Rules and Procedures Governing the Settlement of Disputes, the Panel can use the responses received from the experts to better inform their judgment concerning the key scientific or technical questions which lie at the heart of this dispute:

• Are sea turtles threatened or endangered worldwide, including in Complainants' waters?

• Does shrimp trawl fishing without TEDs result in the death of large numbers of sea turtles?

• Do TEDs, when properly installed and used, significantly reduce the mortality of sea turtles caused by shrimp trawl nets?

5.398. The following discussion reviews relevant aspects of the experts' responses as they pertain to these core questions. Subsequently, the United States comments on certain specific responses of the experts (see paragraphs 5.420 to 5.431).

5.399. The experts agree with virtual unanimity that sea turtles are endangered worldwide, including in complainants' waters. Dr. Frazier and Mr. Guinea note that the International Union for the Conservation of Nature lists all species of sea turtles, except the Australian flatback, as either "endangered" or "critically endangered".⁵⁴⁷ Dr. Eckert concurs: "[G]lobal sea turtle populations have declined significantly to the point where all species are in danger of extinction".⁵⁴⁸ Dr. Poiner adds "most sea turtle populations in the world are severely depleted."⁵⁴⁹ Finally, Mr. Liew reports that "some populations have disappeared, some [are] near extinction, some [are] threatened but a few have shown some apparent recovery".⁵⁵⁰ As discussed below in more detail, most of the experts believe that there is insufficient evidence for a determination that any sea turtle species or population has recovered.

5.400. Data provided by the experts also underscores that, because of the long-range migrations of sea turtles, efforts by one nation to protect endangered or threatened sea turtles can only succeed if other nations cooperate. Dr. Frazier explains that "all of the six listed species of marine turtles disperse and migrate over vast distances, with no respect to national boundaries ... during its long life, an individual sea turtle will pass through many different environments, traversing a substantial - often vast - surface of the planet".⁵⁵¹ Mr. Guinea agrees: "All sea turtle species except the Australian flatback undergo extensive ocean migrations during their life".⁵⁵² Dr. Poiner reports that breeding adults usually migrate relatively long distances from the foraging areas to the traditional breeding rookeries".⁵⁵³

5.401. Dr. Eckert provides valuable insight on the migratory habits of leatherback sea turtles:

5.402. In this respect, the experts directly call into question the premise of the complainants that the sea turtles which nest on their beaches are somehow "their" sea turtles, and that the efforts of each of the complainants to protect sea turtles can succeed without regard to the circumstances affecting the same turtles in areas under the jurisdiction of other nations. Instead, as the United States has argued throughout these proceedings, endangered sea turtles are a shared global resource in the sense that they can be effectively protected only through the combined actions of many nations. We therefore concur with the conclusion of Dr. Frazier that "the conservation and management of migratory marine animals - marine turtles in this case - can only be accomplished through full international cooperation".⁵⁵⁵

5.403. The experts also agree that shrimp trawl nets used without TEDs in areas and at times where sea turtles occur will capture and drown large numbers of sea turtles, including in complainants' waters. As the United States has previously explained, shrimp trawl nets are dragged along the sea floor for long periods and will capture virtually anything in their path, including endangered sea turtles. Unless the trawl nets are equipped with TEDs, captured animals and debris will remain in the nets until they are emptied on deck. In the words of Dr. Frazier, "bottom trawling is known to cause major impacts on non-target species because it is an unselective method of fishing. Shrimp trawls are notoriously unselective".⁵⁵⁶ Mr. Guinea adds that, "trawls of long duration over areas inhabited by benthic feeding sea turtles; i.e., loggerhead, olive ridley, Kemp�s ridley, flatback and some adult greens or in waters adjacent to their rookeries will capture a proportion of the sea turtles present".⁵⁵⁷

5.404. Dr. Eckert reports that the incidental mortality of sea turtles in fishing operations is one of the two most significant anthropogenic threats to sea turtle species, the other being direct harvest of sea turtles (which all parties to this dispute have outlawed). He further notes that, while other kinds of fishing gear, including coastal gillnets and longlines, result in some incidental mortality of sea turtles, "by far the most serious threat to sea turtle stocks living in coastal environments are trawl fisheries".⁵⁵⁸ On this point, Dr. Frazier discusses the reasons why shrimp trawling (without TEDs) is a particularly dangerous fishing method for sea turtles:

5.405. Material provided by the experts further supports the contention of the United States that the mortality of sea turtles in shrimp trawl nets is not a phenomenon restricted to US waters or to the Western Hemisphere, but in fact occurs wherever sea turtles and shrimp trawling occur together, including in the complainants' region.

5.406. Dr. Poiner identifies the incidental capture of sub-adult and adult sea turtles in shrimp nets as one of the "major sources" of loggerhead and green sea turtle mortality in the Indo-Pacific region, particularly Malaysia and Thailand.⁵⁶⁰ Dr. Eckert finds that, in Thailand, shrimp trawling is one of the most serious threats to sea turtle populations and is a significant cause of sea turtle mortality, particularly for green sea turtles.⁵⁶¹ Many of the experts describe the large-scale killings of sea turtles caused by the shrimp trawl industry in India. Dr. Frazier notes that, "for over a decade, incidental capture and drowning in fishing gear has been known to be an important source of mortality of adult turtles, particularly in the Bay of Bengal; and trawlers, especially shrimp trawlers in Tamil Nadu, Andhra Pradesh, Orissa and West Bengal have consistently been singled out for impacts that they cause".⁵⁶²

To Continue With Chapter 5.407

⁴⁸⁶ Frazier para. 5.40 ("depending on the time, place and circumstances, the factors affecting a particular sea turtle, or stock of sea turtles, will vary."); Eckert paras. 5.25-5.37 (noting various threats that affect different species in different locations); Poiner para. 5.71 (showing that egg harvest and adult harvests are threats in Thailand and Malaysia, but not in the United States); Liew para. 5.69 (indicating that shrimp trawling is the most significant threat for the US mainland; fibropapilloma disease is a significant threat to green turtles in Hawaii, and egg exploitation and large scale hunting turtle meat is significant in Indonesia); Liew para. 5.89 (noting that in developed countries, mortalities caused by high technologies such as shrimp trawling are prominent, while in developing countries egg harvest and turtle harvest still occur and, other fishing techniques may have a greater impact than shrimp trawling); Liew para. 5.115 (noting that the relative importance of threats varies by species); Liew para. 292 (noting that in some regions threats due to other causes may impact sea turtles more significantly than shrimp trawling); Guinea para. 5.61 (noting that the nature and level of threat varies for each breeding unit). Interestingly, with respect to the impact of shrimp trawling on loggerheads in the United States, Dr. Eckert cites a 1987 source (two years before the imposition of the US Federal TEDs requirement) for the assertion that "this threat in the United States has largely been eliminated with the application of TEDs in shrimp trawls." (Eckert para. 5.36). Thailand believes this assertion has been largely discredited by information presented by several of the other experts concerning the high strandings of turtles in the United States since imposition of the TEDs requirement.

⁴⁸⁷ Frazier para. 5.43. 

⁴⁸⁸ See Poiner para. 5.116 ("Anthropogenic threats in the three countries [the United States, Malaysia and Thailand] are similar ... but their relative importance is different."); Poiner para. 5.118, (shrimp trawling is the most significant factor in the United States but is not a key factor in Australia); Liew para. 5.69 ("the factors that are known to cause decline in sea turtle populations are generally similar but differences do exist in terms of importance for different populations... The degree of importance of factors threatening turtles in different parts of the world does differ."); Liew para. 5.292 (noting the multiple factors that may impact the interaction between sea turtles and shrimp trawling and that the factors vary from region to region.); Guinea para. 5.15 (generalizations concerning sea turtle and shrimp trawl interaction "are incorrect and hamper management options of the individual countries in managing their breeding units of sea turtles."); Guinea para. 5.15 ("Because of their preferred habitats most greens and usually hawksbills and leatherbacks are relatively unaffected by trawling."); Frazier para. 5.102 ("each sea turtle population may have specific sources and intensities of mortality").

⁴⁸⁹ Guinea para. 5.18.

⁴⁹⁰ Guinea para. 5.124 (noting a single gill net killed more sea turtles in four days in Northern Australia than are killed annually in the same location in shrimp trawls).

⁴⁹¹ Liew para. 5.139. In the source material provided by Mr. Liew, Dr. Limpus notes that the small nesting population of hawksbills at Ko Khram appears to have stabilized in the last 20 years. While, as discussed below, the majority of experts agree that TEDs are not a required conservation measure, this evidence further demonstrates that alternatives such as area closures can be used to achieve conservation purposes.

⁴⁹² Guinea para. 5.106. It should also be noted that while Mr. Guinea states that any ranking given is indicated in the references listed, no such references appear to have been listed and therefore further comment is not possible.

⁴⁹³ Poiner para. 5.71.

⁴⁹⁴ Settle S., (1995), Status of Nesting Populations of Sea Turtles in Thailand and their Conservation, Marine Turtle Newsletter 68:8-13.

⁴⁹⁵ Monanunsap, S., (1997), Country Paper - Thailand, Proceedings of the Workshop on Marine Turtle Research and Management in Indonesia, Jember, East Java, Indonesia, November 1996, pp. 139-149.

⁴⁹⁶ Poiner para. 5.90.

⁴⁹⁷ Frazier paras. 5.56 and 5.96.

⁴⁹⁸ Frazier para. 5.96.

⁴⁹⁹ Matchima Chanswangpuwana, Thailand: Small Trawlers Blamed for Sea Turtle Losses, Bangkok Post, 11 March 1996.

⁵⁰⁰ Frazier para. 5.134.

⁵⁰¹ Eckert para. 5.94.

⁵⁰² Hill, G., (1991), Villagers in Thailand Protect Turtle Eggs, Bring Conservation Home, Marine Turtle Newsletter, 53:8-9.

⁵⁰³ Eckert, K., (1993), The Biology And Status Of Marine Turtles In The North Pacific Ocean, NOAA Tech Memo, NOAA-TM-NMFS-SWFSC-186. 156p.

⁵⁰⁴ The Night-Trawled Monitoring Survey During 1967-1996, Marine Fisheries Division, Department of Fisheries, Thailand, January 1997.

⁵⁰⁵ Sujittosakul, T. and Senaluk, S., (1997), Relationship Between Sea Turtle Nesting and Number of Shrimp Trawlers Around Kram Island, Technical Paper No. 6, Marine Fisheries Division, Department of Fisheries, Thailand.

⁵⁰⁶ N.V.C. Polunin and N.S. Nuitja, (1995 rev. ed.), Sea Turtle Populations of Indonesia and Thailand, K.A. Bjorndal, Biology and Conservation of Sea Turtles, p. 359.

⁵⁰⁷ Sudrajat, A. and U. Beck, (1978), Variations in Size and Composition of Demersal Trawlers Catches from the North Coast of Java with Estimated Growth Parameters for Three Important Foodfish Species, Laporan Penelitian Perikanan Laut, 4:1-80.

⁵⁰⁸ Losse, G. F. and A. Dwiponggo, (1977), Report on the Java Sea Southeast Monsoon Trawl Survey, June-December 1976, Laporan Penelitian Perikanan Laut (Special Report), 3:1-119.

⁵⁰⁹ Phuket Marine Biological Center, (1997).

⁵¹⁰ Hill, G., (1992), The Sustainable Sea Turtle, Marine Turtle Newsletter, 58:2-5.

⁵¹¹ Poiner para. 5.185.

⁵¹² Guinea para. 5.181.

⁵¹³ Guinea, ibid.

⁵¹⁴ Liew para. 5.183-184.

⁵¹⁵ Liew para. 5.115.

⁵¹⁶ Eckert para. 5.240.

⁵¹⁷ Poiner para. 5.231 and Guinea para. 5.229.

⁵¹⁸ Guinea para. 5.65. Mr. Guinea also noted that "high technology approach to conservation of so called developed countries appears at odds when dealing with artisanal fishers and trawl fleets of countries that are still developing." Guinea para. 5.66 See also, Guinea para. 5.124 (noting that "short [shrimp trawl] tows of less than 60 minutes pose little threat to sea turtles").

⁵¹⁹ Poiner para. 5.231.

⁵²⁰ Liew para. 5.207.

⁵²¹ Ibid. See also Liew para. 5.230 ("In certain areas, TEDs use is essential, but scientific studies must be conducted with unbiased data to show its necessity and to convince the fishermen in those areas why the should use them").

⁵²² Liew, ibid.

⁵²³ Guinea para. 5.189 (noting the recovery of green turtles and hawksbills on the Turtle Islands of Sabah based on protection of nesting beaches and offshore refuges); Liew para. 5.246 (noting that protection of turtle nesting beaches, eggs and hatchlings has lead to recoveries for greens and hawksbills in the Turtle Islands, leatherbacks in South Africa, leatherbacks in St. Croix and Surinam and greens in the French Frigate Scholes, Hawaii.).

⁵²⁴ Liew para. 5.191.

⁵²⁵ Although Mr. Liew cautioned that urgent attention would be needed if it were determined that the impact of the trawling was significant, mandatory TED use was not required in order to produce these conservation gains.

⁵²⁶ Poiner para. 5.201. Specifically Dr. Poiner discussed two separate studies indicating that protection of eggs/hatchlings could have a major impact on long-term stock viability. The conclusion was based on the fact that the study adopted a higher egg/hatchling stage mortality rate than used in a study on a US loggerhead population, an assumption that coincides with the fact that the threat of egg harvest is much greater in countries other than in the United States.

⁵²⁷ Limpus, C.J., (1997), Marine Turtle Populations o f 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, Nov. 1996, pp. 37-73.

⁵²⁸ Dr. Frazier considered TEDs to be only a "stop-gap" measure and instead called for a ban on trawling in all developing countries. Frazier para. 5.225. Further, he stated that "[W]ith or without TEDs, with or without integrated sea turtle conservation plans, there will be no lasting conservation of sea turtles on this planet while the majority of humanity slides even deeper into poverty and finds even fewer alternatives for survival." Frazier para. 5.145. Therefore, apparently Dr. Frazier believes that TEDs are not sufficient to protect sea turtles.

⁵²⁹ Eckert para. 5.223.

⁵³⁰ Ibid. Dr. Frazier also stated that area closures do not work because of lack of enforcement. Frazier para. 5.226.

⁵³¹ See Decline Of The Sea Turtles Causes and Prevention, National Research Council, National Academy of Sciences, (1990), p. 134 ("Enforcing proper use of TEDs is also a major concern, because TEDs can be readily disabled by altering the tension of spring cords or tying them in a fashion virtually undetectable by inspectors."). Further, as indicated in an article of the Bangkok Post (Troubled Waters, 17 April 1997), inspection in the United States involves visits by the US Coast Guard, and since the shrimpers know when an inspection will take place, the US Coast Guard is not likely to catch violators.

⁵³² See Poiner para. 5.222 (after discussing a study that revealed no difference in stranding rates in pre-TEDs and post-TEDs time periods in the Gulf of Mexico, Dr. Poiner stated that "[a] variety of hypotheses were suggested to explain the continuation of the statistical relationship including violation of TED regulations in the fisheries."); Guinea para. 5.220 (noting that in the United States compliance appears to be a problem).

⁵³³ Poiner para. 5.222.

⁵³⁴ Guinea para. 5.220 (also noting that in the United States, compliance appears to be a problem). Mr. Guinea further suggested that TEDs will not be effective in all shrimp trawls, stating that "when properly installed and used, a TED will significantly reduce, but not eliminate, the mortality of sea turtles in some shrimp trawls." Guinea para. 5.206.

⁵³⁵ Liew 5.221; see also, Liew para. 5.207 ("even though TED use is mandatory in the United States and in their neighbouring countries, large numbers of turtle strandings still occur there").

⁵³⁶ Liew para. 5.221. Further, he noted that in the United States studies are underway to determine if TEDs should be required in all US waters where shrimping occurs. Liew para. 5.208.

⁵³⁷ Frazier para. 5.203, referring to Crowder et al. (1995) and para. 5.217. Thailand noted that the same study, which concludes that TEDs reduce strandings by about 44 per cent, is cited by Dr. Eckert (para. 5.210).

⁵³⁸ Frazier para. 5.13 ("The issue at hand involves many other nations neighbouring those five [United States, Thailand, Malaysia, Pakistan and India]; the conservation and management of migratory animals - marine turtles in this case - can only be accomplished through full international cooperation").

⁵³⁹ Guinea para. 5.166.

⁵⁴⁰ Liew para. 5.192.

⁵⁴¹ Poiner para. 5.231.

⁵⁴² Poiner para. 5.239; Frazier para. 5.233.

⁵⁴³ Guinea para. 5.236.

⁵⁴⁴ Liew para. 5.208.

⁵⁴⁵ Poiner para. 5.231.

⁵⁴⁶ See Article 13 of the Understanding on Rules and Procedures Governing the Settlement of Disputes.

⁵⁴⁷ Frazier para. 5.42 and Guinea para. 5.60.

⁵⁴⁸ Eckert para. 5.19.

⁵⁴⁹ Poiner para. 5.71.

⁵⁵⁰ Liew para. 5.68.

⁵⁵¹ Frazier paras. 5.13 and 5.39.

⁵⁵² Guinea, para. 5.262.

⁵⁵³ Poiner para. 5.141.

⁵⁵⁴ Eckert paras. 5.21 and 5.256.

⁵⁵⁵ Frazier para. 5.13.

⁵⁵⁶ Frazier para. 5.122.

⁵⁵⁷ Guinea para. 5.65.

⁵⁵⁸ Eckert paras. 5.33 and 5.119.

⁵⁵⁹ Frazier paras. 5.100-101.

⁵⁶⁰ Poiner para. 5.185.

⁵⁶¹ Eckert paras. 5.94 and 5.35.

⁵⁶² Frazier para. 5.96.