I. INTRODUCTION

1. 1. In a letter dated 8 October 1996, India, Malaysia, Pakistan and Thailand, acting jointly, requested consultations with the United States pursuant to Article 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes ("DSU") and Article XXII:1 of the General Agreement on Tariffs and Trade 1994 ("GATT 1994") regarding the ban imposed upon importation of certain shrimp and shrimp products from the respective countries by the United States under Section 609 of U.S. Public Law 101-162¹ ("Section 609") and the "Revised Notice of Guidelines for Determining Comparability of Foreign Programs for the Protection of Turtles in Shrimp Trawl Fishing Operations"² (WT/DS58/1). Consultations were held on 19 November 1996 without resulting in a satisfactory solution of the matter.

1.2. In a communication dated 9 January 1997, Malaysia and Thailand requested the Dispute Settlement Body ("DSB") to establish a panel to examine, under Article XXIII:2 of GATT 1994 and Article 6 of the DSU, the partial embargo on the importation of certain shrimp and shrimp products implemented through a series of actions, including enactment of Section 609, promulgation of regulations and issuance of judicial decisions interpreting the law and regulations (WT/DS58/6). In a communication dated 30 January 1997, Pakistan made the same request to the DSB (WT/DS58/7). On 25 February 1997, the DSB established a panel pursuant to the request of Malaysia and Thailand. At the same meeting, the DSB established a panel in accordance with the request made by Pakistan. The DSB also agreed that the two panels would be consolidated into a single panel, pursuant to Article 9 of the DSU, with standard terms of reference (WT/DSB/M/29).

1.3. In a communication dated 25 February 1997, India requested the DSB to establish a panel pursuant to Article XXIII of GATT 1994 and 6 of the DSU (WT/DS58/8). At its meeting on 10 April 1997, the DSB established a panel in accordance with the request made by India. The DSB also agreed that this Panel would be consolidated with the Panel already established at the request of Malaysia, Thailand and Pakistan on 25 February 1997, pursuant to Article 9 of the DSU (WT/DSB/M/31).

1.4. The parties to the dispute agreed that the Panel should have standard terms of reference (Article 7 of the DSU):

1.5. On 15 April 1997, the parties to the dispute agreed on the following composition of the Panel (WT/DS58/9):

1.6. Australia, Colombia, Costa Rica, Ecuador, El Salvador, the European Communities, Guatemala, Hong Kong, Japan, Mexico, Nigeria, the Philippines, Senegal, Singapore, Sri Lanka and Venezuela reserved their third-party rights in accordance with Article 10 of the DSU.

1.7. The Panel met with the parties to the dispute on 17-19 June 1997 and on 15-16 September 1997. It met with the interested third parties on 19 June 1997.

1.8. In a communication dated 22 September 1997, the Chairman of the Panel informed the DSB that the Panel would not be able to issue its report within six months. The reasons for that delay are stated in document WT/DS58/10.

1.9. A meeting with scientific experts selected by the Panel, at which the parties were present, was held on 21 and 22 January 1998.

1.10. The Panel issued its interim report to the parties on 2 March 1998. The Panel issued its final report to the parties on 6 April 1998.

II. FACTUAL ASPECTS

1. Basic Facts About Sea Turtles

2. 1. Seven species of sea turtles are currently recognized: the green turtle (Chelonia mydas), loggerhead (Caretta caretta), flatback (Natator depressus), hawksbill (Eretmochelys imbricata), leatherback (Dermochelys coriacea), olive ridley (Lepidochelys olivacea), and Kemp's ridley (Lepidochelys kempi).

2.2. Most species of sea turtles are distributed around the globe, in subtropical or tropical areas. Sea turtles spend their lives at sea, where they migrate between their foraging and their nesting grounds, but reproduce on land. Adult females nest in multi-year cycles, coming ashore to lay clutches of about 100 eggs in nests they dig on the beach. After about 50 to 60 days of incubation, the hatchlings dig their way out of the nest and head for the sea. Few survive and reach the age of reproduction (10-50 years, depending on the species). While maturing, they move through a variety of habitats. Little is known about the existence of sea turtles at seas.

2.3. Sea turtles have been adversely affected by human activity, either directly (sea turtles have been exploited for their meat, shells and eggs), or indirectly (incidental captures in fisheries, destruction of their habitats, pollution of the oceans). Presently, all species of sea turtles are included in Appendix I of the 1973 Convention on International Trade in Endangered Species ("CITES"). All species except the Australian flatback are listed in Appendices I and II of the 1979 Convention on Migratory Species of Wild Animals ("CMS") and appear in the IUCN Red List as endangered or vulnerable.

2. The US Endangered Species Act (ESA) and Related Legislation

2.4. All sea turtles that occur in US waters are listed as endangered or threatened species under the Endangered Species Act of 1973 ("ESA"). The ESA prohibits take of endangered sea turtles within the United States, within the US territorial sea, and the high seas, except as authorized by the Secretary of Commerce (for sea turtles in marine waters) or the Secretary of the Interior (for sea turtles on land).

2.5. Research programmes in the Gulf of Mexico and the Atlantic Ocean off the southeastern United States led to the conclusion that incidental capture and drowning of sea turtles by shrimp trawlers was the most significant source of mortality for sea turtles.³ Within the context of a programme aiming at reducing the mortality of sea turtles in shrimp trawls, the National Marine Fisheries Service ("NMFS") developed turtle excluder devices ("TEDs"). A TED is grid trapdoor installed inside a trawling net that allows shrimp to pass to the back of the net while directing sea turtles and other unintentionally caught large objects out of the net. In 1983, NMFS began a formal programme to encourage shrimp fishermen to use TEDs voluntarily, so as to reduce the incidental catch and mortality of sea turtles associated with shrimp trawling. As part of the voluntary TED programme, NMFS delivered TEDs to volunteer shrimp fishermen and showed them how to properly install and use the TEDs. However, this voluntary programme did not turn out to be successful because an insufficient number of fishermen used TEDs on a regular basis.

2.6. In 1987, the United States issued regulations, pursuant to the ESA, whereby all shrimp trawlers were required to use TEDs or tow time⁴ restrictions in specified areas where there was a significant mortality of sea turtles in shrimp trawls. In offshore waters, all shrimp trawlers 25 feet and longer were required to use qualified TEDs and all shrimp trawlers smaller than 25 feet were required to restrict tow times to 90 minutes or less, or the use TEDs. In inshore waters, all shrimp trawlers were required to restrict tow times to 90 minutes or less. The rules, which became fully effective in 1990, further set forth specifications for TEDs, areas and seasons for which TEDs and/or tow times were required. They were subsequently modified so as to require the use of TEDs at all times and places where shrimp trawl fishing interacts in a significant way with sea turtles. Five species of sea turtles were identified as living in the areas concerned and, thus, falling under the regulations: loggerhead (Caretta caretta), Kemp's ridley (Lepidochelys kempi), green (Chelonia mydas), leatherback (Dermochelys coriacea) and hawksbill (Eretmochelys imbricata).⁵

2.7. In 1989, the United States enacted Section 609 of Public Law 101-102⁶ ("Section 609", see Annex I). Section 609 calls upon the US Secretary of State, in consultation with the US Secretary of Commerce, inter alia, to initiate negotiations for the development of bilateral or multilateral agreements for the protection and conservation of sea turtles, in particular with foreign governments of countries which are engaged in commercial fishing operations likely to affect adversely sea turtles. Section 609 further provides that shrimp harvested with technology that may adversely affect certain sea turtles may not be imported into the United States, unless the President certified to Congress by 1 May 1991, and annually thereafter, that the harvesting nation has a regulatory programme and an incidental take rate comparable to that of the United States, or that the particular fishing environment of the harvesting nation does not pose a threat to sea turtles.

2.8. In 1991, the United States issued guidelines ("1991 Guidelines") for assessing the comparability of foreign regulatory programmes with the US programme. To be found comparable a foreign nation's programme had to include, inter alia, a commitment to require all shrimp trawl vessels to use TEDs at all times (or reduce tow times for vessels under 25 feet), or, alternatively, a commitment to engage in a statistically reliable and verifiable scientific programme to reduce the mortality of sea turtles associated with shrimp fishing. Foreign nations were given three years for the complete phase-in of a comparable programme. The 1991 Guidelines also determined that the scope of Section 609 was limited to the wider Caribbean/western Atlantic region, and more specifically to the following countries: Mexico, Belize, Guatemala, Honduras, Nicaragua, Costa Rica, Panama, Colombia, Venezuela, Trinidad and Tobago, Guyana, Suriname, French Guyana, and Brazil. It was also determined that the import restriction did not apply to aquaculture shrimp, whose harvesting does not adversely affect sea turtles.⁷

2.9. In 1993, the United States issued revised guidelines ("1993 Guidelines") providing that, to receive a certification in 1993, affected nations (those determined in the 1991 Guidelines) had to maintain their commitment to require TEDs on all commercial shrimp trawl vessels by 1 May 1994, and be able to demonstrate the use of TEDs on a significant number of shrimp trawl vessels by 1 May 1993.⁸ To receive certification in 1994 and in subsequent years, affected nations were required to use TEDs on all their shrimp trawl vessels, subject to a limited number of exemptions.⁹ The 1993 Guidelines eliminated the second option for certification which was contained in the 1991 Guidelines, i.e. the commitment to engage in a scientific programme to reduce the mortality of sea turtles in shrimp trawling.

2.10. In December 1995, the US Court of International Trade ("CIT") found that the 1991 and 1993 Guidelines were contrary to law in limiting the geographical scope of Section 609 to shrimp harvested in the wider Caribbean/western Atlantic region and directed the Department of State "to prohibit not later than May 1, 1996 the importation of shrimp or products of shrimp wherever harvested in the wild with commercial fishing technology which may affect adversely those species of sea turtles the conservation of which is the subject of regulations promulgated by the Secretary of Commerce ... ".¹⁰ The Department of State requested the CIT to modify its judgement by allowing a one-year extension for the worldwide enforcement of Section 609. In its request, the States Department argued, inter alia, that many of the major shrimp exporting nations would likely be unable to implement a comparable programme by 1 May 1996. The CIT refused the requested extension and confirmed the 1 May 1996 deadline.¹¹

2.11. In April 1996, the Department of State published revised guidelines ("1996 Guidelines") to comply with the CIT order of December 1995.¹² The new guidelines extended Section 609 to shrimp harvested in all foreign nations. The Department of State further determined that, as of 1 May 1996, all shipments of shrimp and shrimp products into the United States were to be accompanied by a declaration ("Shrimp Exporter's Declaration form") attesting that the shrimp or shrimp product in question was harvested "either under conditions that do not adversely affect sea turtles ... or in waters subject to the jurisdiction of a nation currently certified pursuant to Section 609".

2.12. The 1996 Guidelines define "shrimp or shrimp products harvested in conditions that does not affect sea turtles" to include: "(a) Shrimp harvested in an aquaculture facility ... ; (b) Shrimp harvested by commercial shrimp trawl vessels using TEDs comparable in effectiveness to those required in the United States; (c) Shrimp harvested exclusively by means that do not involve the retrieval of fishing nets by mechanical devices or by vessels using gear that, in accordance with the US programme ... would not require TEDs; (d) Species of shrimp, such as the pandalid species, harvested in areas in which sea turtles do not occur".

2.13. The 1996 Guidelines further determine the criteria for certifying a harvesting nation whose particular fishing environment "does not pose a threat of incidental taking of sea turtles in the course of commercial shrimp trawl harvesting" (Section 609 (b)(2)(C)) as follows: "(a) Any harvesting nation without any of the relevant species of sea turtles occurring in waters subject to its jurisdiction; (b) Any harvesting nation that harvests shrimp exclusively by means that do not pose a threat to sea turtles, e.g. any nation that harvests shrimp exclusively by artisanal means; (c) Any nation whose commercial shrimp trawling operations take place exclusively in waters subject to its jurisdiction in which sea turtles do not occur".

2.14. The 1996 Guidelines also provide that "other certifications" can be granted by 1 May 1996, and annually thereafter, to other harvesting nations "only if the government of that nation has provided documentary evidence of the adoption of a regulatory program governing the incidental taking of sea turtles in the course of commercial shrimp trawl harvesting that is comparable to that of the United States and if the average take rate of that incidental taking by vessels of the harvesting nation is comparable to the average take rate of incidental taking of sea turtles by United States vessels in the course of such harvesting." For the purpose of these "other certifications", a regulatory programme shall include, inter alia, "a requirement that all commercial shrimp trawl vessels operating in waters in which there is a likelihood of intercepting sea turtles use TEDs at all times. TEDs must be comparable in effectiveness to those used in the United States ...". Moreover, the average incidental take rate "will be deemed comparable if the harvesting nation requires the use of TEDs in a manner comparable to that of the US program ...". The 1996 Guidelines contain additional considerations to be taken into account in determining the comparability of foreign programmes, such as "other measures the harvesting nation undertakes to protect sea turtles, including national programs to protect nesting beaches and other habitats, prohibitions on the directed take of sea turtles, national enforcement and compliance programs, and participation in any international agreement for the protection and conservation of sea turtles."

2.15. In October 1996, the CIT ruled that the embargo on shrimp and shrimp products enacted by Section 609 applied to all "shrimp or shrimp products harvested in the wild by citizens or vessels of nations which have not been certified". The Court found that the 1996 Guidelines were contrary to Section 609 when allowing, with a Shrimp Exporter's Declaration form, imports of shrimp from non-certified countries, if the shrimp was harvested with commercial fishing technology that did not adversely affect sea turtles.¹³ The CIT later clarified that shrimp harvested by manual methods, which did not harm sea turtles, could continue to be imported even from countries which had not been certified under Section 609. The CIT also refused to postpone the worldwide enforcement of Section 609.¹⁴

2.16. As of 1 January 1998, the following 19 countries had been certified as having adopted programmes to reduce the incidental capture of sea turtles in shrimp fisheries comparable to the US programme: Belize, Brazil, Colombia, Costa Rica, Ecuador, El Salvador, Fiji, Guatemala, Guyana, Honduras, Indonesia, Mexico, Nicaragua, Nigeria, Panama, the People's Republic of China, Thailand, Trinidad and Tobago, and Venezuela. The following 16 nations have been certified as having shrimp fisheries in only cold waters where there was essentially no risk of taking sea turtles: Argentina, Belgium, Canada, Chile, Denmark, Finland, Germany, Iceland, Ireland, the Netherlands, New Zealand, Norway, Russia, Sweden, the United Kingdom and Uruguay. The following 8 countries have been certified on grounds that their fishermen only harvested shrimp using manual rather than mechanical means to retrieve nets: the Bahamas, Brunei, the Dominican Republic, Haiti, Jamaica, Oman, Peru and Sri Lanka.

III. MAIN ARGUMENTS

A. GENERAL

3. 1. India, Malaysia, Pakistan and Thailand requested the Panel to find that Section 609 of US Public Law 101-162 ("Section 609") and its implementing measures:

India, Pakistan and Thailand additionally requested the Panel to find that Section 609 was contrary to Article I:1 of GATT 1994.

3.2. Accordingly, India requested the Panel to recommend that the United States remove its embargo immediately in order to comply with its obligations under the General Agreement on Tariffs and Trade. Malaysia, Pakistan and Thailand requested the Panel to recommend that the United States take all necessary steps to bring Section 609 and its implementing measures into conformity with its obligations under the General Agreement on Tariffs and Trade.

3.3. The United States requested the Panel to find that Section 609 and its implementing measures fell within the scope of Article XX, paragraphs (b) and (g) of GATT 1994.

B. CONSERVATION AND MANAGEMENT OF SEA TURTLES

1. Sea Turtle Conservation

3.4. India submitted it had a well-established history of protecting endangered species, including sea turtles. For many centuries, the essential harmony between the environment and man had been a central precept in Indian society, based on the fact that the continued replenishment of environmental resources was crucial for the very livelihood of a vast majority of Indians. The objectives of environmental protection were therefore deeply ingrained in Indians. Environmental resources had traditionally been safeguarded by their close association with the teachings of India's major religions. For example, the turtle itself was considered by many Indians to be an incarnation of the Divine. Fishermen were particularly careful not to catch turtles in their nets while fishing. As early as 1972, India had enacted the Wildlife Protection Act that imposed penalties for the capture, destruction or trade in endangered species, including certain sea turtles. Such measures had been extremely successful in ensuring the survival of endangered species. For example, the nesting population of olive ridley had increased over the past ten years in the Gahirmatha region, off India's Orissa coast, and every year approximately 600,000 olive ridley sea turtles nested in this area. The local government had banned fishing and shrimping within a radius of 20 kilometres around Gahirmatha to protect these turtles. In addition, 65,000 hectares in the Bhitarkanika and Gahirmatha regions had been declared a sea turtle sanctuary.¹⁵ Other state governments had issued public notices reminding fishermen and others that catching or endangering sea turtles was illegal. Not only was the Government of India establishing programmes to ensure the preservation of sea turtles, but the Government had also established programmes to ensure that the laws were enforced. For example, the Indian Coast Guard, Forest Department and Fisheries Department assisted the Wild Life Protection Department officials in monitoring the annual nesting period in the Orissa Coast.

3.5. India further submitted that many other governmental institutes and departments, as well as non-governmental organizations, continued to implement projects and conduct studies for the conservation and preservation of sea turtles. The Central Marine Fisheries Research Institute in India monitored olive ridley turtles nesting in some regions during 1978 and 1986, and conducted an exhaustive study on the nesting population. The Institute also operated a hatchery for sea turtles in Madras, from which hatchlings were released at sea. The Institute was currently conducting a study on incidental catches of sea turtles during fishing in India. As part of India's ongoing efforts regarding the most efficient method of protecting sea turtles in its territory, two training programmes with shrimpers had been organized to discuss the fabrication and installation of TEDs. An Indian organization, CIFNET, even fabricated TEDs indigenously. Moreover, India was an active party of the CITES and had, accordingly, prohibited trade in endangered sea turtles. However, India could not find any provision in CITES which called for an import restriction on shrimp and shrimp products in order to protect and conserve sea turtles, nor could it find in CITES any reference to the TEDs as a "multilateral environmental standard" to be used for the protection and conservation of sea turtles. India did not accept the US assertion that the use of TEDs was the only way to keep sea turtles species found in India's territorial waters from becoming extinct; conservation programmes such as the ones undertaken by India were also essential for conserving sea turtles.

3.6. The protection of sea turtles was a challenging task being shared by a large number of countries in a variety of ways. The use of TEDs was not the only way to keep sea turtle species found in India's territorial waters from becoming extinct; conservation programmes such as the ones undertaken by India were also essential in furthering the goal of sea turtle protection. While India shared the US concern over the plight of sea turtles and considered it important to ensure their survival, the importance of this goal did not justify the United States taking unilateral actions that infringed upon India' sovereign right to formulate its own environmental and conservation policies. India considered that since it had adequate measures in place to protect and preserve endangered species of sea turtles, there was no need for the United States to impose its own agenda on third parties through the use of far-reaching, extraterritorial measures such as the one imposed by Section 609. This action constituted an unacceptable interference in policies within India's sovereign jurisdiction.

3.7. Malaysia submitted that none of the Malaysian fishermen used TEDs. A significant amount of wild harvested shrimps were caught using traditional mechanisms (such as hand retrieval nets) which would not in anyway cause incidental catches of turtles. In Sabah and Sarawak in particular, shrimps were caught in locations that were far from turtle nesting grounds. Sabah and Sarawak had turtle protection laws, and fishing trawlers were not allowed to operate within designated areas where turtles mated and nested. In the East Coast of Peninsular Malaysia, the turtle nesting season occurred between April and October while the shrimp trawling season was from November to February. Along the west coast of Peninsular Malaysia, there was no shrimp trawling except along the Perak coast near Sigari which was a very limited area. Sarawak had been carrying out research on marine turtles particularly around the Turtle Islands since the 1930s. Studies done over the last 20 years had revealed a cyclical pattern of a good year followed by a poor year. Conservation efforts in Sarawak had begun in the early 1950s. It had been established by DNA fingerprinting that green turtles in Sarawak were distinct populations that did not mix with those of other countries implying that the conservation programme had managed to contribute to the survival of the turtle population. Moreover, the active enforcement of fishery laws by the Department of Fisheries had successfully kept the trawlers away from the coastal and Turtle Island waters and the existing trawling operations had been successfully kept away from the migration routes of these turtles. While recognizing that the use of TEDs was a step in contributing to the conservation of turtles, Malaysia considered that it was just one of the many accepted methods for the conservation of turtles. The use of TED alone could not absolutely ensure the survival of turtles.

3.8. Malaysia had a comprehensive legal framework on the conservation and management of marine turtles which were under the jurisdiction of 13 individual states. The states' legislation on turtle protection had been enacted in 1932 and prohibited, inter alia, the capture, killing, injuring, possession or sale of turtles, collection of eggs, disturbing turtles during laying eggs, and provided for the establishment of turtle sanctuaries. Subsidiary legislation had also been enacted, such as the Customs (Prohibition of Export/Import) Orders of 1988, enforced specifically to ban the exports and imports of turtle eggs to and from all countries. At the federal level, the Fisheries Act 1985 prohibited the capture of marine turtles by any type of fishing methods. Enforcement of existing legislation within 2 nautical miles of marine parks would provide protection to nesting turtles in the area. An Order made under the Act in 1990 prohibited the use of driftnet with mesh sizes exceeding 25.4 cm in order to reduce turtle mortality.

3.9. Olive ridley, leatherback, hawksbill and green turtle were the four species of sea turtles found in Malaysia; the last three of them were at issue in this dispute. Malaysia had always been actively engaged in turtle conservation programmes aiming at reducing mortalities both on nesting beaches and at sea. They had been in place for more than 20 years and efforts were continuously undertaken to develop more effective conservation measures and improve upon existing ones. Organizations actively involved in the conservation of turtles included the Fisheries Department, local universities, NGOs (e.g. WWF and the Malaysian Society of Marine Sciences) and corporate bodies (as sponsors of conservation projects).¹⁶ The conservation programmes included the following:

(a) Protection of turtle eggs by incubation programmes, involving in situ methods or protected beach hatcheries, and banning the commercial harvest and sale of eggs in certain areas (e.g. Sabah Turtle Islands and leatherbacks eggs in Terengganu). In other areas where the nesting beaches were extensive, turtle egg collection was licensed to the local inhabitants from whom the eggs were purchased for incubation in protected beach hatcheries. Efforts were continuously made to increase the proportion of eggs bought from licensed egg collectors for incubation. In Pulau Redang, where the nesting beaches were less extensive, in situ egg incubation was carried out by the Fisheries Department and turtle conservation biologists from the local university; this conservation programme aimed at incubating at least 70 per cent of the total egg production in the island, which was the most important nesting site for green turtles in Peninsular Malaysia.¹⁷ Another example was seen in the Sarawak green turtle population, whose annual nesting density had declined from 1945 to the early 1960s, period during which fish and shrimp trawling did not exist. The decline had been attributed to over-exploitation of eggs. In the last thirty years (1960s to 1990s), conservation programmes in Sarawak concentrating on egg protection, at the exclusion of TEDs, allowed the nesting population to remain constant within the range of annual fluctuation characteristic with green turtle population. Therefore, in the case of the Sarawak population of green turtles, even in the absence of TEDs, the population had remained constant over a long period and had been sustained.

(b) Establishment of turtle sanctuaries/state parks in recognized turtle nesting areas to protect the nesting sites. This ensured that commercial development did not encroach upon the nesting beaches. Therefore the nesting beaches could remain pristine and not be subject to detrimental factors like beach lighting which adversely affected nesting turtles and hatchling orientation to the sea. The Turtle Island of Sabah was constituted as a State Park in 1984, after the Sabah State Government had compulsorily acquired the islands from private ownership. In 1988, after 22 years of 100 per cent egg protection, the nesting population of green turtles showed a reversal in its declining trend; nesting density reached a record in 1991. Annual nesting of 8,084 sea turtles in the period 1990-94 represented a threefold increase over annual nesting of 2,633 sea turtles recorded in the 1982-86 period. The Sabah Parks of Malaysia won the 1997 J. Paul Getty Wildlife Conservation Award for having released more than 4 million turtle hatchlings into the wild over the last 15 years and helped designate, together with the Philippines, the nine islands of the Turtle Islands Protected Heritage (TIPHA) as a single unit. This showed that a dedicated conservation programme concentrating mainly on egg protection could result in population recovery, and that Malaysia's domestic legislation was comprehensive enough for the protection and conservation of turtles, and further sought to prevent the national and international trade of sea turtles.

(c) Measures to protect sea turtles in their marine habitat during the nesting season. In marine parks where key nesting sites of green turtles occurred, fishing activities within a radius of two nautical miles surrounding the island or island groups was prohibited. Malaysian scientists had discovered that these measures were effective in protecting the turtles during the internesting periods since the turtles had been found not to venture beyond one nautical mile of the shoreline.¹⁸ In 1991, an offshore sanctuary had been established in the Rantau Abang area - gazetted as Rantau Abang Fisheries Prohibited Area - to provide protection to leatherback turtles. Its boundaries had been determined by a scientific study using radio-telemetry techniques and conducted by local scientists in collaboration with US counterparts.¹⁹ Fishing gear known to be detrimental to turtles, such as driftnets, trawlnets and fish traps had been banned in the restricted zone during the nesting season.²⁰ Finally, the use of large mesh driftnets along coastal areas had been banned across the nation to reduce the mortality of turtles in these areas.

(d) Because sea turtles were highly migratory going beyond the national boundaries of countries, Malaysia recognized that an effective management and conservation of turtles required the concerted and combined efforts of countries in the region concerned. Malaysia had cooperated with the Philippines in the launching of the Turtle Island Heritage Protected Area in 1996, to develop uniform conservation measures for the turtles on the islands. The same year, Malaysia hosted the first South East Asia Fisheries Development Centre (SEAFDEC) workshop on marine turtle research and conservation. Bilateral and regional turtle conservation programmes were currently being developed through the ASEAN Working Group for Nature Conservation. Malaysia was also a party to CITES and, accordingly, regulated strictly the import and export of marine turtles and their products. Its domestic legislation made an offence for any person to fish for, disturb, harass, catch or take any turtle. The law also applied to the Exclusive Economic Zone.

(e) Research programmes were undertaken by local universities and the Fisheries Department to provide scientific information for further development and enhancement of conservation programmes. For example, after the discovery that high incubation temperatures of beach hatcheries for leatherback turtles were producing biased sex ratios, the conservation programme had been modified and adjusted to incubate a proportion of the eggs under cooler temperatures so as to produce a balanced sex ratio output. The radio-tracking on leatherback turtles had been another study translated into conservation action, resulting in the establishment of the off-shore sanctuary in Rantau Abang.²¹ To date, over 200 papers had been written on Malaysian sea turtles.²² In 1984, Universiti Pertanian Malaysia, Kuala Terengganu (now Universiti Kolej, Universiti Putra Malaysia, Terengganu) had initiated a sea turtle research and conservation programme which had expanded to cover all aspects of the biology and ecology of sea turtles. Conservation and educational projects were also conducted. For example, the University maintained a longterm green and hawksbill turtle conservation project in Chagar Hutang, the major nesting beach for green turtles in Pulau Redang, Terengganu.²³ The conservation project protected turtle eggs through in situ incubation, and also included a tagging and nesting research programme.

(f) Public educational programmes on sea turtles. They included travelling exhibitions, production of educational kits, brochures and videos, as well as turtle camps for children. For instance, a turtle camp called "Kem Si Penyu" was organized: children from the Redang Village were brought to the beach to watch nesting turtles, listen to turtle stories, and attend fun art sessions facilitated by local artists. It was hoped that the children would develop a feeling of love for turtles.²⁴

3.10. Malaysia considered that its commitment was evident by the actions taken both domestically and internationally in order to protect these endangered species from extinction. Conservation efforts were better achieved through bilateral or multilateral agreements rather than resorting to trade sanctions under the WTO.

To Continue With Chapter 3.11

¹ Codified at 16 U.S.C. 1537 note, amending the Endangered Species Act of 1973, 16 U.S.C. � 1531 et seq.

² 61 Fed. Reg. 17342, (19 April 1996).

³ National Research Council, National Academy of Sciences, (1990), Decline of the Sea Turtles: Causes and Prevention, Washington D.C.

⁴ Tow time is the interval from trawl doors entering the water to trawl doors being removed from the water. Tow times were restricted to 90 minutes or less, period of time which is determined to result in fewer drowning of sea turtles in shrimp trawls. Tow time restrictions were an alternative to TEDs in some areas and for some categories of shrimp trawlers.

⁵ 52 Fed. Reg. 24244 (29 June 1987).

⁶ Section 609 of Public Law 101-102, codified at 16 United States Code (U.S.C.) � 1537.

⁷ 56 Federal Register 1051 (10 January 1991).

⁸ 58 Federal Register 9015 (18 February 1993).

⁹ In particular, vessels whose nets are retrieved exclusively by manual rather than mechanical means are not required to use TEDs, because it is considered that the lack of a mechanical retrieval system necessarily restricts tow times to a short duration, thereby limiting the threats of incidental drowning of sea turtles.

¹⁰ Earth Island Institute v. Warren Christopher, 913 F. supp. 559 (CIT 1995).

¹¹ Earth Island Institute v. Warren Christopher, 922 Fed. Supp. 616 (CIT 1996).

¹² 61 Fed. Reg. 17342 (19 April 1996).

¹³ Earth Island Institute v. Warren Christopher, 942 Fed. Supp. 597 (CIT 1996). The US Administration has appealed this ruling to the US Court of Appeals for the Federal Circuit.

¹⁴ Earth Island Institute v. Warren Christopher, 948 Fed. Supp. 1062 (CIT 1996).

¹⁵ Ordered pursuant to Orissa Government Notification No. 7FY-SE(H)49/95-60-FARD, dated 1 January 1996.

¹⁶ E.H. Chan and H.C. Liew, (1991), Sea Turtles, The State of Nature Conservation in Malaysia, Malaysian Nature Society (R. Kiew ed.), pp. 120-134.

¹⁷ E.H. Chan and H.C. Liew, (1995), In-situ Incubation of Green Turtle Eggs in Pulau Redang, Malaysia: Hope After Decades of Egg Exploitation, Proceedings of the International Congress of Chelonian Conservation, 6-10 July 1995, Gonfaron, France, pp. 68-71.

¹⁸ H.C. Liew and E.H. Chan, (1992), Biotelemetry of Green Turtles (Chelonia Mydas) in Pulau Redang, Malaysia, During the Internesting Period, Biotelemetry XII, 31 August-5 September, pp. 157-163.

¹⁹ E.H. Chan, S.A. Eckert, H.C. Liew and K.L. Eckert, (1990), Locating the Internesting Habitats of Leatherback sea turtles (Dermochelys Coriacea) in Malaysian Waters Using Radio Telemetry, Biotelemetry XI, 29 August-4 September, Japan, pp. 133-138.

²⁰ E.H. Chan and H.C. Liew, (1995), An Offshore Sanctuary for the Leatherback Turtles in Rantau Abang, Malaysia, in J.I. Richardson and T.H. Richardson (compilers), Proceedings of the 12th Annual Workshop on Sea Turtle Biology and Conservation, NOAA Technical Memo. NMFS-SEFSC-361, pp. 18-20.

²¹ Ibid.

²² E.H. Chan (compiler), (1996), A Bibliography of Malaysian Sea Turtles and Terrapins, SEATRU (Sea Turtle Research Unit), Universiti Kolej, Universiti Putra Malaysia, Terengganu.

²³ E.H. Chan and H.C. Liew, (1995), In-situ Incubation of Green Turtle Eggs in Pulau Redang, Malaysia: Hope After Decades of Egg Exploitation, Proceedings of the International Congress of Chelonian Conservation, 6-10 July 1995, Gonfaron, France, pp. 68-71.

²⁴ The range of research and conservation projects conducted in the Universiti Kolej is described on the SEATRU website at URL< http://www.upmt.edu.my/seatru/>.