3.11. Pakistan submitted that it shared the United States' concerns over the plight of sea turtles. However, the US requirement that TEDs be installed on Pakistan's commercial fishing vessels not only violated US obligations under the GATT, but was completely unnecessary given Pakistan's long history of protecting endangered species, including sea turtles. Pakistan stated that its culture embraced a traditional belief that it was sinful to kill sea turtles. In 1950, Pakistan had passed legislation to protect sea turtles by enacting the Imports and Exports (Control) Act (amended on 13 August 1996), which made it illegal to export protected species, including sea turtles and sea turtle by-products from Pakistan. In addition to laws protecting sea turtles, various public and private organizations in Pakistan were engaged in sea turtle protection programmes. Since 1979, Pakistan's Sindh Wildlife Department was engaged in sea turtle conservation programmes in conjunction with WWF and IUCN. The main objective of this programme was to protect sea turtles from extinction. In this regard, this programme had established enclosures on beaches to protect sea turtles and their eggs from predators and poachers. The Sindh Wildlife Department had also engaged in turtle conservation training programmes designed to teach the public about the importance of protecting sea turtles. This programme had proven to be extremely effective in preserving and protecting sea turtles. It was estimated that between October 1979 and December 1995 more than 1.5 million sea turtle eggs had been protected and thousands of hatchlings had been released safely to the sea. The government of Pakistan was also instrumental in ensuring that sea turtle protection laws were enforced.

3.12. Pakistan considered that the protection of sea turtles was a challenging task tackled by a large number of countries in a variety of ways. Pakistan did not accept the US assertion that the use of TEDs was the only way to prevent the extinction of sea turtles and considered the US action to be an unacceptable interference in policies within Pakistan's sovereign jurisdiction. Programmes such as the ones undertaken by Pakistan were also essential in furthering the goal of sea turtle protection. Pakistan argued 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, extra-territorial measures such as the one imposed by Section 609.

3.13. Thailand submitted that it had a long history of taking action to protect the four species of sea turtles (leatherback, green, hawksbill and olive ridley) within its jurisdiction. The Thai culture embraced a traditional belief that it was sinful to kill sea turtles. As early as 1947, the Fisheries Act had been passed prohibiting the catching, harvesting or harming of any sea turtle. This Act also specified that any accidentally caught turtles had to be released into the sea immediately. Further, the Act prohibited the collection or harm of sea turtle eggs on any beach in Thailand. In 1980, pursuant to authority granted under the Export and Import Act of 1979, the Ministry of Commerce had prohibited the exportation of the carcasses of six species of turtles, including the four species of sea turtles present in Thai waters, unless an export license was granted. In 1981, Thailand had further prohibited exports of the five species of live sea turtles (the four previously mentioned, plus olive ridley), unless an export license was granted. So far, no export licenses had been granted. Furthermore, in 1993 the Department of Fisheries had enacted a decree that imposed a prohibition on the importation of protected species of sea turtles.

3.14. In 1983, Thailand had ratified CITES, pursuant to which it had passed the Wildlife Preservation and Protection Act in 1992. Five species of sea turtles were among the protected wild animals listed in this legislation. The legislation prohibited the importation, exportation, and transitory movement of listed wild animals, or carcasses thereof, and subjected violators to severe penalties, including imprisonment and monetary fines. Three branches of the Government of Thailand were responsible for sea turtle restoration programmes: the Department of Fisheries, the Department of Forestry, and the Royal Thai Navy. The Department of Fisheries administered the Phuket Marine Biological Center, which run several conservation programmes. Sea turtle eggs were collected from nesting beaches and were taken to the center to be incubated. Additional sea turtle egg collection programmes were run by 5 Marine Fisheries Development Centers and 13 Coastal Aquaculture Development Centers within the Department of Fisheries. The goal of the restoration programmes administered by these institutions was to cultivate and release 5,000 baby sea turtles a year. In addition to these legislative initiatives, several conservation programmes had been adopted in Thailand. Since 1979, Her Royal Highness Queen Sirikit personally patronized the "Queen's Project on Sea Turtle Conservation". Her Majesty's patronage included the donation of private property to the Thai Department of Fisheries for use as a research station for sea turtle conservation. There were also several private conservation initiatives, including programmes administered by the Magic Eyes Foundation and the Siam Commercial Bank, which raised money to support efforts to rear and release baby sea turtles.

3.15. Thailand said it had also engaged in many educational projects aimed at protecting the natural habitat of sea turtles. Further, programmes involving hatching, nursing and releasing sea turtles to the sea had been initiated. In addition, approximately 20 research studies had been conducted since 1973 in order to learn more about indigenous sea turtles and to assist in formulation of policies to ensure their survival.²⁵ Significantly, during the course of a night trawled monitoring survey conducted from 1967 to 1996, there had been no observed incidental sea turtle kills in connection with shrimping.²⁶ The reason for this was that sea turtles inhabited coral reefs and sea grass beds within three kilometres of the shoreline where shrimp trawling was prohibited. While there had been a general decline in the population of nesting sea turtles in Thailand from 1950 to 1985, Thailand's conservation programme had ensured the survival of a sufficient stock of sea turtles to protect against their extinction. The measures that had achieved this result included a combination of strong protection for nesting beaches and the incubation and release programme. Thus, Thailand had found that measures other than the use of TEDs could be made effective in preserving sea turtles in Thai waters.

3.16. At the regional level, there had also been efforts initiated within ASEAN to reach a multilateral agreement on sea turtle conservation efforts. During the fifth meeting of the ASEAN Sectoral Working Group on Fisheries, held on 13-14 March 1997, Thailand had suggested that an agreement be negotiated within ASEAN with respect to sea turtles. The meeting had agreed to authorize Thailand to draft a Memorandum of Understanding ("MOU") setting forth the steps that could be taken jointly for the protection and conservation of sea turtles. In the Special Senior Officials meeting of the ASEAN, in May 1997, Ministers on Agriculture and Forestry had approved a draft MOU submitted by Thailand for consideration and agreed that the MOU would be finalized at the forthcoming meeting of the ASEAN Ministers on Agriculture and Forestry, in September 1997. The MOU committed its signatories to the protection, conservation, replenishment and recovery of sea turtles and of their habitats based upon the best available scientific evidence. The MOU also established a Technical Expert Working Group to prepare an ASEAN programme for Sea Turtle Conservation and Protection, coordinated by Malaysia. It also established mutual recognition of each nation's laws and regulations on this subject and called for harmonization of such laws and for the sympathetic consideration of such new laws that might be proposed by the working group.

3.17. The United States explained that since the 1970s, all species of sea turtles that occurred in waters subject to US jurisdiction had been listed as either endangered or threatened under the US Endangered Species Act of 1973 ("ESA"). In addition to requiring the use of TEDs since 1990, the United States had taken a wide variety of other steps to halt the decline and aid in the recovery of sea turtles. The US Federal Government had acquired some high density nesting beaches of loggerhead turtles and had placed them within the Archie Carr National Wildlife Refuge in Florida. One of the two largest loggerhead rookeries in the world was concentrated along the Atlantic beaches of central and southern Florida. A number of state and federal laws had been passed to protect the beach and dune habitat of nesting sea turtles, including the Coastal Barrier Resources Act of 1982 (Federal), Coastal Areas Management Act of 1974 (North Carolina), Beachfront Management Act of 1990 (South Carolina), Shore Assistance Act of 1979 (Georgia) and Coastal Zone Protection Act of 1985 (Florida). Progress was also being made by many states, counties and towns in preventing disorientation and misorientation of hatchlings caused by beach lighting. Finally, the United States had established and maintained the world's most long-standing beach management programme to reduce out-of-balance depredation and destruction of nests by natural predators, such as raccoons and feral predators.

3.18. The United States had also actively supported international efforts to protect sea turtles. The United States was a party to CITES and had, accordingly, prohibited international trade in sea turtles, their eggs, parts and products. The United States had also funded training for sea turtle researchers and beach protection efforts in such countries as Costa Rica, El Salvador and Mexico. Since 1978, the United States worked cooperatively with Mexico to protect the beach at Rancho Nuevo, Mexico, the principal nesting beach of Kemp's ridley sea turtles, and had provided financial support for the protection of other nesting beaches throughout Mexico. Since the early 1990s, the United States also gave financial assistance to trainees from Latin American who attended the Caribbean Conservation Corporation�s sea turtle training programme in Tortuguero, Costa Rica. The United States had provided significant financial support for the sea turtle conservation programmes of the IUCN (World Conservation Union) and for a wide range of comparable initiatives. Some of these efforts had begun to yield encouraging results. For loggerhead sea turtles, for instance, the combined strategy of requiring TEDs and protecting nesting beaches had led to a noticeable increase in at least some subpopulations. For instance, adult loggerheads of the South Florida Subpopulation (the largest loggerhead nesting assemblage in the Atlantic and one of the two largest in the world) was showing significant increases in recent years, indicating that the population was recovering.²⁷ The US-Mexican joint effort undertaken at Rancho Nuevo had led to encouraging increases in the number of Kemp�s ridley nests.²⁸

3.19. The United States considered that the incidental mortality of sea turtles in shrimp trawl nets constituted the largest cause of human-induced sea turtle mortality. Other measures to protect sea turtles did not address this problem and had not succeeded on their own. The United States Government required shrimp trawl vessels that operated in waters subject to US jurisdiction in which there was a likelihood of intercepting sea turtles to use TEDs at all times. Any effective programme to allow the recovery of these endangered species had to include the required use of TEDs by shrimp trawl vessels that operated in areas and at times where there was a likelihood of intercepting sea turtles. Other measures to protect sea turtles, including the protection of nesting beaches, bans on the harvest of sea turtle eggs, and "headstarting"²⁹ baby sea turtles, had proven ineffective in increasing the number of large juvenile and adult sea turtles. Increasing the numbers of large juvenile and adult sea turtles was necessary because they were responsible for the greatest contribution to the growth of sea turtle populations - the reproductive value³⁰ of a large juvenile or adult sea turtle was 584 times that of a hatchling sea turtle.³¹ Of the measures available to protect sea turtles, only the required use of TEDs effectively protected large juvenile and adult sea turtles, and was, therefore, of exponentially greater value to sea turtle populations overall. Even if the other measures could achieve a 100 per cent survival rate for baby sea turtles in their first year, scientific models showed that they were unlikely to have a significant effect on sea turtle populations due to the extremely high mortality of sea turtles before they reached breeding age³²; scientists currently estimated that it took between 1,000 and 10,000 eggs to produce a single adult female.

3.20. The United States argued that, while the measures adopted by the complainants to protect sea turtles were laudable (although, with the exception of Thailand, none required the use of TEDs), they had not prevented drastic declines in sea turtle populations in the waters of these countries. For example, the leatherback sea turtle population in Terengganu, Malaysia had experienced a 95 per cent decline in the number of nesting turtles since 1956.³³ The number of eggs laid by green, olive ridley and hawksbill sea turtles in Terengganu had also declined an estimated 52-85 per cent since the late 1950s.³⁴ Sea turtle populations in the Gulf of Thailand had been seriously depleted.³⁵ Comparable declines throughout that region of the world were well-documented.³⁶ As explained above, even if the other measures taken by the complainants to protect sea turtles were effectively enforced³⁷, without the required use of TEDs, they would be insufficient to allow sea turtle populations in that region of the world to recover. Actually, none of these measures had prevented the drastic declines of sea turtles in the complainants' waters. Their conservation measures had not been shown to have any significant effect on the number of sea turtles that survived to adulthood and reproduced.

3.21. The United States submitted that scientists recognized the limitations of measures such as nest protection and "head-starting" that only protected sea turtle eggs and hatchlings. A recent study commissioned by Thailand's Office of Natural Resource Conservation noted the "generally accepted scientific opinion that head-starting is not a valid conservation method (at the very least, its value has yet to be demonstrated)".³⁸ Similarly, IUCN (World Conservation Union) found that the "conservation of eggs and hatchlings, without concurrent conservation of the older life stages, may be of limited value".³⁹ Finally, Dr. Deborah Crouse, a conservation biologist with special expertise in sea turtle biology, had found as the result of her doctoral research on loggerhead sea turtles that "nest protection, by itself, was not sufficient to stop the decline of threatened loggerhead sea turtle populations, much less to recover them while human-induced mortality (due to drowning in shrimp trawls) of juveniles and adult turtles continued unabated".⁴⁰

3.22. According to the United States, such measures were of some value when taken in conjunction with other measures that protected older sea turtles, such as the required use of TEDs. However, certain nations, and in particular India, Malaysia and Pakistan, had not yet adopted effective measures to protect older sea turtles. One reason the governments maintained such measures could be that the measures protecting eggs and hatchlings appeared, on first blush, to produce impressive results. Consider, for example, the hatchery programme that Malaysia maintained. According to a scientific analysis of this programme: "between 1961 and 1986, an average of about 33,000 eggs were incubated each year with a 50 per cent rate of hatching success. This seems like a large number of hatchlings. But, if current estimates are correct that 1,000 to 10,000 eggs are needed to produce a single adult female, then the hatchery programme would only have produced about 3 to 34 new adult females each year. Considering that 33,000 eggs represents fewer than 2 per cent of the eggs laid annually in the late 1950s, perhaps we should not be too surprised to note a population decline of more than 98 per cent".⁴¹ The example of Malaysia's programme showed the inherent flaw in any sea turtle conservation programme that relied solely on measures to protect eggs and hatchlings. Where older sea turtles were subject to high rates of mortality, including in shrimp trawl fisheries, the protection of eggs and hatchlings alone was very unlikely to allow decimated populations of sea turtles to recover. Indeed, "it is not clear whether egg protection efforts will ultimately prevent marine turtle extinction".⁴²

3.23. The United States asserted that prohibitions on the intentional killing of sea turtles, which the complainants had put in place, had not succeeded. These measures, which were in place for many years, had not prevented the decimation of sea turtle populations in South Asia or permitted their recovery, even in areas where the prohibitions had been effectively enforced. For example, a recent report on The Status of Marine Turtles in Thailand noted that: "The populations of green and hawksbill turtles [nesting at Khram Island in the Gulf of Thailand] have declined significantly, even though their nesting areas are controlled by the Thai navy since [a] long time ago. As the area is completely protected, very few fishermen or poachers can enter the island. Thus the reduction of the number of sea turtle nests [is] caused by heavy fishing activities in the Gulf areas".⁴³ In short, despite complainants' claims to the contrary, most populations of sea turtles that spent at least some portion of their lives in waters subject to their jurisdiction were still declining, and shrimp trawl fishing remained a primary (and easily avoidable) reason for these declines.⁴⁴ While the complainants reported that they had taken some measures to protect sea turtles, "the efforts of these protection measures will be negated and wasted if young turtles are released into waters where trawlers operate without TEDs. In such waters, many will be captured and drowned each year and few will survive the two decades or more they will require to mature and reproduce".⁴⁵

3.24. Regarding Malaysia, the United States argued that, whatever measures Malaysia had taken, all four species were endangered in Malaysia.⁴⁶ Moreover, Malaysia neglected to mention the populations of sea turtles that nested in Terengganu and elsewhere in Malaysia, particularly the populations of leatherback sea turtles. Numerous scientific reports documented the disastrous declines of these sea turtles. Calculated on the basis of egg production data supplied by the Terengganu State Fisheries department, the population of leatherbacks nesting there had suffered "a greater than 95 per cent decline in nesting turtles over 40 years since 1956".⁴⁷ In terms of the number of egg clutches laid by female leatherbacks in Terengganu, the decline was just as precipitous: "In the late 1950s, an estimated 2,000 female leatherbacks laid about 10,000 egg clutches annually. Since then, the population has declined steadily and catastrophically. During the 1989 season, fewer than 200 egg clutches were laid".⁴⁸ The most recent available data, supplied in the Country Report for Malaysia cited above, confirmed that these trends had continued. The report noted that, in the 1950's, this population had been celebrated as the only remaining leatherback population of importance in the world". However, the numbers of these sea turtles "have declined significantly with present nestings representing only 2 per cent of numbers then ... The Terengganu leatherback population may be lost within a decade or two".⁴⁹ Unfortunately, the same trends were present in other species of sea turtles that nested in Terengganu. The olive ridleys that nested there had declined from "possibly thousands annually" to "approximately 20 per year in the early 1990s".⁵⁰ Moreover, the Country Report for Malaysia cited above found that the population trends of all the major rookeries of Malaysia "indicated a general declining trend, some to near extinction", including those in Sarawak.⁵¹ The only rookeries reported as not experiencing these declines were those at the Sabah Turtle Islands.

3.25. Third, even the green sea turtle populations of both Sarawak and Sabah were in danger, despite Malaysia's claims to the contrary. Placed in historical context, these areas had suffered a massive reduction in green sea turtle populations: the population of green sea turtles in the Sarawak Turtle Islands had suffered a "greater than 90 per cent decline in egg production", while green sea turtles in the Sabah Turtle Islands had suffered a "50 per cent decline in egg production".⁵² This demonstrated what sea turtle biologists were saying for many years, i.e. that the establishment of sanctuaries in limited areas would not protect species that migrated widely. Finally, Malaysia's claims of increases in certain other nesting populations of sea turtles in Sabah and Sarawak were themselves of uncertain value. Malaysia reported these increases only very recently, and these reports covered only a short timeframe. It was not surprising that increases in nestings might be occurring in these limited areas, given that Malaysia had allowed an almost total harvest of sea turtle eggs there until quite recently.⁵³ Moreover, as noted above, scientists estimated that it took between 1,000 to 10,000 eggs to produce a single nesting female, the reported increase in the number of eggs being laid in Sabah and Sarawak might yield very few mature sea turtles, particularly if mature sea turtles remained subject to incidental mortality in shrimp fisheries in Malaysia. Finally, Dr. Crouse pointed out that the reported increases in egg production in Sabah and Sarawak might be nothing more than an increase in the number of eggs placed in hatcheries as a result of Malaysia's headstarting programme, rather than any increase in the number of sea turtle eggs overall in those areas.⁵⁴ A document produced by Malaysia examined the ineffectiveness of sea turtle hatcheries and headstarting, and criticized Malaysia's sea turtle conservation programme for relying almost exclusively on hatcheries.⁵⁵

3.26. Regarding Thailand, the United States argued that scientific evidence did not show that Thailand had ensured "the survival of a sufficient stock of sea turtles to protect against extinction". The study commissioned by Thailand's Office of Natural Resource Conservation reported that all populations of sea turtles nesting in Thailand "are seriously reduced from previous levels".⁵⁶ This report merely confirmed earlier observations. A 1995 analysis of the Global Overview of the Status of Marine Turtles found, for example, that: "[t]he stock [of olive ridleys] in the Andaman Sea of Thailand has been decimated to only tens of females nesting annually. ... A similar decimation of the nesting population [of leatherbacks] of the Andaman Sea area of western Thailand apparently occurred".⁵⁷ Similarly, the report on the Status of Marine Turtles in Thailand cited above not only determined that "populations of the sea turtles in Thailand have been found drastically declined" but also that "the loggerhead turtle is believed [as] being extinct from Thai waters".⁵⁸ Another document submitted by Thailand revealed that once five species of sea turtles nested in Thailand's waters, but today only four nested there.⁵⁹ Thailand could only point to one small area, Khram Island, in which sea turtles were supposedly well protected; but a document submitted by Thailand showed that sea turtle nestings on Khram Island were decreasing, while shrimp trawling in the area had in fact increased.⁶⁰ In the face of such evidence, the United States questioned how Thailand could maintain that, prior to its adoption of a TEDs programme in 1996, sea turtles found in the waters of Thailand were protected from extinction. Regarding the 5'000 baby sea turtles released each year by Thailand, the United States said that, due to the recognized and admitted mortality rate of baby sea turtles, this translated into only 10 sea turtles each year that might live to reach breeding age. Meanwhile, tens of thousands of mature sea turtles died every year in shrimp trawl nets. This explained why the United States disagreed with Thailand's conclusion that a nation "can ensure the survival of a sufficient stock of sea turtles to protect against their extinction" through the adoption of such measures without requiring the use of TEDs.

3.27. India disagreed with the US assertion that conservation measures other than TEDs were insufficient on their own to allow endangered sea turtles to recover. India had demonstrated that in the case of Gahirmatha, in the State of Orissa, complete protection of eggs along with prevention of exploitation of adults from the breeding area had led to the stabilization of the olive ridley sea turtle population, and thus its measures were "sufficient" to meet the objectives of conservation and protection of endangered sea turtles. India agreed with the United States that the programmes to protect eggs and hatchlings were, by themselves, insufficient. This was the reason why India had taken leading steps for the protection of the mass nesting areas which meant protection of eggs, hatchlings and adults along with protection of breeding grounds which meant protection of hatchlings, juveniles, sub-adults and adults. This had resulted in the stabilization of the sea turtle population at Gahirmatha as already demonstrated. Similarly, India shared the view that "conservation of eggs and hatchlings, without concurrent conservation of the older life stages, may be of limited value." However, the model of Dr. Deborah Crouse referred to by the United States had been questioned by another leading scientist from the United States who wrote that "eggs are important and cannot be ignored in recovery plans", and advocated "full protection in all life stages".⁶¹

3.28. The claim that certain nations, in particular India, had not yet adopted effective measures to protect older sea turtles was not correct. As already mentioned, India's successful conservation programmes had eliminated commercial exploitation and trade of adult hawksbill, green and olive ridley sea turtles and there was no documented evidence of any commercial exploitation or trade of leatherback and loggerhead sea turtles. India had an excellent record of sea turtle protection. Several international forums had acknowledged India�s record of preservation of sea turtles.⁶² The Director of the US NMFS had written a letter in April 1997 to the Chief Minister of the Government of the State of Orissa to compliment him for his role in conserving the Bhitarkanika sanctuary and specifically the olive ridley population of Orissa, and to express appreciation for the leadership that India had taken in implementing the successful conservation strategy of sea turtles. The assertion that prohibitions of the intentional killing of sea turtles had not succeeded was not applicable to India. As already mentioned, prohibition of the earlier occurrence of intentional killing and harvesting of reproductively mature individuals to the tune of 50,000 to 80,000 per season in Orissa had led to the stabilization of the world's largest olive ridley population, and India's action had in fact led to the effective protection and conservation of this endangered species of sea turtles. In addition to the long-term programme described above, India added that its 8,000 kilometres coastline was protected by law and an area up to 500 meters from beach was virgin land. The Government of India had not allowed this area to be converted to tourist resorts which would disturb sea turtle populations. There were no water sports which caused considerable mauling of turtles in other parts of the world, the sea was not polluted and relatively free of debris which caused damage to sea turtles populations. The coastal zone regulation did not allow fishing up to 5 kilometres from beach and this had been extended up to 20 kilometres in turtle sensitive areas. Awareness programmes, workshops at national, regional and international levels had been organized to coordinate efforts to protect sea turtles.

3.29. Malaysia responded that the claim by the United States that measures to protect older sea turtles were of exponentially greater value to sea turtle populations overall was based purely on empirical data which had been generated from a population model, while the situation in Malaysia, which had showed that these programmes to protect eggs had been sufficient to bring about population recovery, was based on hard data collected over almost 30 years of constant monitoring. Malaysia maintained that the use of TEDs had not been found to be the sole measure necessary for the survival and protection of sea turtles. In the case of the United States, it could have been necessary to use TEDs in tandem with other measures since rates of incidental captures had been found to be exceptionally high. With respect to the alleged dramatic decline of sea turtle populations in Malaysia and other South East Asian countries, Malaysia noted that more recent publications than those produced by the United States showed population recoveries in Malaysia, e.g. green and hawksbill turtles of Sabah Turtle Islands⁶³: in 1988, after 22 years of egg protection, the nesting population showed a reversal in its declining trends and nesting density reached a record high in 1991. Annual nestings of 8,084 in the period 1990-94 represented a threefold increase over annual nestings of 2,633 recorded in the 1982-86 period.⁶⁴ Malaysia further noted that while it was true that turtle populations in Terengganu had declined, it had to be borne in mind that "comparable declines throughout the region of the world were well-documented". Since the time when declines in Terengganu had been highlighted by local sea turtle biologists, the Terengganu State Government had intensified turtle conservation efforts, and was now subscribing to 100 per cent protection of leatherback eggs. However, due to the slow maturation time of sea turtles, the intensification of conservation programmes in Terengganu would not become apparent until about 20 years. Therefore, it was erroneous and premature to say that Malaysia's conservation programmes were not effective. In the Sabah Turtle Islands, for instance, 100 per cent egg protection had started in the 1970s and it was only in 1988 that population recovery began to emerge. Malaysia maintained that the prohibition on the intentional and direct harvest of sea turtles in Malaysia had prevented the total collapse of sea turtle populations.

3.30. Malaysia stressed that the United States had to acknowledge the scientific fact that different nesting populations of a particular species were distinct from each other and could not be treated uniformly. This was the reason why sea turtle conservationists stressed that each nesting population had to be protected in its own right. If one population was decimated, it could not be augmented by individuals from another nesting population. Therefore, when considering the marine turtles of Malaysia, it was appropriate to view the different populations separately and not just consider all the four species uniformly. The conditions of the various sea turtle populations in Malaysia could not be treated or described in an uniform manner. Each nesting population was distinct and subject to different conditions. Firstly, the green and hawksbill population in the Sabah Turtle Islands had recovered to levels which surpassed historical records. This recovery was not short-lived, but had been sustained since 1988, when a reversal in the declining trend had first been manifested. The increases in the populations were valid and definitive data was available. The speculative view of Dr. Crouse that increases in egg production might be nothing more than an increase in the number of eggs placed in hatcheries was without scientific merit and without reference to the data which had been vigilantly collected by the staff of Sabah Park. The recovery of the Sabah Turtle Island sea turtle population was based on the number of nestings per year and not on the number of eggs collected. Secondly, the green turtle population of the Sarawak Turtle Islands had stabilized over the last 30 years. However, comparing current nesting levels with historical records showed a decline which had occurred in the 1950s, i.e. before the introduction of trawling in Sarawak. This decline had been attributed to intensive egg harvest and direct capture of turtles. Thirdly, the green turtle population of Redang Island had demonstrated a steady trend over the last ten years; no historical data was available for this population. Fourthly, the leatherback population in Terengganu had declined precipitously, due to intense egg harvest, the intensification of the fishing industry and the high seas driftnet fishery. Fifthly, there was no historical record indicating that olive ridleys nested in the thousands in Malaysia; the precipitous decline of olive ridley nesting in Terengganu, as alleged by the United States, was unfouned. As to the leatherback, the causes of its decline had been the rapid development of the fishing industry in Terengganu in the early 1970s, the introduction of Japanese high seas squid drift net fishery of the North Pacific in 1987, and commercial egg collection.⁶⁵ Therefore, except for the case of leatherback, sea turtles in Malaysia had either increased or stabilized for an extended period of time, without using TEDs. The US conclusion that all sea turtles in Malaysia were in dire conditions was erroneous and disregarded data available on the Malaysian sea turtle populations.

3.31. Thailand replied that the sources relied upon by the United States in paragraph 3.26 did not show that shrimp trawling was the cause of any perceived decline in sea turtle population. In paragraphs 3.56, 3.57 and 3.75, Thailand provided detailed arguments which refuted the US reading of those sources and which showed that Thailand had implemented sufficient sea turtle conservation programmes.

3.32. The United States replied to India that the nesting population at Gahirmatha had fluctuated widely in recent times. Large numbers of olive ridley strandings had occurred. The IUCN had noted with alarm the "significant fishing-related mortality" being sustained by this population, and that such mortality would certainly increase "as fishing activities continue to increase rapidly in the Indian Ocean".⁶⁶ In short, the olive ridley population at Gahirmatha was not safe. As to the argument that the olive ridley population nesting at Gahirmatha had "stabilized", the United States noted that there was a big difference between a population that was "recovering" and one that had "stabilized". A population that had been depleted to 1 per cent of its former size might achieve stabilization at that very low level and still be at grave risk of extinction. A population that was recovering was one that had made substantial progress back to its former size. The statement that there were no recovering populations of olive ridleys anywhere had been made on the basis of extensive scientific research by C. J. Limpus, an Australian sea turtle biologist.⁶⁷ Regarding India's claim that the population model of Dr. D. Crouse had been questioned by another US leading scientist, the United States noted that the article referred to by India was written in fact by Selina Heppell, and not by Dr. Mortimer. More importantly, the article did not question the model of Dr. Crouse. The principal point of Dr. Heppell's article was that sea turtle eggs were important and could not be ignored in recovery plans, and that when sea turtle populations were at low levels, full protection in all life stages was needed. The article stated, as the United States was explaining throughout this proceeding, that "the reproductive value of eggs and hatchlings is generally much lower than that of large juveniles, subadults or adults", and thus that "an increase in the annual survival in the first year of life will always have comparatively small impact" on the preservation of sea turtle populations.

3.33. The United States replied to Malaysia that, as egg protection programmes existed in Malaysia since 1966, their effects should be known. In this respect, Malaysia's own exhibit⁶⁸ stated that "[a]ssuming a 20-year maturation period for leatherbacks, these hatchlings should already be recruiting into the breeding population. However, persistent population declines indicate no evidence of recruitment. ... The 100 per cent egg incubation practised now cannot significantly rehabilitate the population" unless measure were taken to effectively control fishery-related mortality. Malaysia's own exhibits⁶⁹ contradicted Malaysia's arguments regarding the recovery of the sea turtle populations at Sabah Turtle Islands and Sarawak Turtle Islands since they showed that egg protection was not enough and that these populations had not recovered. While the prohibitions on direct exploitation of sea turtles might have avoided a total collapse of Malaysian sea turtle populations, all species of sea turtles in Malaysia remained "vulnerable to extinction"⁷⁰ and a number of documents submitted to the Panel confirmed that all sea turtles in Malaysia were in dire conditions.⁷¹ Another document submitted by Malaysia stated that TEDs should be used in Malaysia.⁷² Finally, a study submitted by Malaysia⁷³ showed that trawl nets caught more sea turtles than driftnets, thus contradicting Malaysia's claim that driftnets caused more sea turtle deaths than trawl nets.

3.34. As to whether the Indian olive ridley sea turtle population was "recovering", India replied that the US statement based on research done by Dr. C. J. Limpus was irrelevant. First, Dr. Limpus had not done any work on any significant population of olive ridley sea turtles in India, and, second, Australia did not have any record of any important olive ridley sea turtle population of its own which had migrated to Indian waters for Dr. Limpus to make any relevant observation.

3.35. Malaysia replied that the United States misquoted scientific information and used conclusions reached by Malaysian scientists on a particular population and superimposed those conclusions on a totally different population of sea turtles. For instance, when questioning the recovery of the sea turtle populations at Sabah and Sarawak Turtle Islands, the United States actually referred to the conclusions of an exhaustive analysis of the leatherback population, which had undergone population decline.⁷⁴ These conclusions could not be applied to the Sabah Turtle Islands population which had shown an impressive population recovery, to levels beyond historical levels. The United States also misinterpreted the study on leatherback populations⁷⁵: (i) the statement "[h]owever, persistent population declines indicate no evidence of recruitment" contained in that study was made to prove that the low level of egg protection previously practised (only 5 - 20 per cent of total eggs laid) was insufficient for population recovery; (ii) the statement that "[t]he 100 per cent egg incubation practised now cannot significantly rehabilitate the population" was true because the population had declined to such low levels that 100 per cent actually presented only a small quantum of eggs, and in terms of absolute numbers of eggs, was comparable to the 5-20 per cent egg protection practised previously. Malaysia stressed that the same study did not identify shrimp trawls to be the major cause of the decline of the leatherbacks, and recommended that "fishing gear impacts need to be addressed at both the local and international levels". The statement that all species of sea turtles in Malaysia remained "vulnerable to extinction" was a generalization without any reference to statistics. The document stating that TEDs should be used in Malaysia also stated that "there are no direct observations made to prove that certain fishing gear can induce mortality to sea turtles".⁷⁶ Finally, the United States was wrong in referring to the Bin Ibrahim study⁷⁷ to show that trawl nets caught more sea turtles than driftnets. This study clearly showed that rates of capture for driftnets (for mesh larger than 18 cm) was 16 turtles per gear, while for trawl nets, it was 5 turtles per gear. In the survey, the number of turtles caught by trawls was shown to be 59, compared to the 33 caught by driftnets. A superficial and unscientific interpretation could lead to the conclusion that trawls caught more turtles than driftnets. Malaysia stressed, however, that this study surveyed 12 trawl nets, but only 2 driftnets. Therefore, in terms of rates of capture, and numbers of units of gear licensed, driftnets undoubtedly posed greater threats to sea turtles. To conclude, all the hard data presented by Malaysia refuted the argument made by the United States that all sea turtles in Malaysia were in dire conditions.

To Continue With Chapter 3.36

²⁵ Sea Turtle Conservation in Thailand, (1996), Department of Fisheries, Ministry of Agriculture and Cooperatives, Thailand.

²⁶ The Night-Trawled Monitoring Surveys During 1967-1996, (1997), Marine Fisheries Division, Department of Fisheries.

²⁷ Report of the Marine Turtle Expert Working Group, (1996), Status of the Loggerhead Turtle Population (Caretta caretta) in the Western North Atlantic, pp. 13-14.

²⁸ Report of the Marine Turtle Expert Working Group, (1996), Kemp's Ridley Sea (Lepidochelys kempii) Turtle Status Report, pp. 3-4.

²⁹ "Headstarting" is a technique where sea turtle eggs are taken from the wild and incubated. The hatchlings are raised in captivity, usually for approximately one year, then released into the wild.

³⁰ The "reproductive value" is the relative contribution of an individual of a given age to the growth rate of the population. (National Research Council, National Academy of Sciences, (1990), Decline of the Sea Turtles: Causes and Prevention, Washington D.C., p. 49).

³¹ National Research Council, National Academy of Sciences (1990), Decline of Sea Turtles: Causes and Prevention, p. 70; S. Heppel, et. al., Population Model Analysis for the Loggerhead Sea Turtle (Caretta caretta) in Queensland, (1996), Wildlife Research, No. 23, p. 143.

³² S. Heppel, et. al., (1996), Population Model Analysis for the Loggerhead Sea Turtle (Caretta caretta) in Queensland, Wildlife Research No. 23, p. 563.

³³ C.J. Limpus, (1993), Current Declines in Southeast Asian Turtle Populations, in Proceedings of the Thirteenth Annual Symposium of Sea Turtle Biology and Conservation, p. 89.

³⁴ J.A. Mortimer, (1990), Marine Turtle Conservation in Malaysia, in Proceedings of the Tenth Annual Symposium of Sea Turtle Biology and Conservation, p. 21.

³⁵ N.V.C. Polunin and N.S. Nuitja, (rev'd ed. 1995), Sea Turtle Populations of Indonesia and Thailand, in K.A. Bjorndal, Biology and Conservation of Sea Turtles, p. 359.

³⁶ IUCN (World Conservation Union), (1997), A Marine Turtle Conservation Strategy and Action Plan for the Northern Indian Ocean.

³⁷ The United States observed that the degree of enforcement of existing sea turtle conservation measures in South Asia was called into question. Despite bans on the harvesting of sea turtle eggs, for example, "near-total egg harvest still characterizes the green turtle nesting populations of Indonesia, Thailand and Terengganu, Malaysia". C.J. Limpus, (rev'd ed. 1995), Global Overview of the Status of Marine Turtles: A 1995 Viewpoint, in K.A. Bjorndal, Biology and Conservation of Sea Turtles, p. 606; C.S. Kar and S. Bhaskar, (1995), Status of Sea Turtles in the Eastern Indian Ocean, in K.A. Bjorndal, Biology and Conservation of Sea Turtles, p. 365.

³⁸ S. Settle, (1995), Status of Nesting Populations of Sea Turtles in Thailand and Their Conservation, in Marine Turtle Newsletter, No. 68, p. 10.

³⁹ IUCN (World Conservation Union), (1995), A Global Strategy for the Conservation of Marine Turtles, p. 2. The United States noted that IUCN's finding was based on scientific population modelling. Ibid.

⁴⁰ Statement of Deborah Crouse, Ph.D., 23 July 1997, paragraph 3, document submitted to the Panel by the United States.

⁴¹ J.A. Mortimer, (1990), Marine Turtle Conservation in Malaysia, in Proceedings of the Tenth Annual Symposium of Sea Turtle Biology and Conservation, p. 21. The United States noted that this article also detailed a number of grave difficulties with sea turtle hatchery programmes that impeded their effectiveness. Other studies noted the extensive problems of hatchery programmes: Country Report for Malaysia, presented at the Northern Indian Ocean Sea Turtle Workshop and Strategic Planning Session, 13-18 January 1997, in Bhubaneswar, Orissa, India, p. 4 ("Poor hatchling success may result from poor handling and hatchery management techniques. Personnel running the hatcheries sometimes do not receive sufficient training or understand the technical requirements for improved hatchling success"); Statement of Deborah Crouse, Ph.D., 23 July 1997, paragraph 12, document submitted to the Panel by the United States ("These programmes have been costly, fraught with logistic problems, and are still considered highly experimental").

⁴² D.T. Crouse, et. al., (1987), A Stage-Based Model for Loggerhead Sea Turtles and Implications for Conservation, Ecology, Vol. 68, No. 5, pp. 1412-23. The United States noted that there was also a real question about the ability of some nations to enforce rules to protect sea turtle eggs on nesting beaches. According to one report, "near-total egg harvest still characterizes the green turtle nesting populations of ... Thailand and Terengganu in Malaysia. ... A large proportion of [hawksbill turtle] eggs appear to be harvested in Malaysia (Terengganu) [and] Thailand." C.J. Limpus, (rev'd ed. 1995), Global Overview of the Status of Marine Turtles: A 1995 Viewpoint, in Biology and Conservation of Sea Turtles, K.A. Bjorndal ed., p. 606.

⁴³ S. Chantrapoornsyl, (1997), Status of Marine Turtles in Thailand, Phuket Marine Biological Center, p. 1.

⁴⁴ Statement of Deborah Crouse, Ph.D., 23 July 1997, paragraphs 6-8, document submitted by the United States to the Panel.

⁴⁵ Ibid., paragraph 10.

⁴⁶ J.A. Mortimer, (1990), Marine Turtle Conservation in Malaysia, in Proceedings of the Tenth Annual Symposium of Sea Turtle Biology and Conservation, p. 21.

⁴⁷ C.J. Limpus, (1993), Current Declines in South East Asian Turtle Populations, in Proceedings of the Thirteenth Annual Symposium of Sea Turtle Biology and Conservation, p. 89.

⁴⁸ J.A. Mortimer, (1990), Marine Turtle Conservation in Malaysia, in Proceedings of the Tenth Annual Symposium of Sea Turtle Biology and Conservation, p. 21.

⁴⁹ Country Report for Malaysia, presented at the Northern Indian Ocean Sea Turtle Workshop and Strategic Planning Session 13-18 January 1997 in Bhubaneswar, Orissa, India, p. 3.

⁵⁰ C.J. Limpus, Global Overview of the Status of Marine Turtles: A 1995 Viewpoint, in Biology and Conservation of Sea Turtles, (1995), Biology and Conservation of Sea Turtles, K.A. Bjorndal, p. 06. The United States noted that another analysis of the ddcumented that "the numbers [of olive ridley sea turtles] in rengganu have seriously declined to only 35 nestings in 1995 compared to 293 nestings in 1984". Country Report for Malaysia presented at the Northern Indian Ocean Sea Turtle Workshop and Strategic Planning Session, 13-18 January 1997, in Bhubaneswar, Orissa, India, p. 3.

⁵¹ Country Report for Malaysia, presented at the Northern Indian Ocean Sea Turtle Workshop and Strategic Planning Session, 13-18 January 1997, in Bhubaneswar, Orissa, India, p. 3.

⁵² C.J. Limpus, Current Declines in South East Asian Turtle Populations, (1993), in Proceedings of the Thirteenth Annual Symposium of Sea Turtle Biology and Conservation, p. 89. The United States noted that another scientific analysis documented that "the green turtle populations nesting in Sarawak and Sabah have both declined dramatically during the past five decades". J.A.Mortimer, (1990), Marine Turtle Conservation in Malaysia, in Proceedings of the Tenth Annual Symposium of Sea Turtle Biology and Conservation, pp. 21-22.

⁵³ C.J. Limpus, (1993), Current Declines in South East Asian Turtle Populations, in Proceedings of the Thirteenth Annual Symposium of Sea Turtle Biology and Conservation, p. 89; J.A. Mortimer, (1990), Marine Turtle Conservation in Malaysia in Proceedings of the Tenth Annual Symposium of Sea Turtle Biology and Conservation, pp. 21-22.

⁵⁴ Statement of Deborah Crouse, Ph.D., 23 July 1997, paragraph 8. Document submitted to the Panel by the United States.

⁵⁵ E.H. Chan and H.C. Liew, (1996), Decline of the Leatherback Population in Terengganu, Malaysia, 1956-1995, Chelonian Conservation and Biology, Vol. 2, No. 2, pp. 196-203.

⁵⁶ S. Settle, (1995), Status of Nesting Populations of Sea Turtles in Thailand and Their Conservation, in Marine Turtle Newsletter 1995, No. 68, p. 8.

⁵⁷ C.J. Limpus, (1995), Global Overview of the Status of Marine Turtles: A 1995 Viewpoint, in Biology and Conservation of Sea Turtles, K.A. Bjorndal ed., p. 606.

⁵⁸ S. Chantrapoornsyl, (1997), Status of Marine Turtles in Thailand, Phuket Marine Biological Center, pp. 1-3.

⁵⁹ B. Phasuk, (1992), Biology, Culture, Technique and Conservation of Sea Turtle in Thailand.

⁶⁰ T. Sujittosakul and S. Senaluk, (1997), Relation Between Sea Turtle Nesting and Number of Shrimp Trawler Around Kram Island, Cholburi Province, Technical Paper No. 6, Marine Fisheries Division, Department of Fisheries.

⁶¹ J. Mortimer, (1997), On Importance of Eggs, Marine Turtle Newsletter, No.76.

⁶² IUCN (World Conservation Union), (1995), A Marine Turtle Conservation Strategy and Action Plan for the Northern Indian Ocean, and Integrating Marine Conservation in the Indian Ocean 1996 and Beyond, Summary and Working Group Reports, 28 November-1 December 1995, Mombasa, Kenya, p. 21.

⁶³ C.J. Limpus, (1995), Global Overview of the Status of MarineTurtles, Biology and Conservation of Sea Turtles, K.A. Bjorndal ed., Smithsonian Institution Press, 2nd edition, pp. 605-609.

⁶⁴ E.H. Chan and H.C. Liew, (1996), A Management Plan for the Green and Hawksbill Turtle Populations of the Sabah Turtle Islands - A Report to Sabah Parks, Sea Turtle Research Unit (SEATRU), Universiti Kolej, Universiti Putra Malaysia, Terengganu.

⁶⁵ E.H. Chan and H.C. Liew, (1996), Decline of the Leatherback Population in Terengganu, Malaysia, 1956-1995, Chelonian Conservation and Biology, Vol. 2, No. 2, pp. 196-203.

⁶⁶ IUCN (World Conservation Union), (1997), A Marine Turtle Conservation Stragegy and Action Plan for the Northern Indian Ocean, p. 11.

⁶⁷ C.J. Limpus, (1995), Global Overview of the Status of Marine Turtles: A 1995 Viewpoint, Biology and Conservation of Sea Turtles, K.A. Bjorndal ed., pp. 605-610.

⁶⁸ E.H. Chan and H.C. Liew, (1996), Decline of the Leatherback Population in Terengganu, Malaysia, 1956-1995, Chelonian Conservation and Biology, Vol. 2, No. 2, pp. 196-203.

⁶⁹ M.S. Suliansa, P. Basintal and N.L. Chan, (1996), Impacts of Fishery Related Activities on Sea Turtles, Paper presented at the National Seminar/Workshop on Marine Turtle and Terrapin Management, 22-23 October 1996, Cherating, Malaysia; and E.H. Chan and H.C. Liew, (1996), Decline of the Leatherback Population in Terengganu, Malaysia, 1956-1995, Chelonian Conservation and Biology, Vol. 2, No. 2, pp. 196-203.

⁷⁰ M.S. Suliansa, P. Basintal and N.L. Chan, (1996), Impacts of Fishery Related Activities on Sea Turtles, Paper presented at the National Seminar/Workshop on Marine Turtle and Terrapin Management, 22-23 October 1996, Cherating, Malaysia.

⁷¹ The United States referred to the following documents: M.S. Suliansa, P. Basintal and N.L. Chan, (1996), Impacts of Fishery Related Activities on Sea Turtles, Paper presented at the National Seminar/Workshop on Marine Turtle and Terrapin Management, 22-23 October 1996, Cherating, Malaysia; and E.H. Chan and H.C. Liew, (1996), Decline of the Leatherback Population in Terengganu, Malaysia, 1956-1995, Chelonian Conservation and Biology, Vol. 2, No. 2, pp. 196-203; J.A. Mortimer, (1990), Marine Turtle Conservation in Malaysia, Proceedings of the Tenth Annual Symposium of Sea Turtle Biology and Conservation, p. 12; C.J. Limpus, Current Declines in South East Asian Turtle Populations, (1993), Proceedings of the Thirteenth Annual Symposium of Sea Turtle Biology and Conservation, p. 89; H.C. Liew, (1997), Country Report for Malaysia,paper presented at the Northern Indian Ocean Sea Turtle Workshop and Strategic Planning Session, Bhubaneswar, Orissa, India, 13-18 January 1997; C.J. Limpus, Global Overview of the Status of Marine Turtles: A 1995 Viewpoint, Biology and Conservation of Sea Turtles (K.A. Bjorndal ed., rev'd ed), pp. 605-610.; Statement by D. Crouse, 23 July 1997, paragraph 8.

⁷² M.S. Suliansa, P. Basintal and N.L. Chan, (1996), Impacts of Fishery Related Activities on Sea Turtles, paper presented at the National Seminar/Workshop on Marine Turtle and Terrapin Management, 22-23 October 1996, Cherating, Malaysia.

⁷³ K. Bin Ibrahim, (1996), Country Status Report, Malaysia (Peninsular Malaysia), paper presented at the First SEAFDEC Workshop on Marine Turtle Research and Conservation, Kuala Terengganu, Malaysia, 15-18 January 1996, p. 17.

⁷⁴ E.H. Chan and H.C. Liew, (1996), Decline of the Leatherback Population in Terengganu, Malaysia, 1956-1995, Chelonian Conservation and Biology, Vol. 2, No. 2, pp. 196-203.

⁷⁵ Ibid.

⁷⁶ M.S. Suliansa, P. Basintal and N.L. Chan, (1996), Impacts of Fishery Related Activities on Sea Turtles, paper presented at the National Seminar/Workshop on Marine Turtle and Terrapin Management, 22-23 October 1996, Cherating, Malaysia.

⁷⁷ K. Bin Ibrahim, (1996), Country Status Report, Malaysia (Peninsular Malaysia), paper presented at the First SEAFDEC Workshop on Marine Turtle Research and Conservation, Kuala Terengganu, Malaysia, 15-18 January 1996, p. 17.