WWF Amicus Brief to WTO: Shrimp-Turtle Dispute Page Contents Executive Summary 2 1. Introduction 4 2. Conservation Facts 5 3. Law and Policy 17 3.1 International Law 17 3.2 Multilateral Agreements on the Law of the Sea and Conservation 22 3.3 Relevant Regional Agreements designed to protect sea turtles 24 3.4 National Law and Policy 24 3.5 Decisions of the International Court of Justice 25 3.6 Precautionary Principle 27 3.7 Treaty provision and Customary rule 28 3.8 Reasonable and Appropriate Measures 28 3.9 Good Faith 29 3.10 Estoppel 30 3.11 Obligations Arising Under the Convention on Biological Diversity 32 3.12 Article XX of GATT 35 4. Conclusion: Facts and Law 38 5. Endnotes 40

WWF Amicus Brief to WTO Shrimp-Turtle Dispute Executive Summary WWF submits this amicus brief on the WTO Shrimp-Tur tle dispute as a non-governmental organisation with off ices and affiliates in countries around the globe, including in the Respondent and Complainant countries. The brief aim s to ensure that the WTO Dispute Settlement System has b efore it both the scientific and other technical facts relev ant to the conservation of sea turtles; and the relevant inter national, regional and national law and policy governing the conservation of sea turtles. These arguments under line the need for the establishment of an expert review grou p under Article 13 of the DSU to advise the Panel. The sea turtle species impacted by shrimp fishing i n the Complainant countries are highly migratory species, and thus are part of the environment of other States, of are as beyond national jurisdiction and are part of the common he ritage of humankind. Scientific research shows that they can not be effectively conserved without protection of the sex ually mature adult stages, including in waters around the coast line of the complainant countries, at considerable distances from these shore-lines and nesting beaches, and tha t current shrimp fishing practices in these habitats threate ns these species1 survival. Turtle Excluder Devices (TEDs), the use of which is prescribed by the US measures, have been shown to b e effective in conserving these sea turtle species. Studies and trials, including preliminary ones in the water s of at least two of the Complainant countries, have demon strated this. TEDs have been shown to increase the efficie ncy of shrimp fishing trawls, can be manufactured locally at low cost, and are more practical and less complicated t o implement than other conservation measures. The US has undertaken transfer of TED technology, and has invi ted cooperation of the Complainant countries under a mu ltilateral process to protect these sea turtles, including thr ough the use of TEDs. A general obligation arises from Customary internat ional law, and can be derived from treaty law, that requires states to supervise and control activities within their juri sdiction that undermine the conservation status of endangere d species. These obligations are derived from, among others, the 1972 Stockholm Declaration on the Human Environment, th e

Convention on Biological Diversity (CBD), the Bonn Convention on Highly Migratory Species, the Convention on the International Trade in Endangered Species (CITES), and UN General Assembly resolutions. The harvesting of shrimp within and beyond national jurisdiction is also subject to international legal agreements, including the UN Convention on the Law of the Sea (UNCLOS). Regional agreements, including the ASEAN Agreement on the Conservation of Nature and Natural Resources , also contribute to international law which protects sea turtles. Decisions of the International Court of Justice dem onstrate and display the existence of the general and specif ic rules referred to above, and reinforce the obligation of states to respect the environment of other states or of area s beyond national control (the Global Commons). National la w and policy in all four Complainant countries recognises these international obligations to protect these turtles and their habitats, though implementation failures leave thos e countries in breach of these obligations. The current WTO Dispute Panel, and any future Appel late Body are obliged to have due regard to the body of inte rnational law as a whole, including international environment al law, according to the Vienna Convention on the Law of Tr eaties. The WTO Appellate Body in the Reformulated Gasoline (RFG) case (1996) recognised that GATT law cannot be read in clinical isolation from public international law. Furthermore, under the principle of ‘estoppel’ stat es cannot assert rights under WTO law which are inconsistent with obligations to conserve sea turtles, or which prev ent other states from fulfilling those same obligations. The WWF brief concludes that given the above facts and law, and particularly the RFG Appellate Body ruling, the environmental exception available under Article XX is sufficient to establish that the measures under di spute relate to conservation, are necessary, and are not arbitrary or unjustifiable.

1. Introduction The World Wide Fund For Nature - WWF intervenes in this dispute between states as a non-governmental organi sation with offices and affiliates in countries around the globe, including in the Respondent and in the Complainants involved in this dispute. WWF’s objective is to ensure tha t the WTO Dispute Panel has before it both the scientific and other technical facts relevant to the conservation of sea turtles; and the relevant international, regional and nation al law and policy governing the conservation of sea turtles. T he letter and spirit of the WTO Dispute Settlement Understand ing (DSU), and international law generally, compels the Panel and any Appellate Body to take these facts and laws into ac count when clarifying WTO Members’ rights and obligations. [Vi enna Convention on the Law of Treaties, Article 31; WTO DSU, Articles 3.2 and 13]. 1.2 On the basis of the facts and law presented, WW F will demonstrate that: (i) all States have a general obligation to ensure that activities within their jurisdiction respect the en vironment of other States and of areas beyond the limits of n ational jurisdiction; (ii) sea turtles are a migratory species, and are t hus part of the environment of other States and of areas bey ond national jurisdiction and/or are part of the common heritage of humankind; (iii) international law recognises that sea turtles are endangered species and accordingly places the oblig ation on all States to protect them; (iv) furthermore, the Complainant States have, unde r various international agreements, undertaken the specific o bligation to protect sea turtles; (v) the activities undertaken by the Complainants w ill contribute to the further endangerment of sea turtl es, and are likely to lead to their extinction; and (vi) in the circumstances, the Respondent, and St ates generally, are entitled to take reasonable and prop ortionate trade-related measures to protect sea turtles.

1.3 In the course of its arguments, WWF seeks: (i) to draw to the attention of the panel, and in t he event of an appeal, the Appellate Body, the relevance of international environmental law to the settlement o f this dispute; (ii) to contribute its own reasoning in support of the argument that the US legislation may, on the facts of this case, benefit from the protection of the exception in Article XX(b) and (g); (iii) to adopt the reasoning of the Appellate Body in the Reformulated Gasoline Case and to reject entirely t he reasoning of the Panel in the unadopted decisions k nown as the Tuna/Dolphin Panels; (iv) to demonstrate the utility of a formal right o f intervention for non-governmental organisations in disputes before the WTO; (v) to display any additional scientific arguments demonstrating the correlation between shrimp fisher ies and turtle mortality so as to maintain a level of prote ction for sea turtles which would ensure their survival in th e wild; and (vi) to argue for the establishment of an expert re view group under Article 13 of the DSU to advise the panel. 2. Conservation Facts 2.1 Seven species of sea turtles are listed as enda ngered. Five of these species occur in the complainant coun tries, and face extinction1. These species are all migratory. Legally a migratory species is one where a significant propor tion of the numbers/population move cyclically and predicta bly across one or more national jurisdictional boundaries2. Hi storic-ally five species have nested, foraged and migrated along the coasts of each of the Complainant countries: the gr een, olive ridley, hawksbill, leatherback and loggerhead. In their submissions, each of the Complainant countries alle ge that their conservation policies for sea turtles are ade quate to protect the species in question without using by ca tch avoidance in their fishing fleets. Each Complainant country has refused to join a Multilateral Environmental Ag reement (MEA) involving commitment to the use of the Turtle Excluder Device (TED).

2.2 This brief will show that there are compelling and immediate reasons for the Panel seized of this disp ute to call for scientific experts, to advise them imparti ally on the biological and ecological aspects of this dispu te. These aspects, by reason of their urgency and their proxi mity to the heart of the issue, cannot be isolated from the WTO decision which has been requested by the complainan t countries. The Panel has authority to call for scie ntific expertise to be made available to them, in Annex 2 of the Understanding on Rules and Procedures Governing the Settlement of Disputes, at Article 13, paragraph 2, and at Appendix 4, ‘Expert Review Groups’. It is our conte ntion that the Panel must inform itself of all the relevant fa cts before coming to a decision which has legal effect, and th at such facts clearly extend beyond those relating to the trade in shrimp. 2.3 Sea turtles are highly migratory species. The S ea turtles move through a variety of habitats and in a nd out of the waters of various nations during their lifetime s as they move from developmental to foraging and eventually to reproductive habitats and back again. There is a su bstantial body of evidence documenting the migratory habits o f sea turtles especially in breeding adults. In the compl ainant countries, researchers and other observers have fou nd turtles tagged in Karachi on the coast of Gujarat, India. Sea turtles tagged on the coast of Malaysia have been r ecovered from Taiwan, Japan and Hawaii (USA). Sea turtles ta gged on the Orissa coastline in India have been recovered l ater in Sri Lanka. Those hatchlings which mature into gravi d (egg-bearing) females and survive, remigrate during the course of their adult lives, sometimes after one year, more o ften after two to five years, as they return to distant nesti ng sites. 2.4 Sea turtles can exhibit strong philopatry (n est site fidelity), but a mature female may range to other n esting beaches from a few to 100 km away. So that, whilst it may be thought that their loyalty to a nesting place puts them, periodically, in the jurisdiction of a single State , the facts show that even this aspect of their behaviour can involve more than one jurisdiction, principally bec ause of beach erosion and the phenomenon of longshore drift . For example, there is evidence collated to show counter -current intra-seasonal inter-nesting shifts between Surinam and French Guiana beaches3. Longshore drift may be so strong that a whole beach can disappear in one season, obl iging the nesting sea turtle to relocate. Work has also been done to indicate that up to 27% of the West Indies nesting population

shifted beaches each year, travelling distances of up to 30 -90 km4. 2.5 Sea turtles occur in the same marine ecosystem as shrimp. Their feeding habits can be connected, as f or example in the Gulf of Mexico, where the Kemps Ridley feeds primarily on the crab which shares the habitat of the white, pink and brown Penaeus shrimp. Considerable research has bee n done on the sea turtle population in the waters of the East ern USA, which indicates that the sea turtle should correctl y be considered as a biological indicator of the health of the marine eco-system which it inhabits. 2.6 The first crucial issue on which the Panel shou ld inform itself is the pattern of the sea turtles reproducti ve cycle. There is a prestigious body of international resear ch, in which there is little disagreement. As turtles are both long-lived and migratory, a long period (twenty years) i s required for accurate information to be collated and accurat ely analysed. The conclusions which may be extrapolated from the available analyses are as follows: 2.7 A sea turtle’s life may be conveniently divided into seven stages, which reflect its age, habits and rep roductive capacity. These stages are identified as eggs/hatch lings, small juveniles, large juveniles, subadults, novice breeders, first time remigrants and mature breeders. (I) The potential life-span for a sea turtle is man y decades. (ii) Sexual maturity comes late in the life cycle of the sea turtle - the olive ridley, for example, does not ac hieve maturity until it reaches 20 to 40 years of age5. A female turtle will nest on average three times in one seas on with an average period of 15 days between each laying. She may not then return to nest for several years. (iii) The hatchling can be subject to enormously h igh mortality rates, (in some circumstances, up to 90%) . The evolution of sea turtles over millions of years has taken account of high levels of natural mortality amongst the very young animals. The loss of individuals at this stag e is not as detrimental to the survival of the population as is mortality at later stages in the life cycle. Expert s suggest that one in 1000 hatchlings reaches sexual maturity . iv) Turtles that have survived the hatchling stage must then survive a further substantial period, between 15 an d 35

years, the pelagic phase, one to several years in l ength, before entering the juvenile and sub-adult populati ons, and ultimately the population of mature animals. (v) By the time a turtle reaches adulthood (after 2 0-40 years) it is an essential member of the population. Natural mortality among these adult animals tends to be ver y low, moreover, reproductive fecundity increases with the age of an adult female turtle. Under natural circumstances, o nce a female reaches adulthood, she will lay multiple egg clutches, usually every two to four seasons throughout her ad ult life. Thus human-induced mortality at this stage in the c ycle is particularly harmful to the population. (vi) Where gravid females attempting to lay eggs c oincide with periods of intense unmodified trawling activit y, the result is high rates of mortality amongst the adult breeding population. The temporal and spatial correlation be tween shrimp trawling and migrating turtles is barely ack nowledged by the Complainant countries. On the Orissa coast, for example, two nesting periods occur annually, in December/January and March/April. The monsoon seaso n runs from June to September, and the period from Novembe r to April/May is marked by peak trawling activity. Unmo dified trawling practices have been responsible for the de aths of several thousand adult olive ridleys each year sinc e the late 1980’s, when large-scale trawling activities commen ced. 2.8 All the stage-based population models compiled to identify the stages at which measures could be take n to halt declines in population indicate that even 100% hatc h success on specific nesting beaches will not prevent extinc tion, if mortality among mature animals is high6. 2.9 There is a dearth of understanding of the popul ation dynamics of sea turtles: the evidence is that curre nt management practices are focused on the least respo nsive life stage, ie eggs on nesting beaches. This type of con servation is an easier matter: there is an obvious apparent r esult, ie visible hatchlings, which, the literature indicates , lulls people into supposing that the decline has been hal ted. Turtle hatchling populations, according to the evid ence, are being carefully nurtured in some complainant countr ies, but the mortality rate of the sea turtle population as a whole continues to rise. The stage population models indi cate that although in many parts of the complainant countries , conservation of the nesting beach habitat is in pla ce, and hatchling mortality is considerably reduced, the se a turtle population is nevertheless speeding towards extirpa tion, since the mortality rates of juveniles, sub-adults and adult

breeders continue to rise. Models suggest that a 20 year time lapse will occur before the conserved hatchling can be seen by its absence to have died out, most probably by b eing drowned in the fishing net. The Panel needs to be i nformed: it needs both to question and to understand the rat io between hatchling and adult breeder. Research shows, withou t question, that where a hatchling is worth one, an a dult breeder is worth at least 600 in reproductive terms 7. 2.10 Biologists have accordingly concluded that a r eduction in mortality in the later stages of the sea turtle’ s life-cycle is pivotal to its survival. The sea turtle oc curs in waters around the coast line of the complainant cou ntries, at considerable distances from the shore-lines and nes ting beaches. It is this unacknowledged and unprotected part of its habitat which is currently mis-managed in a way which threatens the species survival. 2.11 The complainant countries do not adequately ad dress the evidence relating to the conservation status of tur tles which indicates that the primary threat to sub-adult and adult sea turtles comes from the fishing practices of the com mercial shrimp fleets which operate in the coastal zones of each of these countries. There is no dissent amongst the international sea turtle scientific community that the use of unmodified shrimp nets is the primary and principal cause for the rates of anthropogenic mortality (from drowning ) which afflict the sea turtle populations in these areas. Therefore, the second critical issue for the Panel to determin e is the effect of shrimp fisheries on sea turtles in the co astal zone. 2.12 An analysis of these issues follows, using fac ts collated from the Complainant states. 2.12.1 Thailand Present: green turtle, olive ridley, hawksbill and leatherback Extirpated: loggerhead Non-farmed Shrimp production (1994): 118,984 tonnes Two main nesting habitats: (i) The Gulf of Thailand: at Khram Island Here, the green and hawksbill lay eggs throughout t he year, peak laying from May to August. The number of nests declined from 499 (380 Green,

119 Hawksbill) in 1985 to 306 (255 Green, 51 Hawksb ill)in 1995. (ii) The Andaman Sea: at Phrathong, Phuket, Surin a nd Similan islands, and Thaimung beach Here, the sea turtle population continues to declin e drastically, particularly the olive ridley and leat herback, found at the Andaman Sea coast. All five species of sea turtle had previously occurred in this area. The nu mber of nests in this area declined from 360 in 1985 to 36 in 1995. Nesting occurs from October to March, peak laying f rom mid November to mid January. Nesting areas are now protected by National Park st atus, and policed by the Thai Navy. The Fisheries Act 1972, prohibiting commercial fish ing within three kilometres of the coastline, was passed after it was established that most sea turtle mortality results from capture and drowning in trawl nets. The Thai Turtle Free Device (TTFD) was introduced i n September 1996. Official governmental evaluations i ndicate that the device which the Thai government has intro duced is less cost-efficient than models used by other shrim pers. However, SEAFDEC studies from controlled experiment s indicate that the Supershooter and TTFD types are both effic ient and cost-effective, both in catch selection and fuel co nsumption, the TTFD being slightly more convenient to operate8 . Although officially TEDs are now in use in Thai coastal wate rs, unofficially, TEDs are infrequently to be found on fish/shrimp trawlers. Twenty-four hour pushnet traw ling is regularly observed, and the evidence is that polici ng of the regime is both difficult and unsuccessful9. Local c oastal populations who depend upon sustainable fishing for their livelihood see large commercial trawlers denuding t he coastal zone of all marine life, from sea turtles to the sm allest life-forms. Section 609 actually assists the Thai g overnment by giving an extra economic impetus to the applicat ion of a regulation which is plainly proving very difficult to enforce. There are substantial conservation programmes in pl ace which are all geared to the beginning of the turtle’s lif e cycle, ie the egg/hatchling stage. Without a conservation programme which addresses juvenile, subadult and adult mortal ity, these programmes cannot succeed.

2.12.2 Malaysia Present: leatherback, green, hawksbill, olive ridle y Main nesting habitat: The East Coast of Peninsular Malaysia and Sabah Also : The West Coast Non-farmed Shrimp production (1994): 96,076 tonnes (i) The Terengganu coast This is the meeting site of the Rantau Abang leathe rback population. In 1956, a total of over 10,000 nests p er year was recorded. In 1995, a mere 37 nests were found. The annual decline has averaged 260 nests per year. The declin e since 1980 has averaged 16% annually. Scientific analysis of the pattern of decline indicates extirpation by the yea r 2003. The immediacy of this decline is the most compellin g evidence that the Panel should avail itself of expert eviden ce. Leatherbacks from this nesting area are highly migr atory, and international driftnet fishing in the South China S ea and North Pacific has contributed to the population dec line. However, studies indicate that the rapid decline of the last three decades coincides with the rapid development of the fishing industry in the Terengganu area. Figures fr om a fish trawling study compiled in 1987 show, for example, that out of 128 cases of incidental captures of sea turtles off Terengganu between 1984 and 1985, (of which 47 were leatherbacks 40 olive ridleys and 41 green turtles) , 29 were caught in drift/gill nets, four by longlines, but 9 5 were drowned in trawlnets. By extrapolation from this st udy, it was estimated that a total of 1164 turtles were cap tured per year, by licensed trawlers. Capture occurred more f requently between March and September. Although trawling for fish does not occur in the monsoon season, between October an d February, shrimp trawling continues ceaselessly thr oughout this period. The first hatchery for leatherbacks was established in 1961. However, it is clear that the hatchery programme ha s come nowhere near to halting the decline. Between 1966 a nd 1976, many hatchlings were released from Rantau Abang. As suming the 5-10 year maturation period, these hatchlings shoul d now be joining the breeding population. There is no eviden ce to show that they have survived. The leatherback is highly pelagic, and a hatchery programme alone clearly will not ens ure its survival. Experts on the subject of the Malaysian l eatherback population say that action is desperately needed on the part

of the international community in their management of high seas fisheries. (ii) The Perak coast By the late 1970s, more than 1,600 shrimp trawlers were fishing along this coast, and the sea turtle popula tion has now been extirpated. Malaysian biologists recommend ed fishing regulations for the West Coast of Malaysia twenty y ears ago, as it was clear then that high adult mortality rate s were already resulting in a rapid reduction of the popul ation. An agreement between Malaysia and Philippines has e stablished the Turtle Islands Protected Heritage Area. The us e of trawlnet and other commercial fishing gears are ban ned in near shore areas within the protected area. Current ly a significant number of shrimp trawlers are operating in Malaysian waters around Sabah, as well as Philippin e waters. As nesting turtles venture beyond the limits of pro tected area during nesting and remigration, these fishing activities are a threat to the nesting population. This threat is the subject of a major research priority in the bilater al agreement which establishes this transfrontier prot ected area. The sea turtle populations in the remaining areas o f Malaysia decline rapidly, where such a fishing ban is not pr actical. Malaysia has generally refused to co-operate at a s tate level with other states for the protection of the adult s ea turtle. Trawl experiments were conducted in the use of the TED during February of 1997, as a consequence of the US shrimp embargo imposed with effect from May 1 1996. The experiment s were conducted in the Pulau Pangkor waters of Perak on t he Western Coast of Malaysia, where there is a small populatio n of green turtles, and where shrimp trawling occurs all year round. Small and medium TEDs were used in the study. The experiments showed: (a) that TEDs prevented the turtle from being trap ped and subsequently drowning, (b) that none of the commercial shrimp escaped dur ing the operation, and (c) there was a small reduction in the by catch of fish and trash fish, either during trawling or hauling.

Since March, the government fisheries department ha s begun advocating the use of TEDs. The department now cond ucts workshops and encourages Malaysian shrimpers to ins tall locally built TEDs. These TEDs are uniquely suitabl e for Malaysian shrimpers, and can be produced at a cost of about RM 80 per unit ($26.00). The South East Asian Fishe ries Development Centre (SEAFDEC) is co-ordinating effor ts to implement a regional programme for TED trials. 2.12.3 India Present: West Coast: Green, olive ridley, leather back East Coast: Olive Ridley, green, hawksbill, leather back and loggerhead Inlands: Olive ridley, green, leatherback, hawksbil l and loggerhead Non-farmed Shrimp production (1994): 241,191 tonnes (i) The Orissa Coast The olive ridley customarily nests on three importa nt mass-nesting beaches along this coast line. A comprehensive survey was undertaken of this area from December 1993 to May 199410. During the survey, 528 2 dead olive ridleys were counted. Almost all the deaths w ere due to incidental capture in shrimp trawling nets. The olive ridleys arrive off the coast from an unkn own place during September and October. They mate during Nove mber and December, and the nest, laying many millions of eg gs from January to April. During this period, although the beach itself is protected, the coastal waters are not, an d much commercial fishing goes on. For the purposes of the survey, which was conducted on foot and by bicycle, the coa st was divided into eight sectors. All dead turtles found were adult: 1436 male, (27.2%) and 3846 female (72.8%). The mortality rates recorded in earlier surveys of this coast line indicated this mortality to be attributable to turtles becoming entangled in fishing gear. In sections II, III and IV11, there is a large-scale trawler fishery. The t urtles become caught in the fishing gear, and either suffo cate or are beaten to death for easy removal from the net b y trawler men. (Injuries to the head and carapace, observed i n the survey, provide evidence for this.) It is specific ally the use of mechanised fishing vessels from which the ne t is spread far wider, that produces the exceptionally h igh

mortality figures in these areas, where the governm ent of India continues to expand the fishing industry. In early 1997, a further survey of the Orissa coast indicated that shrimp trawlers were catching up to 20 olive r idleys a day in their nets. Figures now becoming available i ndicate that several thousand turtles per year are dying in trawler fishing activity which has been increasing sharply since the late 1980’s. From Ekakulia Island to the mouth of t he Chinchiri River, hundreds of carcasses can be seen on a single day. It is not known how far a drowned turtl e may drift before stranding on a beach. At any one time, 30 to 40 mechanised vessels may be seen from Gahirmatha alone. In 1980, there were 469 mechanise d craft along the Orissa coast. In 1994, after a concerted expansion of the fishing industry sponsored by the Indian gov ernment that number had risen to 2,453, and the appearance of 529 motorised craft. Similarly proportionate increases occurred over the same period, in the Andaman and Nicobar Is lands, where sea turtle conservation activities are numero us. Even greater increases in mechanised craft have occurred during this period in Andhra Pradesh, and Tamil Nadu 12. The TED has never been used along the coast, until a recent workshop (undertaken in response to Section 609 of the Endangered Species Act) was conducted to introduce and teach shrimp fishermen the local manufacture and use of T EDs. The account of the workshop indicates that participants were both surprised and delighted by the TED. The workshop wa s held at Paradip, under the auspices of Dept of Fisheries an d Animal Resources Development, Fishermen who had previousl y been ignorant of the TED found it to be both acceptable and effective, when able to observe them for themselves . ‘In the course of the demonstration of the TED oper ation at sea from a fishing-vessel on 13th instant, it was f ound to the amazement of all present including the trawl ow ners, that an olive ridley sea turtle which had accidentally g ot inside the net fitted with a TED could at last escape thro ugh its exit hole while a similar turtle got entangled and ultimately killed in the fishing net having no TED that was be ing operated from another fishing vessel for the purpos e of comparison. It was further observed that the attach ment of the TED to the fishing net didn’t pose any problem for fishing in the sea. The participants of the demonst ration could also notice quite a number of dead turtles fl oating on the sea on their way to and back from fishing in an area nearly 20 km off Paradip coast, a fact which indica ted large

scale turtle mortality due to their incidental catc h in trawl fishing. At the end of this practical demonstration the trawl owners and operators were fully convinced of the ef ficacy of TEDs in excluding the accidentally drowned sea turt les from the fishing net while not adversely affecting the f ish catch’13. (ii) Madras Crocodile Bank A survey conducted between 18th December and 22 Jan uary 1997 showed dead adult females ( 18 per kilometre within that period), generally uninjured but occasionally with netting round the neck. A large number of dead sea turtles wash up on the beach each year between December and February. 2.12.4. Pakistan Present: olive ridley, green turtle Non-farmed Shrimp production (1994): 29,122 Less is known of the turtle population of Pakistan. No precise surveys exist of sea turtle populations: th e sizes of the olive ridley and green populations are accounte d to be globally significant. The size of the shrimp harves t in Pakistan is substantial. There is no suggestion tha t TEDs are anywhere in use. Surveys have been compiled, but re main unpublished. Karachi and the Sind coastline Hawkes Bay and Sandspit are the scene of long-stand ing hatchery and conservation programmes, although ther e is no indication of fishing regulation surrounding this a rea. It is a further example of the nesting and breeding habit at of the sea turtles being conserved, although the marine en vironment in which it must survive for at least twenty years to enter the breeding cycle remains insignificant. 2.13 The Turtle Excluder Device 2.13.1 Research into the causes of sea turtle morta lity in the waters surrounding the USA led to the developme nt of the Turtle Excluder Device (TED). This simple barred de vice, which may be produced both locally and extremely ch eaply, can be installed in existing trawlers. Its use results in the virtual elimination of the capture and drowning of sea turtles. This initiates the recovery of a sea turtl e population.

2.13.2 Mechanised trawling is a recent development in the history of shrimp fishing. Although the method yiel ds more shrimp, considerable wastage occurs during the proc ess. Shrimp often amounts to only 5-10% of the yield of a trawl. Other components might be sea turtles, fin-fish an d trash(organic and inorganic). In some areas, fin-fi sh by catch is at a ratio of 12:1. The dead or commercial ly unviable by catch is simply disposed of overboard - producing colossal waste in harvesting. The TED can reduce un wanted by-catch of finfish by up to 50%. 2.14 Economic considerations 2.14.1 The TED can be produced very cheaply. It is a very simple device: the costs of initial outlay and oper ation are very easily subsumed in its subsequent usage. The e vidence suggests that where TEDs are used : (i) a higher proportion of the shrimp catch is unda maged, (by a drowning turtle) therefore the catch may be incre ased in value. Also, the net will sustain less damage; (ii) the trawl time is more efficient without the i mpediment of the sea turtle in the net. The net may be tuned more accurately, and the boat will not bear the addition al burden of towing cumbersome drowning sea turtles; and (iii) crew members are not distracted from their wo rk by the need to dispose of dying or drowned sea turtles. 2.15 Conservation considerations 2.15.1 The Complainant countries explicitly acknowl edge the need for conservation of these endangered speci es. Limited understanding of the sea turtle’s reproduct ive life cycle has made it difficult for the complainant co untries to understand the deceptive time lag which has now tur ned the conservation of both sea turtle habitats into a mat ter of life and death for turtle populations in the compla inant countries. In parts of South East Asia, trawlers no w net fish in the day, change nets and net shrimp during the n ight14. It is already clear from the legislative and regulator y behaviour of the complainant governments that they appreciate that specific modification of their fishing practic es is essential. 2.15.2 The TED bypasses the complications which acc rue from attempts to reduce tow times, to impose curfew s,

moratoria, and other sorts of restraint which requi re impractical levels of enforcement to be effective. The TED deals with the issue at source, in an even-handed, efficient way with minimum and decreasing costs. 2.16 Technology transfer 2.16.1 Whilst TEDs evolved in the US, in response t o environmental concerns over rates of sea turtle mor tality, the device is now in general use in 13 countries. M ost of these have been provided with the technology and tr aining by the National Marine Fishery Service (NMFS)15 for us e by their commercial shrimp trawlers. In 1987, when Congress amended the Endangered Species Act (ESA) with Section 609 o f US Public Law - 101-162 (S609), the devices were relat ively costly, and still at an early stage of development. Studies at the time16 indicated that the device would not p enalise US shrimp trawlers economically, that the device would pay for itself over a very short period of time, and that i t could even increase the profits of the trawler. Since th en, the TED has been continuously refined, with different d esigns to suit different types of vessel. The cost of product ion has been reduced to the point where, so far from being a burden to the fisherman, it now amounts to a benefit. 2.16.2 The Complainant countries allege that this legislation has been implemented prematurely, but t he Complainant countries have known of its existence a nd its inevitable implementation since 1987. The TED amoun ts to a responsible fishing practice, irrespective of where it was invented. Its fore-runner was a device to exclude j elly fish from the shrimp catch. The TED is a precautionary p ractice, which forms a precedent for selective fishing, whic h should be viewed by all as inevitable. The evidence sugges ts that such measures must become a necessity if the resour ces of the oceans are to be husbanded successfully. 2.16.3 The increased interest of TED workshops in t he complainant countries, and their immediate acceptab ility to the fishermen who sampled them, have only occurred in the aftermath of the implementation of S609. 3. Law and Policy 3.1 International Law 3.1.1 International law obliges states, including t he complainant states and the United States, to refrai n from

using their territory in such a manner as to underm ine the conservation status of an endangered species. 3.1.2 International law establishes a general obli gation upon all States to ensure that their territory is n ot used in a manner which damages the environment of another S tate or of areas beyond national jurisdiction. That obligation includes a duty to supervise and control activities within t heir jurisdiction to the same ends. The general duty has been made more specific in a number of areas of international environmental law, where by agreement or customary practice certain resources or assets have become the objects of international law. Sea turtles by virtue of their endangerment as a species have become objects of pr otection in international law. International law also establ ishes a standard of duty which States must adhere to in ful filling their obligations. This varies from specific regime to regime but is generally thought to be at a minimum a due d iligence standard [see Article 194 UN Convention on the Law of the Sea, where the obligation not to pollute the sea i s subject to a best practicable means test, including a refer ence to the capabilities of State concerned]. This brief ar gues that these general and specific obligations, arising fro m both treaty and custom apply to the complainant countrie s in this dispute, that they have failed to meet the appropri ate standard of care, and that they are accordingly in breach of their obligations in international law - a matter w hich ought to be taken into account by the dispute settlement organs of the WTO operating as they do under the principles a nd rules of international law. 3.1.3 The general obligation arises from Customary international law which binds all States, once esta blished. It can be derived from treaties but is not dependen t on the contractual rights which exist between parties to t hose treaties. Article 38 of the Statute of the Internat ional Court of Justice establishes as a source of law ‘international custom, as evidence of a general pra ctice accepted as law.’ There is sufficient evidence of g eneral practice of states accepted as international law to the effect that states may not knowingly use their terr itory in such a manner as to undermine the conservation stat us of an endangered species, in this instance certain specie s of sea turtle. The argument in law proceeds from the gener al to the specific in the following way: 3.1.4 General international law. The law of State responsibility establishes a duty upon a States not to

knowingly use or allow its territory to be used in such a manner as to cause harm to another State; 3.1.5 International environmental law. Principle 21 of the 1972 Stockholm Declaration on the Human Environ ment expresses the well-known balance between sovereignt y over natural resources, such as shrimp, and a State’s responsibility for the environment, in this instanc e, turtles and their habitats: ‘States have, in accordance with the Charter of the United Nations and the principles of international law, th e sovereign right to exploit their resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or contro l do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction.’ Principle 21 was reinforced and updated in Principl e 2 of the 1992 Rio De Janeiro Declaration on Environment and Development, save for the addition of the words ‘an d developmental’ before the word ‘policies’ and endor sed by the international community. 3.1.6 Specific conventional international environme ntal law relating to endangered species and protected ha bitats. The 1973 Convention on International Trade in Endan gered Species creates a specific regime limiting the sove reignty of signatory States to trade in species which are ‘thr eatened with extinction’, as determined by the Conference o f the Parties to the agreement. The 1992 Convention on Bi ological Diversity, specifically applies the principle set o ut in 3.1.5 above in Principle 3, and creates obligations , subject to the phrase ‘as far as possible and appropriate’ to maintain ‘in situ conservation’. 3.1.7 Specific conventional international environme ntal law concerning the endangered sea turtles which are the subject of the US legislation in this case. Multila teral and regional agreements, cited below, create obligation s upon states to take measures to protect the conservation status of these turtle species which are threatened with exti nction. 3.1.8 Specific non-binding instruments concerning s ea turtles which contribute to the formation of a spec ific customary international law rule binding on the par ties to this dispute. Several instruments dealing with the conservation of sea turtles are not in themselves b inding but engage good faith obligations to act consistently w ith clearly expressed political commitments or lend con tent to

the more general rules established above or evidenc e a pattern of state practice. 3.1.9 The turtles which are the subject of this dis pute are protected by multilateral and regional agreemen ts, both binding and non-binding and consistent state practi ce in the form of national law. Additionally, the Internation al Court of Justice has had occasion to rule upon and decla re the existence of a general rule of international law re lating to the environment and specific rules relating to the conservation of marine living resources. 3.1.10 The Convention on International Trade in End angered Species 1973 (CITES) lists all seven of the recogni sed species of sea turtles as endangered on Appendix 1. All parties to this dispute are parties to CITES. CITES provides the highest level of protection for species listed under Appendix 1. CITES is an instrument of trade regulat ion designed for conservation purposes. 3.1.11 The World Conservation Union (IUCN) lists al l seven species of turtle on the Red List. The Red List indicate the highest level of protection required to ensure species do not become extinct. All the parties to this dispute are members of the IUCN.[The IUCN is a mixed State/NGO organisation, the listing of species does not create obligations directly, there being no Treaty, but its expertise and wide membership provi de strong evidence of custom when a clear decision is taken b y the Union.] 3.1.12 The 1979 Bonn Convention on Protection of Mi gratory Species of Wild Animals, provides the governing def inition of ‘migratory’ (see endnote 2). Additionally, the Prea mble of the Convention states that: ‘wild animals in their innumerable forms are an irr eplaceable part of the Earth’s natural system which must be co nserved for the good of mankind’ Such preambular statements help interpret treaty ob ligations and may themselves evidence custom. 3.1.13 All the species of sea turtle concerned, sav e the flatback, are listed in Appendix I or Appendix II o f the Bonn Convention on the Conservation of Migratory Species . Both India and Pakistan are Parties to the Bonn Conventi on. In

relation to Appendix I species, the Bonn Convention requires that: ‘Parties that are Range States of a migratory speci es listed in Appendix I shall prohibit the taking of animals belonging to such species. Exceptions may be made to this pro hibition only if: (a) the taking is for scientific purposes; (b) the taking is for the purpose of enhancing the propagation or survival of the affected species; (c) the taking is to accommodate the needs of tra ditional subsistence users of such species; or (d) extraordinary circumstances so require.’ (artic le III(5)) 3.1.14 The definition of ‘taking’ in the Bonn Conve ntion includes ‘hunting, fishing, capturing, harassing, d eliberate killing, or attempting to engage in any such conduc t’. 3.1.15 Lyster’s analysis supports the conclusion th at the accidental by catch of sea turtles in shrimp fisher ies is prohibited by this provision. He notes: ‘The circumstances surrounding the decline of the A tlantic Ridley turtle (Lepidochelys kempii) an Appendix I s pecies, provide a good example of how far-reaching Article III(5) might be. The Atlantic Ridley, like other species o f sea turtle, has a propensity to become entangled in fis hermen’s nets, and the IUCN Amphibia-Reptilia Red Data Book states that the accidental catch of Atlantic Ridleys in sh rimp trawls in the Gulf of Mexico ‘now appears to be the major direct threat to the species with probably several hundred individuals being accidentally caught annually, and drowned or killed aboard trawlers’. Since the entanglement of turtles in the trawls clearly constitutes ‘capturing’ or ‘h arassing’, even if the killing of turtles is deemed not to be ‘deliberate’, it is probably fair to conclude that Article III(5) imposes a legal duty on Parties that are Ran ge States of the Atlantic Ridley to prohibit the use of shrim p trawls in areas where the turtle occurs unless the trawls are fitted with ‘Turtle Excluder Devices’. These devices, whic h are now being used in the United States and elsewhere, rele ase inadvertently captured sea turtles and other large animals through a trap door, while shrimps pass into the en d of the trawl’. (Lyster, ‘The Bonn Convention, 29 Natural R esources Journal 1989 at 988, Wildlife Law at p287)17.

3.1.16 The United Nations General Assembly supports the sentiment of the Bonn Convention’s preamble and att aches it to Resolution 37/7 now known as the World Charter f or Nature in 1982 . Paragraphs 4 and 11 are particularly rele vant: ‘4. Ecosystems and organisms, as well as the la nd, marine and atmospheric resources that are utilised by Man, shall be managed to achieve and maintain optimum s ustainable productivity, but not in such a way as to endanger the integrity of those other ecosystems or species with which they coexist’. ‘11. Activities which might have an impact on natur e shall be controlled, and the best available technologies tha t minimise significant risks to nature or other adverse effect s shall be used; in particular: (a) activities which are likely to cause irrevers ible damage to nature shall be avoided;’ Again, this resolution like all GA Resolutions is n ot binding in itself but can and does contribute to custom. 3.2 Multilateral Agreements on the Law of the Sea and Conservation 3.2.1 The harvesting of shrimp within and beyond na tional jurisdiction is also subject to international regim es. 3.2.2 The 1958 Convention on Fishing and Conservati on of Living Resources on the High Seas state, Article I, echoes the general obligation identified above: ‘.. all states have the duty to adopt or to co-oper ate with other states in adopting, such measures for their r espective nationals as may be necessary for the conservation of the living resources of the high seas.’ 3.2.3 The United Nations Convention on the Law of t he Sea (UNCLOS 1982), sets out the balance of rights and o bligations upon coastal states in respect of the conservation of living resources in the exclusive economic zone: Article 61(2) ‘the coastal state taking into accoun t the best scientific evidence available to it shall ensure th rough proper conservation and management measures that th e maintenance of the living resource in the exclusive economic zone is not endangered by over-exploitation ...

(4) ‘In taking such measures the coastal state shal l take into consideration the effects on species associate d with or dependent upon harvested species, with a view to ma intaining or restoring populations of such associated or depe ndent species above levels at which their reproduction ma y become seriously threatened’. Article 62, on the utilization of the living resour ces continues the balance between exploitation and cons ervation, incorporates the objectives of the convention and m andates the application of a regulatory regime which, inter alia, includes; ‘(c) regulating seasons and areas of fishing, the t ypes and sizes and amount of gear, and the types, sizes and number of fishing vessels that may be used.’ 3.2.4 In so far as sea turtles, being migratory, ma y also be resources of the high seas, Article 117 states; ‘all states have the duty to take, or to co-operate with other states in taking, such measures for their res pective nationals as may be necessary for the conservation of the living resources of the high seas.’ 3.2.5 Becoming more specific, Article 119(1) state s ‘in determining the allowable catch and establishing ot her conservation measures for the living resources of t he high seas states shall: ...(b) take into consideration the effects on speci es associated with or dependent upon harvested species with a view to maintaining or restoring populations of suc h associated or dependent species above levels at whi ch their reproduction may become seriously threatened.’ 3.2.6 The 1995 FAO Code of Conduct on Responsible Fisheries contains a number of specific recommendat ions. Article 6 sets out the general principles of the Co de, which although not legally binding in itself is attached to the body of international law by agreement of the parti es and specifically to UNCLOS 1982 (see Article 3), it sta tes: ‘(1) States and users of living aquatic resources s hould conserve aquatic ecosystems. The right to fish carr ies with it the obligation to do so in a responsible manner, so as to

ensure effective conservation and management of the living aquatic resources.’ 3.3. Relevant Regional Agreements designed to protect sea turtles: 3.3.1 Additionally, the Respondent and the Complain ant States have demonstrated their commitment to fulfil ling their obligations under customary international law or alternatively have contributed to the formation of rule by co-operating through regional agreements in order t o protect the sea turtle from extinction. 3.3.2 The ASEAN Agreement on the Conservation of Nature and Natural Resources provid es for the protection of endangered marine species: ‘Article III Species-Genetic Diversity (1) The contracting parties shall, wherever possibl e, maintain maximum genetic diversity by taking action aimed at ensuring the survival and promoting the conservatio n of all species under their jurisdiction and control. (2) To that end they shall adopt appropriate measur es to conserve animal and plant species whether terrestri al, marine and freshwater, and more specifically ... (c) protect endangered species ... (e) take all measures in their power to prevent the extinction of any species or subspecies.’ See also articles 4 on sustainable use, in particul ar 4(1)(b), 4(2)(c) and (d), and genetic diversity 3(3 )(b). 3.3.3 Both Malaysia and Thailand are party to this agreement. 3.3.4 The Inter-American Convention for the Protect ion and Conservation of Sea Turtles establishes nationa l conservation programmes for the protection of sea t urtles, and specifically mandates the use of TEDs. 3.4 National law and policy 3.4.1 The Complainants have displayed in their writ ten memorials evidence of domestic law and policy desig ned to protect sea turtles. See for example in respect of the

submissions of Thailand, paragraphs 20, 21 and 23 a nd, in respect of Malaysia paragraphs 15, 16, 17 and 18, i n the case of Pakistan paragraphs 17 and 18 and in the case of India, paragraph 19. Malaysia states in paragraph 18 ‘Mala ysia’s commitment is evident by the actions taken both dom estically and internationally in order to protect these endan gered species from extinction’. Each one of the Complaina nts has within its national law, recognised the obligations upon them to protect these turtles and their habitats, althou gh by failing to protect turtle habitats in the coastal z one and by failing to arrest the decline in turtle populations , they are in breach of those obligations. 3.4.2 These national laws are consistent with international obligations freely undertaken by the Complainant States and are replicated by those Stat es which have turtle populations in or passing through their territorial waters. The US is one of those States a nd has taken steps to conserve sea turtles including throu gh the measures which are now the subject of this dispute. 3.5. Decisions of the International Court of Justice 3.5.1 The judgements of the International Court of Justice may of themselves, in certain circumstances , become the source of obligation upon States, but this brie f refers to them in order to display the existence of the ge neral and specific rules referred to above. 3.5.2 The Icelandic Fisheries Case (UK v Iceland) 1 974 ICJ Reports, 3, determined that: ‘both states have an obligation to take full accoun t of each other’s rights and any fishery conservation measure s the necessity of which is shown to exist ... it is one of the advances in international maritime law, resulting f rom the intensification of fishing that the former laissez faire treatment of the living resources of the sea in the high seas has been replaced by a recognition of a duty to hav e due regard to the rights of other states and the needs of conservation for the benefit of all.’18. 3.5.3 In Judge Dillard’s concurring opinion he stat es that: ‘in the light of the practice of states and the wid espread and insistent recognition of the need for conservat ion measures, the principle it (1958 Geneva Convention on Fishing and Conservation of the Living Resources of the Hig h Seas)

announces may qualify as a norm of customary intern ational law’19. 3.5.4 In the Legality of the Threat of Nuclear Weap ons Case, 1996, ICJ 35 ILM, 809, the Court adjudged and declared, at para 29: ‘The court also recognises that the environment is not an abstraction but represents the living space, the qu ality of life and the very health of human beings, including generations unborn. The existence of the general ob ligation of States to ensure that activities within their ju risdiction and control respect the environment of other States or of areas beyond national control is now part of the co rpus of international law relating to the environment’ 3.5.5 At paragraph 32 the Court refers to an order made by the ICJ in the Nuclear Tests Case, (Order of 22 September 1995, ICJ Reports 1995, p.306, para 64). The Court stated that its order was ‘without prejudice to the obliga tions of States to respect and protect the natural environme nt’. 3.5.6 In a passage which is strikingly relevant to the enterprise upon which the WTO Panel is now embarked , the ICJ stated further at para 33: ‘The Court finds that while the existing internatio nal law relating to the protection and safeguarding of the environment does not specifically prohibit the use of nuclear weapons, it indicates important environmental facto rs that are properly to be taken into account in the contex t of the implementation of the principles and rules of the l aw applicable in armed conflict.’ 3.5.7 The reasoning of the ICJ can readily be exten ded to the trade and environment conflict. The principles and rules applicable in the area of trade relations must take account of existing international law relating to the prote ction and safeguarding of the environment. 3.5.8 It is worth noting the views of Judge Weerama ntry in the Legality of Nuclear Weapons Case, as to what those principles are and how they are to be understood as a matter of law. He states (at p.905 1996 ILM): ‘The environment, the common habitat of all member states of the United Nations, cannot be damaged by any one or more members to the detriment of all others. Reference h as already been made, in the context of the dictates of public

conscience (section III.6, supra), to the fact that the principles of environmental protection have become ‘so deeply rooted in the conscience of mankind that they have become particularly essential rules of general internation al law’(Report of the International Law Commission on the work of the 28th Session. Yearbook of International Law Commission 1976.Vol II, part II, p.109, para 33)... ‘Environmental law incorporates a number of prin ciples which are violated by nuclear weapons. The principl e of intergenerational equity and common heritage princi ple have already been discussed. Other principles of environ mental law, which this Request enables the Court to recogn ise and use are the precautionary principle, the principle of trusteeship of earth resources, the principle that the burden of safety lies upon the author of environmental dam age the burden of making adequate reparation to those affec ted... ‘These principles of environmental law thus do not depend upon for their validity on treaty provisions. They are part of customary international law. They are part of th e sine qua non of survival.’ 3.6 Precautionary principle 3.6.1 The precautionary principle is referred to he re for three reasons: (1) it is a principle of internatio nal environmental law governing the conduct of the part ies to this dispute given the particular facts of this cas e; (2) it is relevant to the interpretation of Article XX GAT T; and (3) because it is consistent with how the law of the WT O generally has developed to accommodate scientific justifications for regulations affecting trade bet ween Members. 3.6.2 It is strongly arguable that this principle h as become part of customary international law. It woul d therefore stand as a complementary and additional o bligation binding on the Parties to this dispute. Principle 1 5 of the 1992 Rio Declaration states: ‘in order to protect the environment, the precautio nary approach shall be widely applied by states accordin g to their capabilities. Where there are threats of serious or irreversible damage lack of full scientific certain ty shall not be used as a reason for postponing cost-effecti ve measures to prevent environmental degradation.’

3.6.3 The arguments below on Article XX exceptions invite analysis of the necessity of the measure undertaken . It is the contention of this brief, that the Panel when c onducting this analysis ought to bear in mind the precautiona ry principle, in that the subject matter of the disput e concerns a resource which is highly endangered and threatene d with extinction. 3.6.4 The Sanitary and Phytosanitary Agreement 1994 adopts a form of precautionary approach (see Artic les 7-12) in order to safeguard human or animal life. 3.6.5 The threat of turtle extinction is serious an d irreversible, there is sufficient evidence to ident ify the threat of such damage states are therefore obligate d to take cost-effective measures to prevent such damage from occurring. 3.7 Treaty Provisions and Customary Rule 3.7.1 In the context of this case treaty provisions have contributed to the specificity of the customary rul e. The principles of international environmental law are t herefore applied to the particularly pressing and immediate task of protecting sea turtles from extinction. By virtue o f their customary legal character they are binding on all m embers of international society. The Complainant states are t herefore as compelled to respect their obligations in this r egard as the United States. Each of the parties to this dis pute are compelled to have regard to these principles in the context of the trade policy, fisheries law and practice and indeed all such matters within their jurisdiction and cont rol. Finally, the Panel and the Appellate Body of the WT O, an organisation subject to international law, are obli ged to have due regard to the body of international law as a whole, including international environmental law (see also Article 31(3)(c) Vienna Convention on the Law of Treaties). 3.8. Reasonable and Appropriate Measures 3.8.1 States are entitled to take reasonable and appropriate measures in order to a) comply with the ir own obligations and (b) to seek the compliance of other s with their obligations in international law. 3.8.2 This is a case where the US has taken reasona ble measures to comply with its own obligations to cons erve sea turtles by virtue of their protected status in inte rnational law. Furthermore, the US legislation in requiring t he use of

turtle excluder devices (TEDs) has taken an appropr iate and reasonable measure to seek the compliance of the co mplainant states with their obligations under customary inter national law. 3.8.3 The evidence set out in the facts section abo ve demonstrates without doubt that the drowning of sea turtles in shrimp trawl nets is the single greatest human-r elated cause of sea turtle mortality and contributes signi ficantly to the endangerment of the species. 3.8.4 The institutions governing the international instrument relating to the conservation of endanger ed species have carefully gathered evidence of the decline of species (see CITES new listing criteria) and it is upon thi s evidence that states take collective measures to protect spe cies ‘threatened with extinction’. 3.8.5 Section 609 of the Endangered Species Act is informed both by the general evidence of sea turtle decline and the specific evidence of the relationship betw een shrimp fisheries and sea turtle mortality. Section 609 is designed to ensure that US domestic markets do not contribut e to the destruction of endangered sea turtles protected und er international law. 3.8.6 The reasonable measures adopted by the US ens ure the effectiveness of the rule which exists for the benefit of the whole of international society and not simply t he US. 3.9. Good faith 3.9.1 All parties to this dispute are required to a ct in good faith in implementing the general and specific obligation, supported by both custom and treaty to protect the conservation status of endangered sea turtles. 3.9.2 The principle of good faith is a general prin ciple of law binding on all members of international soci ety. States are required to act in good faith when imple menting their international legal obligations: the parties to international agreements relating to the conservati on of sea turtles are required to act in a manner which is co nsistent with the object and purposes of those agreements. 3.9.3 Section 609 is consistent with the United Sta tes acting in good faith to meet the objectives of the customary

international law rule identified above and specifi cally the Convention on International Trade and Endangered Sp ecies. 3.9.4 Whilst the Convention on International Trade and Endangered Species provides no specific authority f or the US legislative action, a state acting in good faith to fulfil the object and purposes of CITES would be aware of the rate of decline of sea turtles and would give effect to the rule providing protection for endangered sea turtles by acting in a manner consistent with arresting the decline. 3.9.5 The intended effect of the Appendix I listing of sea turtles is to prevent their decline towards ext inction. One of the factors which the parties to CITES will take into account in determining whether the species is threa tened with extinction and therefore should be listed on Append ix I is the rate of decline of the population of the specie s whether caused by a direct hunt or indirectly by, for examp le, fishing practices. 3.9.6 It is worth noting that Article XIV of CITES specifically authorises stricter domestic measures to be taken by States consistent with the object and purp oses of the agreement. This extends to the conditions for t aking specimens and restricting or prohibiting trade in s pecies not listed in the Appendices. 3.10 Estoppel 3.10.1 The Complainant states are ‘estopped’ from asserting rights under WTO law which are inconsist ent with obligations freely entered into to protect the cons ervation of sea turtles, and which prevent the United States from fulfilling her obligations under the same rule. 3.10.2 The principle of estoppel is an equitable pr inciple recognised in all major legal systems and is accept ed as a general principle of international law [see the Tem ple of Preah Vihear ICJ Report 1962 page 6 and the Eastern Greenland case PCIJ, series A/B No 53, (1933)]. In the Chorzo w Factory case PCIJ, series A, No 9, page 31 (1927) the Perm anent Court of International Justice stated: ‘a principle generally accepted in the jurisprudenc e of international arbitration, as well as by municipal courts, is that one Party cannot avail himself of the fact tha t the other has not fulfilled some obligation or has not had recourse to some means of redress, if the former Pa rty has,

by some illegal act, prevented the latter from fulf illing the obligation in question ...’ 3.10.3 Professor Schachter, eminent international l awyer, Professor at Columbia University and one of the dra fting committee for the UN Charter, has argued (in Resolu tions of the General Assembly as Evidence of Law, 178 Rec de s Cours 114-21 (1982-V), cited in Henkin, Pugh, Schachter, Smit International Law, 2nd Edition, p.131): ‘Estoppel may be subsumed under the general principle of good faith, which can be construed to impose on States that had voted for the voluntary code of dut y to refrain from inconsistent acts vis-à-vis complying States. It is also pertinent that States may voluntarily under take obligations even in an informal way (as decided in the Eastern Greenland Case and indicated more recently in the Nuclear Tests Case). Consequently, it can be argued that declarations in support of a United Nations code in volve an undertaking at least to refrain from incompatible a ction’ 3.10.4 If this is the case for General Assembly Resolutions passed by a majority, or informal state ments made by Ministers in public, the undertaking is that muc h more strict in circumstances where there is a customary international law rule in operation. 3.10.5 The complainant states have acquiesced in th e formation of the rule identified above - not to use their territory in such a way as to undermine the conserv ation status of an endangered species. Sea turtles have, with the participation and support of the complainant states , become the object of international legal protection. There is no evidence of state practice denying the existence of the rule. There is no evidence of any of the complainant stat es, opposing the listing of these turtle species on App endix I of CITES, or challenging the substance of the rule ide ntified by the International Court of Justice. 3.10.6 As has been argued above, the complainants a re under an obligation not to knowingly allow their te rritory to be used, or persons within their jurisdiction or co ntrol to act, in such a way as to undermine the conservation status of the endangered sea turtles. Given that obligation, one which by virtue of the custom obliges the United States t o act in the same manner, the Complainants cannot make use o f another rule of international law which would have the effe ct of undermining the obligations both upon them and the United States to conserve turtles. The complainants by fai ling to

adequately protect endangered sea turtles from the consequences of shrimp fisheries are in breach of international law and are denied any redress that w ould otherwise be available to them by virtue of any bre ach of international trade law by the United States. 3.10.7 An alternative way of putting this argument is derived from another general principle of law, name ly, no man can be allowed to take advantage of his own wro ng/nullus commodum capere de sua injuria propria. In the Advi sory Opinion on The Interpretation of Peace Treaties (2n d phase) (1950) ICJ Reports, p.221, at p.244, cited in Bin C heng General Principles of Law, Grotius, 1987, p.151), J udge Read using the term ‘estoppel’ was of the view that: ‘In any proceedings which recognised the principles of justice, no government would be allowed to raise an objection which would let such a government profit from its o wn wrong.’ 3.10.8 The Complainant states cannot profit from th e freedom, established by law, to export shrimp into the US market, whilst failing to adequately protect turtle s, especially in the coastal zone, from shrimp fisheri es, so that their populations are in decline and threatene d with extinction. 3.11 Obligations arising under the Convention on Biological Diversity 3.11.1 Obligations arising under the Convention on Biological Diversity and subsequent practice (inclu ding relating to the management of marine and coastal bi ological diversity) should be taken into account by the pane l. 3.11.2 The Convention on Biological Diversity (CBD) was adopted in 1992, and entered into force in December 1993. To date, there are 169 Parties20. The CBD is a multil ateral environmental agreement directly relevant to this t rade dispute. It is a Treaty providing specific rules ap plicable to the facts of the case and evidence of custom. It supports arguments made above of both a general and specific obligation binding upon all the complainant parties , for in so far as the CBD lends content to a customary rule s it binds even in the absence of ratification. 3.11.3 The CBD contains a number of provisions appl icable to the subject matter of this dispute. It explicitl y provides that states have the sovereign right to exploit the ir own resources, pursuant to their own environmental poli cies,

coupled with the responsibility to ensure that acti vities within their jurisdiction or control do not cause d amage to the environment of other states or of areas beyond national jurisdiction. (Article 3). 3.11.4 The provisions of the Convention apply to biological diversity within the national jurisdicti on of Parties, and also to processes and activities carri ed out under the jurisdiction or control of Parties both w ithin national jurisdiction and beyond the limits of nati onal jurisdiction. 3.11.5 The principal substantive provisions of the Convention of relevance to this dispute are contain ed in Articles 5, 6, 7, 8 and 10. 3.11.6 Article 5 requires parties to co-operate wit h other parties directly or through international organisat ions in respect of areas beyond national jurisdiction and o n other matters of mutual interest or the conservation and sustainable use of biological diversity. 3.11.7 Under Article 6, entitled ‘General Measures for the Conservation and Sustainable Use’, Parties are, int er alia, in accordance with their particular conditions and capabilities, to integrate, as far as possible and as appropriate, the conservation and sustainable use o f biological diversity into relevant sectoral and cro ss sectoral plans, programmes and policies. 3.11.8 Article 7 requires Parties to identify comp onents of biological diversity important for its conservat ion and sustainable use having regard to the indicative lis t of categories set out in Annex I. Annex I includes, in ter alia, species and communities which are threatened, as we ll as those species which are of social, scientific or cu ltural importance, and those of importance for research in to the conservation and sustainable use of biological dive rsity, such as indicator species. Under Article 7, Parties are also to identify processes and categories of activities which have or are likely to have significant adverse impactson the conservation and sustainable use of biological dive rsity. Where significant adverse effects on biological div ersity have been determined pursuant to Article 7, then Pa rties are required to regulate or manage the relevant process es and categories of activities (Article 8(l)). 3.11.9 Article 8 also contains a range of other in- situ conservation obligations, including: as far as poss ible and

appropriate, to regulate or manage biological resou rces important for the conservation of biological divers ity whether within or outside protected areas, with a v iew to ensuring their conservation and sustainable use (Ar ticle 8(c)); to promote the recovery of threatened specie s, inter alia, through the development and implementation pl ans or other management strategies (Article 8(f)); and to develop or maintain necessary legislation and/or other regulat ory provisions for the protection of threatened species and populations (Article 8(k)). 3.11.10 Article 10(b) requires Parties, as far as p ossible and as appropriate, inter alia, to adopt measures r elating to the use of biological resources to avoid or minimis e adverse impacts on biological diversity. 3.11.11 The Parties to the CBD have identified mari ne and coastal biological diversity as a priority, address ing the issue at the first meeting of the CBD’s Subsidiary Body on Scientific, Technical and Technological Advice (SBS TTA) in 1995, and the second meeting of the Conference of t he Parties (COP) in 1995. The second meeting of the COP adopte d decision II/10 on the Conservation and Sustainable Use of Ma rine and Coastal Biological Diversity. The Jakarta Ministeri al Statement on the Implementation of the Convention o n Biological Diversity, adopted at the second meeting of the COP in 1995, reaffirmed the critical need for the C onference of the Parties to address the conservation and sust ainable use of marine biodiversity, and urged Parties to in itiate immediate action to implement the decisions adopted on this issue. In accordance with decision II/10, a three y ear work programme on marine and coastal biodiversity is cur rently being developed under the CBD, which is likely to i nclude as an element the sustainable use of marine and coasta l living resources. [A meeting of experts, held to assist in development of the work programme in 1997, identifi ed as a high priority task a need to develop ecosystem leve l approaches to the sustainable use of marine and coa stal living resources, including the identification of k ey variables or interactions for the purpose of assess ing and monitoring, inter alia, ecosystem effects including by catch, and harmful fishing practices.21] 3.11.12 Decision II/10 of the COP also took note of , inter alia, the FAO Code of Conduct for Responsible Fishe ries, and supported its implementation, including by Parties the CBD, in ways that are consistent with and conform to the objectives of the CBD22. The FAO Code of Conduct on Responsible Fisheries, adopted by consensus by the FAO

Conference in 1995, sets out principles and interna tional standards for responsible practices with a view to ensuring the effective conservation, management and developm ent of living aquatic resources, with due respect for the ecosystem and biodiversity. The Code notes as a general princ iple that the right to fish carries with it the obligation to do so in a responsible manner so as to ensure effective cons ervation and management of living aquatic resources (Article 6.1). It also notes that management measures should not only ensure the conservation of target species, but also of spe cies belonging to the same ecosystem or associated with or dependent upon the target species. (Article 6.2). I t provides that selective and environmentally safe fishing gea r and practices should be further developed and applied, and that where proper selective and environmentally safe fis hing gear and practices exist that should be recognised and a ccorded a priority in establishing conservation and managemen t measures for fisheries (Article 6.6). The Code also explicit ly addresses the use of selective fishing gear in rela tion to fisheries operations (Article 8). In this regard th e Code provides: ‘7.5.1 States should require that fishing gear, me thods and practices, to the extent practicable, are sufficien tly selective so as to minimise waste, discards, catch of non-target species, both fish and non-fish species, and impacts on associated or dependent species ... in this rega rd, fishers should co-operate in the development of sel ective fishing gear and methods. States should ensure that information on new developments and requirements is made available to all fishers. 7.5.2 In order to improve selectivity, States shou ld, when drawing up their laws and regulations, take into ac count the range of selective fishing gear, methods, and strat egies available to the industry ... 7.5.4 International co-operation should be encoura ged with respect to research programmes for fishing gear sel ectivity, and fishing methods and strategies, dissemination o f the results of such research programmes and the transfe r of technology’ 23. 3.12 Article XX of GATT 3.12.1 Article XX of GATT is available to the US a s an exception to Articles I, II, and XI.

3.12.2 The United States by its regulatory action has put itself in breach of GATT, unless it can avail itsel f of an exception. Article XX of the GATT permits limited e xceptions to the requirements of the GATT. It provides inter alia; ‘subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between c ountries where the same conditions prevail, or a disguised r estriction on international trade, nothing in this agreement s hall be construed to prevent the adoption or enforcement by any Contracting party of measures ... (b) necessary to protect human or animal or pl ant life or health; ... (g) relating to the conservation of exhaustible nat ural resources if such measures are made effective in co njunction with restrictions on domestic production or consump tion.’ 3.12.3 In the Reformulated Gasoline Case (Internati onal Trade Law Reports/ITLR Volume 1 pp.8-85) the Appell ate Body has stated the modern interpretation of the Article XX exception. This decision is clearly superior as a f orm of legal authority to any of the previously unadopted panel decisions whose facts may otherwise seem relevant. The two Tuna/Dolphin disputes involving the extra-territori al application of the US Marine Mammal Protection Act were determined pre-1994 and before the introduction of the WTO and the new Dispute Settlement Understanding. In Re formulated Gasoline, both the Panel and the Appellate Body fou nd that clean air was an exhaustible natural resource and t hat the measures to protect clean air in the Clean Air Act 1990 were legitimate environmental policy measures and theref ore could be fitted in under Article XX(b) or (g). 3.12.4 The general approach of the Appellate Body w as that of accommodating free trade objectives with an appr eciation and understanding of the need for conservation of e xhaustible natural resources; ‘the phrase ‘relating to the conservation of exhaus tible natural resources’ may not be read so expansively a s seriously to subvert the purpose and objective Arti cle III:IV, nor may Article III:IV be given so broad a reach as to effectively emasculate Article XX(g) and the pol icies of interest it embodies. The relationship between the affirmative commitment set out in eg Articles I, II I and XI and the policies and interests embodied in the Gene ral

Exceptions listed in Article XX can be given meanin g within the framework of the General Agreement and its obje ct and purpose by a treaty interpreter only on a case by c ase basis by careful scrutiny of the factual and legal contex t in a given dispute without disregarding the words actual ly used by the WTO members themselves to express their intent and purpose.’ (1996 ITLR Volume I at p76) . 3.12.5 The Appellate Body made its decision ultimat ely by reference to the chapeau or head note to Article XX stressing that the failure of the United States to co-operate with other affected states amounted to unjustifiable discrimination and a disguised restriction on inter national trade. The Appellate Body went on to stress that it s decision : ...’does not mean, or imply, that the ability of an y WTO member to take measures to control air pollution or , more generally, to protect the environment, is at issue. That would be to ignore the fact that Article XX of the General Agreement contains provisions designed to permit im portant state interests - including the protection of human health as well as the conservation of exhaustible natural res ources - to find expression ... WTO members have a large mea sure of autonomy to determine their own policies on the env ironment (including its relationship with trade), their envi ronmental objectives and the environmental legislation they e nact and implement. So far as concerns the WTO, that autonom y is circumscribed only by the need to respect the requi rements of the general agreement and the other covered agreeme nts.’ (1996 ITLR Volume I at p83). 3.12.6 This reasoning must at the same time be plac ed in the context of another statement of the Appellate B ody in the Reformulated Gasoline Case: ...’customary rules of interpretation of public int ernational law which the Appellate Body has been directed, by Article III (2) of the DSU, to apply in seeking to clarify the provisions of the General Agreement and the other c overed agreements of the Marrakesh Agreement establishing the World Trade Organisation (the WTO Agreement). That direct ion reflects a measure of recognition that the General Agreement is not to be read in clinical isolation from public international law.’ (1996 ITLR Volume I at p76) 3.12.7 The Reformulated Gasoline Case established t he modern test of ‘relating to’, in that, the measure concerned must be more than incidentally or inadvertently aim ed at

conservation of exhaustible natural resources. It c annot reasonably be argued that the US legislation in iss ue here (S609) is not related to conservation of sea turtle s, given that formulation of the test. 3.12.8 The balance of rights and obligations betwee n Members, which any Panel, or the Appellate Body, mu st take into account in settling a dispute, will include ob ligations arising under general international law, specific o bligations relevant to the facts in issue, and the balance bet ween Articles I, III, XI and XX. The Preamble to the WTO agreement will be a relevant text, as will the practice of th e DSU since 1994 (more than pre-1994) and the Panel shoul d have regard to Article 31(3)(c) of the Vienna Convention on the Law of Treaties (81LM 679, 1969). 4. Conclusion: Facts and Law 4.1 The facts cited above establish the following: (i) sea turtles are highly migratory animals that do not respect national boundaries. Turtles have tr avelled between the complainant states; (ii) sea turtles are a global resource and/or part of the common heritage of humankind, and/or subject to the stewardship of all international society depending on your particular perspective, but they are not wholly and exclusively the resource of any single state; (iii) sea turtle mortality rates increase rapidly d uring the shrimping season; (iv) the interaction between the gestation and matu ration period for turtles, fisheries-related mortality and population declines indicate that conservation prog rammes must incorporate the use of selective fishing gear, as protection of coastal habitats, fishing restriction s and breeding programmes are not sufficient to prevent f urther declines in turtle populations; (v) the turtle excluder device is inexpensive and e ffective. It has a proven ability to save turtle life and doe s not affect the shrimp catch which remains economically viable; and (vi) in order to further assuage concerns about an y economic impact of TEDs, these devices have been provided by the US

Government through their aid programme and US corpo rations trading in shrimp have offered to provide such devi ces free of charge to their suppliers including those within the Complainants’ jurisdictions. 4.2 In sum, the US legislation (Section 609) is cle arly related to the conservation of exhaustible natural resources. The measures chosen by the US have been made effect ive in conjunction with restrictions on domestic productio n or consumption. The US shrimp fishery has been under a n obligation to use TEDs for approximately six years and has done much to develop the technology to the point at which it has become cheaper and more effective. 4.3 The facts established above make it clear beyon d doubt that the measure is necessary to protect turtles fr om shrimp fisheries. There is no more effective measure than the application of the TED, a measure which is designed to protect a global resource and to remove any incenti ves provided by access to a large market for states to ignore their obligations under international law by failin g to protect such a resource. The international communit y has determined the necessity of taking measures, includ ing trade measures, to protect sea turtles and whilst it has not authorised the US measure through some specific dec isions agreed multilaterally, the US has acted in a manner consistent with its obligations and has taken reaso nable measures to reflect the will of the international c ommunity. 4.4 There is nothing in the reasoning of the Appell ate Body in the Reformulated Gasoline case which would inhib it the United States from proclaiming the necessity of the measure designed to protect turtle health, even outside US jurisdiction, or its desire to legislate for the co nservation of a living resource threatened with extinction. Th e Appellate Body will however look closely at the hea dnote to Article XX and judge whether the United States has acted in a manner which is transparent, justifiable and not in any way arbitrary. 4.5 Given the facts stated above it is clear beyond doubt that there is an urgent situation requiring signifi cant intervention by the international community, includ ing the actions of individual states, to prevent a valued s pecies from disappearing in consequence of, in large part, shrimp fisheries. The evidence put forward by the complain ants as to the spiritual and/or cultural worth of the turtle a dds a layer of value to that identified by the US legisla ture in promulgating the legislation which is subject to co mplaint.

4.6 It cannot reasonably be argued that fulfilling an obligation arising under customary international la w, requiring consistent and uniform usage over a perio d of time, through a reasonable and effective measure, could b e arbitrary or unjustifiable. 4.7 The US has invited co-operation to protect thes e species through the use of TEDs. Three of the Complainant s tates (Malaysia, India and Pakistan) have refused to part icipate in any multilateral process to promote the use of TEDs to protect sea turtles. 5. Endnotes 1 All species of marine turtle are included in CIT ES Appendix 1: the Green, the Olive Ridley, the Kemps Ridley, the Leatherback, the Loggerhead, the Hawksbill and the Flatback. All but the flatback are listed in Append ices and II of the Convention on the Conservation of Migrato ry Species of Wild Animals. All species are listed in the 199 6 IUCN Red list as ‘critically endangered’, ‘endangered’ or ‘vulnerable’. 2 All 5 species are listed in Appendix 1 to the B onn Convention on the Conservation of Migratory Species of Wild Animals. 3 Chan and Liew, (citing Pritchard 1973) in ‘Decli ne of the Leatherback Population in Terengganu, Malaysia 1956-95’ - Chelonian Conservation and Biology 1996.2 (2) 196 -203 4 Ibid. 5 Population Models and Structure’. Crouse and F razer, in Biology and Conservation of Sea Turtles, ed Karen B jorndal, USA 1995. 6 A stage-based population model for loggerhead se a turtles and implications for conservation’. Crouse , Crowder and Caswello. Ecology 68(5) 1987, pp 1412-1423. 7 Ibid. 8 The Experiments on Turtle Excluder Devices (TEDs ) for Shrimp Trawl Nets in Thailand: Southeast Asian Fish eries Development Center.

9 Recent events in Thailand show that there is a g reat gulf between the local fishing population and the c ommercial trawlers who persist in using illegal pushnets. In a recent incident, a group of local fishermen were shot at b y the trawler they approached, which was using a pushnet. 10 Mortality of olive ridley turtles due to incide ntal capture in fishing nets along the Orissa Coast, Ind ia., by B Pandav, B.C. Choudhury and C.S. Kar Oryx Vol 31 (1) January 1997. 11 Ibid. 12 Incidental catch of Sea Turtles in India: Centra l Marine Fisheries Research Institute, Cochin 682 014. 13 Report on Workshop on TED. 11-14 November 1996 , Paradip. Organised by Dept of Fisheries, Govt of Orissa and Project Swarajya, Cuttack. 14 Impacts of Shrimp Trawl Fishing from TTFD Insta llation: Contribution paper, Fisheries Economic Division, De partment of Fisheries. 15 See National Marine Fisheries Service: Foreign TED Technology Transfer Program Activity. 16 A Preliminary Estimate of the Payoff to Investi ng in a Turtle Excluder Device for Shrimp Trawls: J.E. Ease ley, Marine Economist. (Report prepared for Monitor Int ernational and The Center for Environmental Education 1982) - produced in cooperation with the National Marine Fisheries S ervice. 17 IUCN Amphibia-Reptilio - Red Data Book, Part I (IUCN, 1982). 18 ICJ Reports of Judgments 1974, p31. 19 ICJ Reports of Judgments 1974, p69. 20 India and Malaysia are Parties to the Conventi on. Ratification of the Convention by Thailand is under way, see BNA International Environment Reporter, 23 July 199 7 at 724. 21 UNEP/CBD/SBSTTA/3/Inf.1, Report of the First Mee ting of Experts on Marine and Coastal Biological Diversity, Jakarta, Indonesia, 7-10 March 1997, Annex V, pp25-26. 22 Decision II/10, para 4.

23 NB There is a section in the Code on responsibl e international trade, stating, inter alia, that prov isions of the Code should be interpreted and applied in accor dance with principles, rights and obligations established in t he WTO Agreement (Article 11.2 et seq). Notes 2 All specied of marine turtle are included in CIT ES Appendix 1: the Green, the Olive Ridley, the Kemps Ridley, the Leatherback, the Loogerhead, the Hawksbill and the Flatback. All but the flatback are listed in Append ices and II of the Convention on the Conservation of Migrato ry Species of Wild Animals. All species are listed in the 199 6 IUCN Red list as ‘critically endangered’, ‘endangered’ or ‘vulnerable’. 2 All 5 species are listed in Appendix 1 to the B onn Convention on the Conservation of Migratory Species of Wild Animals. 3 Chan and Liew, (citing Pritchard 1973) in ‘Decli ne of the Leatherback Population in Terengganu, Malaysia 1956-95’ - Chelonian Conservation and Biology 1996.2 (2) 196 -203 4 Ibid. 5 Population Models and Structure’. Crouse and F razer, in Biology and Conservation of Sea Turtles, ed Karen B jorndal, USA 1995. 6 A stage-based population model for loggerhead se a turtles and implications for conservation’. Crouse , Crowder and Caswello. Ecology 68(5) 1987, pp 1412-1423. 7 Ibid. 8 The Experiments on Turtle Excluder Devices (TEDs ) for Shrimp Trawl Nets in Thailand: Southeast Asian Fish eries Development Center. 9 Recent events in Thailand show that there is a g reat gulf between the local fishing population and the c ommercial trawlers who persist in using illegal pushnets. In a recent

incident, a group of local fishermen were shot at b y the trawler they approached, which was using a pushnet. 10 Mortality of olive ridley turtles due to incide ntal capture in fishing nets along the Orissa Coast, Ind ia., by B Pandav, B.C. Choudhury and C.S. Kar Oryx Vol 31 (1) January 1997. 11 Ibid. 12 Incidental catch of Sea Turtles in India: Centra l Marine Fisheries Research Institute, Cochin 682 014 13 Report on Workshop on TED. 11-14 November 1996 , Paradip. Organised by Dept of Fisheries, Govt of Orissa and Project Swarajya, Cuttack. 14 Impacts of Shrimp Trawl Fishing from TTFD Insta llation: Contribution paper, Fisheries Economic Division, De partment of Fisheries. 15 See National Marine Fisheries Service: Foreign TED Technology Transfer Program Activity. 16 A Preliminary Estimate of the Payoff to Investi ng in a Turtle Excluder Device for Shrimp Trawls: J.E. Ease ley, Marine Economist. (Report prepared for Monitor Int ernational and The Center for Environmental Education 1982) - produced in cooperation with the National Marine Fisheries S ervice. 17 IUCN Amphibia-Reptilio - Red Data Book, Part I (IUCN, 1982) 18 ICJ Reports of Judgments 1974, p31. 19 ICJ Reports of Judgments 1974, p69. 20 India and Malaysia are Parties to the Covnenti on. Ratification of the Convention by Thailand is under way, see BNA International Environment Reporter, 23 July 199 7 at 724. 21 UNEP/CBD/SBSTTA/3/Inf.1, Report of the First Mee ting of Experts on Marine and Coastal Biological Diversity, Jakarta, Indonesia, 7-10 March 1997, Annex V, pp25-26 22 Decision II/10, para 4. 23 NB There is a section in the Code on responsibl e international trade, stating, inter alia, that prov isions of

the Code should be interpreted and applied in accor dance with principles, rights and obligations established in t he WTO Agreement (Article 11.2 et seq). This brief was written by James Cameron and Fiona D arroch, with assistance from Jacob Werksman, Ruth Mackenzie and Philippe Sands, all of the Foundation for International Environmental Law and Development (FIELD), London. The authors gratefully acknowledge the assistance of all those people and institutions who helped them in th eir research. They drew on David Kaczka’s preliminary analysis of this dispute, and thank Charlie Arden-Clarke, De bbie Crouse, Marydele Donnelly, Scott Eckert, Jeanne Mor timer, Peter Pritchard, Elizabeth Salter, Sue Wells and o thers who commented on an earlier draft. Special thanks are due to Margaret Enstone of FIEL D for her work throughout the project. Authors address: Foundation for International Envir onmental Law and Development (FIELD) 46-47, Russell Square, London WC1B 4JP, United King dom Tel: + 44 171 637 7950; Fax: + 44 171 637 7951 Related publications available from WWF Internation al: The General Agreement on Tariffs and Trade: Environ mental Protection and Sustainable Development, Discussion Paper, November 1991 South-North Terms of Trade, Environmental Protectio n and Sustainable Development, Discussion Paper, February 1992 International Trade, GATT and the Environment, Posi tion Paper, May 1992 The Multilateral Trade Organization: A Legal and Environmental Assessment, Research Report, September 1992 The Uruguay Round’s Technical Barriers to Trade Agr eement, Research Report, January 1993 Green Protectionism, Discussion Paper, February 199 4 The Conclusion and Ratification of the GATT Uruguay Round Agreement, Joint Statement, WWF/OXFAM, March 1994 Sustainable Development and Integrated Dispute Sett lement in GATT 1994, Discussion paper, June 1994

Intergovernmental Panel on Trade and Sustainable De velopment , Position Statement, October 1994 Agriculture in the Uruguay Round: Implications for Sustainable Development in Developing Countries, Discussion Paper, January 1995 The UN Biodiversity Convention and the WTO TRIPs Ag reement, Discussion Paper, June 1995 Taxes for Environmental Purposes: The scope for bor der tax adjustment under WTO rules, Discussion Paper, October 1995 Dangerous Curves: Does the Environment improve with Economic Growth, Research Report, February 1996 WWF, Greenpeace and FoE, Joint Statement on the Rel ationship between the WTO and Multilateral Environmental Agre ements, Position Statement, July 1996 Trade Measures and Multilateral Environmental Agree ments: Backwards or Forwards in the WTO, Legal Brief, September 1996 The WTO Committee on Trade and Environment - Is it Serious’ Critique , December 1996 The OECD Multilateral Agreement on Investment, Brie fing, March 1997 Other titles available on request Edited by: Charles Arden-Clarke Desktop layout: Cover Illustration: Hild Glattbach Published September 1997 by WWF-World Wife Fund for Nature (formerly World Wildlife Fund), 1196 Gland, Switzer land. Any reproduction of this publication must mention the t itle and credit of the above-mentioned publisher as the righ tful owner. WWF Legal Brief