WWF Amicus Brief to WTO: Shrimp-Turtle Dispute
Page
Contents
Executive Summary2
1.Introduction4
2.Conservation Facts5
3.Law and Policy13
3.1International Law13
3.2Multilateral Agreements on the Law of the
Sea and Conservation15
3.3Relevant Regional Agreements designed to
protect sea turtles16
3.4National Law and Policy17
3.5Decisions of the International Court of Justice17
3.6Precautionary Principle19
3.7Treaty provision and Customary rule19
3.8 Reasonable and Appropriate Measures19
3.9 Good Faith20
3.10 Estoppel20
3.11Obligations Arising Under the Convention on
Biological Diversity22
3.12Article XX of GATT24
4.Conclusion: Facts and Law26
5.Endnotes28
WWF Amicus Brief to WTO
Shrimp-Turtle Dispute
Executive Summary
WWF submits this amicus brief on the WTO Shrimp-Turtle dispute as a non-governmental organisation with offices and affiliates in countries around the globe, including in the Respondent and Complainant countries. The brief aims to ensure that the WTO Dispute Settlement System has before it both the scientific and other technical facts relevant to the conservation of sea turtles; and the relevant international, regional and national law and policy governing the conservation of sea turtles. These arguments underline the need for the establishment of an expert review group under Article 13 of the DSU to advise the Panel.
The sea turtle species impacted by shrimp fishing in the Complainant countries are highly migratory species, and thus are part of the environment of other States, of areas beyond national jurisdiction and are part of the common heritage of humankind. Scientific research shows that they cannot be effectively conserved without protection of the sexually 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 that current shrimp fishing practices in these habitats threatens these species1 survival.
Turtle Excluder Devices (TEDs), the use of which is prescribed by the US measures, have been shown to be effective in conserving these sea turtle species. Studies and trials, including preliminary ones in the waters of at least two of the Complainant countries, have demonstrated this. TEDs have been shown to increase the efficiency of shrimp fishing trawls, can be manufactured locally at low cost, and are more practical and less complicated to implement than other conservation measures. The US has undertaken transfer of TED technology, and has invited cooperation of the Complainant countries under a multilateral process to protect these sea turtles, including through the use of TEDs.
A general obligation arises from Customary international law, and can be derived from treaty law, that requires states to supervise and control activities within their jurisdiction that undermine the conservation status of endangered species. These obligations are derived from, among others, the 1972 Stockholm Declaration on the Human Environment, the 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 demonstrate and display the existence of the general and specific rules referred to above, and reinforce the obligation of states to respect the environment of other states or of areas beyond national control (the Global Commons). National law and policy in all four Complainant countries recognises these international obligations to protect these turtles and their habitats, though implementation failures leave those countries in breach of these obligations.
The current WTO Dispute Panel, and any future Appellate Body are obliged to have due regard to the body of international law as a whole, including international environmental law, according to the Vienna Convention on the Law of Treaties. 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" states cannot assert rights under WTO law which are inconsistent with obligations to conserve sea turtles, or which prevent 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 dispute 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 organisation 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 that 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 national law and policy governing the conservation of sea turtles. The letter and spirit of the WTO Dispute Settlement Understanding (DSU), and international law generally, compels the Panel and any Appellate Body to take these facts and laws into account when clarifying WTO Members? rights and obligations. [Vienna Convention on the Law of Treaties, Article 31; WTO DSU, Articles 3.2 and 13].
1.2On the basis of the facts and law presented, WWF will demonstrate that:
(i) all States have a general obligation to ensure that activities within their jurisdiction respect the environment of other States and of areas beyond the limits of national jurisdiction;
(ii) sea turtles are a migratory species, and are thus part of the environment of other States and of areas beyond 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 obligation on all States to protect them;
(iv) furthermore, the Complainant States have, under various international agreements, undertaken the specific obligation to protect sea turtles;
(v) the activities undertaken by the Complainants will contribute to the further endangerment of sea turtles, and are likely to lead to their extinction; and
(vi) in the circumstances, the Respondent, and States generally, are entitled to take reasonable and proportionate trade-related measures to protect sea turtles.
1.3In the course of its arguments, WWF seeks:
(i) to draw to the attention of the panel, and in the event of an appeal, the Appellate Body, the relevance of international environmental law to the settlement of 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 the reasoning of the Panel in the unadopted decisions known as the Tuna/Dolphin Panels;
(iv) to demonstrate the utility of a formal right of intervention for non-governmental organisations in disputes before the WTO;
(v) to display any additional scientific arguments demonstrating the correlation between shrimp fisheries and turtle mortality so as to maintain a level of protection for sea turtles which would ensure their survival in the wild; and
(vi) to argue for the establishment of an expert review group under Article 13 of the DSU to advise the panel.
2.Conservation Facts
2.1Seven species of sea turtles are listed as endangered. Five of these species occur in the complainant countries, and face extinction1. These species are all migratory. Legally a migratory species is one where a significant proportion of the numbers/population move cyclically and predictably across one or more national jurisdictional boundaries2. Historic-ally five species have nested, foraged and migrated along the coasts of each of the Complainant countries: the green, olive ridley, hawksbill, leatherback and loggerhead. In their submissions, each of the Complainant countries allege that their conservation policies for sea turtles are adequate to protect the species in question without using by catch avoidance in their fishing fleets. Each Complainant country has refused to join a Multilateral Environmental Agreement (MEA) involving commitment to the use of the Turtle Excluder Device (TED).
2.2This brief will show that there are compelling and immediate reasons for the Panel seized of this dispute to call for scientific experts, to advise them impartially on the biological and ecological aspects of this dispute. These aspects, by reason of their urgency and their proximity to the heart of the issue, cannot be isolated from the WTO decision which has been requested by the complainant countries. The Panel has authority to call for scientific 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 contention that the Panel must inform itself of all the relevant facts before coming to a decision which has legal effect, and that such facts clearly extend beyond those relating to
the trade in shrimp.
2.3Sea turtles are highly migratory species. The Sea turtles move through a variety of habitats and in and out of the waters of various nations during their lifetimes as they move from developmental to foraging and eventually to reproductive habitats and back again. There is a substantial body of evidence documenting the migratory habits of sea turtles especially in breeding adults. In the complainant countries, researchers and other observers have found turtles tagged in Karachi on the coast of Gujarat, India. Sea turtles tagged on the coast of Malaysia have been recovered from Taiwan, Japan and Hawaii (USA). Sea turtles tagged on the Orissa coastline in India have been recovered later in Sri Lanka. Those hatchlings which mature into gravid (egg-bearing) females and survive, remigrate during the course of their adult lives, sometimes after one year, more often after two to five years, as they return to distant nesting sites.
2.4 Sea turtles can exhibit strong philopatry (nest site fidelity), but a mature female may range to other nesting 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 because 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, obliging 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.
2.5Sea turtles occur in the same marine ecosystem as shrimp. Their feeding habits can be connected, as for 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 been done on the sea turtle population in the waters of the Eastern USA, which indicates that the sea turtle should correctly be considered as a biological indicator of the health of the marine eco-system which it inhabits.
2.6The first crucial issue on which the Panel should inform itself is the pattern of the sea turtles reproductive cycle. There is a prestigious body of international research, in which there is little disagreement. As turtles are both long-lived and migratory, a long period (twenty years) is required for accurate information to be collated and accurately analysed. The conclusions which may be extrapolated from the available analyses are as follows:
2.7A sea turtle?s life may be conveniently divided into seven stages, which reflect its age, habits and reproductive capacity. These stages are identified as eggs/hatchlings, small juveniles, large juveniles, subadults, novice breeders, first time remigrants and mature breeders.
(I)The potential life-span for a sea turtle is many decades.
(ii) Sexual maturity comes late in the life cycle of the sea turtle - the olive ridley, for example, does not achieve maturity until it reaches 20 to 40 years of age5. A female turtle will nest on average three times in one season 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 high 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 stage is not as detrimental to the survival of the population as is mortality at later stages in the life cycle. Experts 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 and 35 years, the pelagic phase, one to several years in length, before entering the juvenile and sub-adult populations, and ultimately the population of mature animals.
(v)By the time a turtle reaches adulthood (after 20-40 years) it is an essential member of the population. Natural mortality among these adult animals tends to be very low, moreover, reproductive fecundity increases with the age of an adult female turtle. Under natural circumstances, once a female reaches adulthood, she will lay multiple egg clutches, usually every two to four seasons throughout her adult life. Thus human-induced mortality at this stage in the cycle is particularly harmful to the population.
(vi) Where gravid females attempting to lay eggs coincide with periods of intense unmodified trawling activity, the result is high rates of mortality amongst the adult breeding population. The temporal and spatial correlation between shrimp trawling and migrating turtles is barely acknowledged by the Complainant countries. On the Orissa coast, for example, two nesting periods occur annually, in December/January and March/April. The monsoon season runs from June to September, and the period from November to April/May is marked by peak trawling activity. Unmodified trawling practices have been responsible for the deaths of several thousand adult olive ridleys each year since the late 1980?s, when large-scale trawling activities commenced.
2.8All the stage-based population models compiled to identify the stages at which measures could be taken to halt declines in population indicate that even 100% hatch success on specific nesting beaches will not prevent extinction, if mortality among mature animals is high6.
2.9There is a dearth of understanding of the population dynamics of sea turtles: the evidence is that current management practices are focused on the least responsive life stage, ie eggs on nesting beaches. This type of conservation is an easier matter: there is an obvious apparent result, ie visible hatchlings, which, the literature indicates, lulls people into supposing that the decline has been halted. Turtle hatchling populations, according to the evidence, are being carefully nurtured in some complainant countries, but the mortality rate of the sea turtle population as a whole continues to rise. The stage population models indicate that although in many parts of the complainant countries, conservation of the nesting beach habitat is in place, and hatchling mortality is considerably reduced, the sea turtle population is nevertheless speeding towards extirpation, 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 being drowned in the fishing net. The Panel needs to be informed: it needs both to question and to understand the ratio between hatchling and adult breeder. Research shows, without question, that where a hatchling is worth one, an adult breeder is worth at least 600 in reproductive terms7.
2.10Biologists have accordingly concluded that a reduction in mortality in the later stages of the sea turtle?s life-cycle is pivotal to its survival. The sea turtle occurs in waters around the coast line of the complainant countries, at considerable distances from the shore-lines and nesting beaches. It is this unacknowledged and unprotected part of its habitat which is currently mis-managed in a way which threatens the species survival.
2.11The complainant countries do not adequately address the evidence relating to the conservation status of turtles which indicates that the primary threat to sub-adult and adult sea turtles comes from the fishing practices of the commercial 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 determine is the effect of shrimp fisheries on sea turtles in the coastal zone.