There are seven species of sea turtles. All seven are listed on Appendix I of the Convention on International Trade in Endangered Species (CITES) and granted its highest level of protection; all seven are also listed as critically endangered, endangered or vulnerable on the IUCN (World Conservation Union) Red List; and six of the seven are listed as endangered or threatened under the U.S. Endangered Species Act (the seventh has been proposed for listing). The only species that currently appears to be increasing in numbers on a global basis is the Kemp�s Ridley Turtle, identified by the IUCN in 1986 as one of the 12 most endangered animals in the world. See Marine Turtle Specialist Group/IUCN, A Global Strategy for the Conservation of Marine Turtles (1995). Despite recent modest improvement to the Kemp�s populations, it is still far below the population size needed for the recovery of the species.
Why are sea turtles in such danger of extinction? Three main threats endanger sea turtles: incidental take, direct hunting, and loss of coastal habitat. Despite their ability to remain underwater for long periods of time, sea turtles must breathe at the surface. When trapped in nets and shrimp trawls (the gear used by shrimp trawlers) sea turtles suffocate and drown. Since the 1970s, the incidental take of turtles in shrimp trawls has been identified as the single greatest cause of sea turtle mortality in commercial fisheries. K.A. Bjorndal, ed., Biology and Conservation of Sea Turtles 489-495 (1982). Turtles killed in shrimp trawls have been confirmed around the globe -- in Australia, French Guyana, Columbia, the Caribbean and South Atlantic to the Gulf of Mexico. More recently in 1995, The Marine Turtle Specialist Group of the IUCN identified reduction of mortality due to fishing trawls as its highest conservation priority. Marine Turtle Specialist Group/IUCN, A Global Strategy for the Conservation of Marine Turtles (1995). In addition to shrimp trawls, turtles also become enmeshed in other fishing gear such as longlines and gill nets. The historic cause of decline for most sea turtle species was hunting for their carapace to use as jewelry and ornaments. This has been reduced considerably through CITES protections over the last 25 years, reducing the market for turtles and relieving the pressure on direct harvesting. At the same time, however, the consumption of sea turtles as a food source has increased. Bjorndal, op. cit., at 611-612. Finally, efforts to revive the already depleted and vulnerable populations of sea turtles have been seriously hampered by major loss of nesting beaches. Sea turtles lay their eggs above the high tide line of beaches and coastal development has paved over or made inaccessible many traditional turtle egg-laying sites.
In 1996, the first international treaty to address the conservation of sea turtles was signed. The Inter-American Convention for the Protection and Conservation of Sea Turtles establishes national sea turtle conservation programs in the signatory countries. This treaty is an important first step in the global recognition of the effectiveness and importance of TEDs usage in restoring endangered sea turtle populations to health. Its structure is similar to the International Convention for the Regulation of Whaling discussed earlier in Section 1.
A regional convention, it applies throughout the Americas to land and adjacent waters of the Parties where they exercise sovereign rights. It also applies to vessels on the high seas which are registered in State Parties. Complementing the CITES prohibition on international trade, Parties to the Inter-American Convention are required to prohibit the intentional capture, retention, or killing of sea turtles as well as the domestic trade in sea turtles, their eggs, parts or products. Parties are required, to the extent practicable, to restrict human activities that could seriously affect sea turtles, especially during the periods of reproduction, nesting and migration, as well as protect and restore sea turtle habitat and nesting areas. Most important, in reducing to the greatest extent practicable the incidental harm and taking of sea turtles through fishing activities, Parties must require the use of appropriate gear including the use of Turtle Excluding Devices (known as TEDs, discussed in Chapter 16 on trade, p. x). Shrimp trawl vessels subject to a Party�s jurisdiction must use TEDs or other measures that are equally effective to protect sea turtles and do not undermine efforts to achieve the objectives of the Convention. If a Party permits measures other than the use of TEDs, it must provide scientific evidence demonstrating the lack of risk to sea turtles.
The Convention creates two bodies. The Consultative Committee reviews country reports and information relating to the protection and conservation of sea turtles and their habitats, including the environmental, socio-economic and cultural impacts of conservation measures on affected communities. It recommends changes to the Convention which may be adopted at the biennial Meeting of the Parties. All decisions must be adopted by consensus. The Scientific Committee, playing a similar role to the Whaling Scientific Committee, reviews the status of sea turtle conservation efforts and proposes recommendations for enhanced protection to the Consultative Committee based on scientific data. Overall, as with the International Convention on the Regulation of Whaling, the sea turtle Convention adopts the philosophy that highly migratory species can only be protected on an international level. The likelihood of other regional conventions or a global convention will rest in large part on the effectiveness of this Convention.
Turtle Excluding Devices (TEDs)
A TED is a fishing gear device which is inserted into an existing trawl and functions as an escape hatch to allow turtles which are caught up in a trawl net to be released, without, at the same time, releasing a significant amount of intended catch. Slanted bars guide sea turtles and other large objects out of a net through a trap door, while smaller fish swim through the bars on the device to escape the net. TEDs were developed by the U.S. National Marine Fisheries Service in the early 1980s. Early TEDs excluded 97% of the entrapped sea turtles, retained most shrimp, increased trawling efficiency, and reduced finfish bycatch by 50-60% as well. They were heavy, however, and proved unwieldy and undesirable for most shrimp fishers. By the late 1980s, a lightweight, collapsible TED had been developed, spurred by laws in some states requiring the used of TEDs. Despite major resistance and opposition from the shrimp fishing industry and many politicians, federal regulations requiring the use of TEDs were finally enacted and enforced in the early 1990s. 50 C.F.R. Parts 217, 222, 227. Shrimpers� predictions of massive economic dislocation have not occurred. Indeed, shrimp landings have risen. C.W.Taylor et al.,Construction and Installation Instructions for the Trawling Efficiency Device, NMFS-SEFC-71 (1985).
The use of TEDs by commercial shrimpers have been directly linked with significantly fewer sea turtle strandings (dead turtles washing up on beaches). The use of TEDs outside the U.S., however, remains controversial. This is a significant issue because sea turtles are highly migratory. The Kemp�s Ridley turtles that nest in Mexico mature in U.S waters. Hence protection of sea turtles solely within a single country�s waters cannot ensure conservation of that population.
There has been a growing international acceptance of the use of TEDs. Some foreign governments have shown an interest in acquiring TED technology and in developing national TED programs. The U.S Department of State and the National Marine Fisheries Service have worked to provide training in the use of TEDs, and to promote the transfer of TEDs technology. Training workshops have been held in a number of foreign nations including: Colombia, El Salvador, Panama, Costa Rica, Honduras, Mexico, Brazil, Ecuador, India, China, Thailand, and Kenya. A regional workshop was conducted in the Western Indian Ocean in early 1997.
Despite these encouraging signs of international interest in TEDs, the major force driving international interest and adoption of TEDs has nonetheless been U.S. legislation threatening trade sanctions in their absence. A 1989 amendment to the U.S. Endangered Species Act requires the U.S. government to negotiate with other countries for agreements promoting the conservation of sea turtles and, in particular, mandating the use of TEDs by their fleets if they may endanger sea turtles species protected by U.S. legislation. In reading the law below, note that the use of TEDs is not explicitly required. Why are they required in practice? Pub. L. No. 101-162, 609(a)(1)(2), 103 Stat. 1037 (1989), codified at 16 U.S.C. 1537.
(a) The Secretary of State, in consultation with the Secretary of Commerce,
shall, with respect to those species of sea turtles the conservation of which
is the subject of regulations promulgated by the Secretary of Commerce on June
(1) initiate negotiations as soon as possible for the development of bilateral or multilateral agreements with other nations for the protection and conservation of such species of sea turtles;
(2) initiate negotiations as soon as possible with all foreign governments which are engaged in, or which have persons or companies engaged in, commercial fishing operations which, as determined by the Secretary of Commerce, may affect adversely such species of sea turtles, for the purpose of entering into bilateral and multilateral treaties with such countries to protect such species of sea turtles;
(3) encourage such other agreements to promote the purposes of this section with other nations for the protection of specific ocean and land regions which are of special significance to the health and stability of such species of sea turtles;* * *
(5) provide to the Congress by not later than one year after the date of enactment of this section--
(A) a list of each nation which conducts commercial shrimp fishing operations within the geographic range of distribution of such sea turtles;
(B) a list of each nation which conducts commercial shrimp fishing operations which may affect adversely such species of sea turtles; and
(C) a full report on--
(i) the results of his efforts under this section; and
(ii) the status of measures taken by each nation listed pursuant to paragraph (A) or (B) to protect and conserve such sea turtles.
(1) In general. The importation of shrimp or products from shrimp which have been harvested with commercial fishing technology which may affect adversely such species of sea turtles shall be prohibited not later than May 1, 1991, except as provided in paragraph (2).
(2) Certification procedure. The ban on importation of shrimp or products from shrimp pursuant to paragraph (1) shall not apply if the President shall determine and certify to the Congress not later than May 1, 1991, and annually thereafter that--
(A) the government of the harvesting nation has provided documentary evidence of the adoption of a regulatory program governing the incidental taking of such sea turtles in the course of such harvesting that is comparable to that of the United States; and
(B) the average rate of that incidental taking by the vessels of the harvesting nation is comparable to the average rate of incidental taking of sea turtles by United States vessels in the course of such harvesting; or
(C) the particular fishing environment of the harvesting nation does not pose a threat of the incidental taking of such sea turtles in the course of such harvesting.
Of the 14 countries originally certified by the State Department as subject to the embargo, all agreed to participate in the TED training programs and all but French Guiana agreed to use TEDs on their shrimp fleets.
In many respects, this law is similar to amendments to the Marine Mammal Protection Act that led to the Tuna/Dolphin decisions by the GATT dispute panels in the early 1990s. As this casebook goes to press, a WTO dispute settlement panel is in the process of deciding a challenge to the amendments to the Endangered Species Act described above. The challenge has been brought by Thailand, Malaysia, Pakistan and India, all certified under the law, charging that the ban represents an invalid extraterritorial application of U.S. law that violates GATT articles. A neutral panel was appointed on April 10, 1997 to settle the dispute. The U.S. defends its law, in part, on the basis of GATT Article XX(g)
One of the world�s fastest growing industries is aquaculture -- fish farming. In fact, while Thailand and the other parties challenging the U.S. TEDs law before the WTO have large shrimp fleets, more than 70% of Thai shrimp are farmed, not caught at sea. Indeed Thai shrimp farmers claim to employ over 100,000 people and provide a major source of foreign currency through exports. Thailand escapes the US prawn ban net , Bangkok Post, June 26, 1997 , at 12. Creating artificial ponds for shrimp farming has been a major contributor to coastal pollution and the clearing of mangrove swamps in Ecuador, Thailand, India, and other countries. Mangroves provide critical nursing and feeding areas for many species. Some environmentalists fear that the drive to require TEDs on shrimp trawlers may, ironically, increase the spread of fish farming and mangrove destruction.
Industry has started responding to increased environmental criticism of shrimp farming. At the 19th meeting of the Association of Southeast Asian Nations (ASEAN) Ministers on Agriculture and Forestry, ministers unanimously agreed to the establishment of an ASEAN Shrimp Industry Task Force and signed a Memorandum of Understanding on Sea Turtle Conservation. The Task Force will be based in Thailand, defend the shrimp farming industry against environmental critics and, in alliance with Global Aquaculture Allies, an international shrimp lobby, work to develop sustainable shrimp farming. The Memorandum of Understanding seeks to adopt measures to conserve sea turtles which conform with international standards. Asean backs moves by Thai officials to aid shrimp trade: Task force approved & turtles protected, Bangkok Post, September 13, 1997, at 2. In its defense, the Thai shrimp farming industry makes two additional claims -- that shrimp farming is still a nascent industry with much to learn (similar to the poultry industry 20 years ago), and that its activities are increasing shrimp products, thereby increasing global food security. Thai environmental groups have denounced the ASEAN initatives as public relations exercises with no substance, pointing out that the shrimp sold are too expensive for the common Thai citizen to consume.
In Ecuador, shrimp farming is the country�s third most profitable industry, following oil and bananas. Mario Gonzalez, Ecuador Environment: Shrimp Industry Must Change or Die, Inter Press Service, April 24, 1997. Ecuadorian environmental groups have been fighting more tighter regulation of shrimp farming for the same reasons as in Thailand, coastal pollution and destruction of mangrove swamps. Following certification of Ecuador under the U.S. TEDs law, the Environment Ministry has focused on shrimp farming, filing charges against 10 companies. The companies are charged with violating Article 81 of the forest protection law, imposing criminal penalties for unauthorized cutting or destruction of mangroves. Ibid. India, too, has imposed strong penalties on environmentally destructive shrimp farmers. In December, 1996, India's supreme court issued an order closing coastal shrimp ponds. To publicize their concern over the environmental impacts of shrimp farming, environmental groups held a "shrimp tribunal" at the United Nations where a mock trial was held for shrimp farmers from around the world accused of "environmental crimes." Jon Christensen, Cultivating the World's Demand for Seafood; As Fish Farming Goes, It Faces Mounting Environmental Challenges, New York Times, March 1, 1997, at 35.