In Search of a Policy Formula for Marine Turtle Conservation in the South East Asian and Indian Ocean Region

 Sali Jayne Bache

Abstract

Since 1998 there have been three significant international policy developments concerning sea turtle bycatch in shrimp and prawn trawls. The first of these was the WTO decision that the U.S. shrimp embargo law, whereby overseas traders are subject to the same restrictions as apply to domestic fishers, does not violate the GATT. The second was the move by major NGOs to establish a labelling program for turtle friendly shrimp, similar to the successful dolphin safe tuna scheme. Thirdly, an Inter-American treaty emerged, aimed at generating a regional response for minimising the impacts of fishing upon marine turtles. On the domestic level, Australia has drafted a recovery plan under the Endangered Species Protection Act, to reduce fishing and other impacts upon marine turtles. This chapter outlines these recent developments, and their implications for turtle conservation in the Indian Ocean and ASEAN region. A summary of the lessons that can be learned is provided, and the trends and future directions of sea turtle bycatch minimisation policy for the South East Asian region are discussed.

Introduction

Bycatch has been defined as the incidental take of non-target species, or those towards which there is no directed fishing effort. Concern over fisheries bycatch has gained in profile over the last decade, and several prominent cases concerning marine wildlife bycatch dominated the 1980s and 1990s. These include the issue of large scale driftnets, dolphin bycatch in purse- seine nets, seabird bycatch in longline operations, and marine turtle capture in prawn trawls. Notwithstanding the more recent elevation of new policy concerns over the impacts of fishing, such as the bycatch of commercial fish species and the impacts of fishing on benthic fauna, the issue of marine wildlife bycatch has been neither solved, nor has it dissipated.

A relatively simple technological solution to the problem of sea turtle bycatch in shrimp trawls was devised. Although not providing a long term solution to turtle population decline, gear modifications allowed a legally satisfactory reduction in the incidental capture of sea turtles. This chapter he policy measures which have been used variously by the United States of America and other governments and environmental non-governmental organisations (NGOs) in an attempt to try and reduce the bycatch of sea turtles in shrimp/prawn trawling operations through the uptake of TEDs.

Because of the highly migratory nature of sea turtles, conservation relies upon international action. Three strategic approaches have been used in an attempt to influence and direct international behaviour .These are market- based mechanisms, a regulatory regime, and consensus agreement. More specifically, these have taken the form of a consumer preference labelling scheme, a policy of unilateral embargo action, and a multilateral negotiated convention. Each of these are discussed in turn below. An examination of the inadequacies of each of these methods, as well as consideration of their benefits, leads to the conclusion that it is the negotiated convention operating in collusion with the other two mechanisms that offers the brightest hope for the longer term protection of sea turtles. Before reviewing the operation of these mechanisms, the gear modification devices, known as TEDs, are discussed.

Sea turtle bycatch and TEDs

Contrary to popular perception, the trawl bycatch of sea turtles is not a new issue. It first was brought to the attention of policy makers in the United States in the late 1960s1. At that time, tens of thousands of sea turtles were being captured in prawn trawl nets in US waters alone (Fox 1990). 

The initial reaction to the problem was to devise a technological solution on the basis that gear modifications were preferred by shrimpers to the alternative of time area closures. Gear trials were to a large extent successful, and the turtle exclusion or trawl efficiency device or TED was born. The TED was a modification of an extant device that had been designed so as to eliminate the catch of unwanted neon flying squid that clogged up trawl nets.

TEDs are made of hard metal grids or soft webbing panels that can be placed in trawl nets so as to allow captured sea turtles to escape (Fig. 1). When correctly installed, TEDs can reduce sea turtle bycatch by as much as 97 % without causing gear damage or significantly affecting the catch level (Fox 1990). In addition to turtle exclusion the benefits of TEDs are said to include:

  •  reduced fish and invertebrate bycatch and destruction;

  • increased value of prawns by a reduction in the crushing of these from bycatch;

  • lowering of fuel and equipment costs by decreasing the mass to be towed in nets;

  • the relatively low cost of TEDs (between $US5O and 400).

Due in large part to the success of the TED in reducing sea turtle by- catch, policy measures placed the primary onus of sea turtle bycatch reduction on the increased use of these devices. The success of the device as a means of reducing sea turtle bycatch, while retaining a very high proportion of the shrimp harvest, has not, however, led to a level of adoption of TEDs that may have first been imagined. In response to both domestic and international resistance to the implementation of TEDs, interest groups and agencies in the US have, over time, sought new ways to encourage the use of this turtle bycatch minimisation gear.


Fig. 1: A Turtle Excluder Device Fitted in a Trawl Net (Courtesy of the Bureau of Resource Sciences, Department of Agriculture Fisheries & Forestry, Commonwealth Government of Australia).

It is for this reason, as a means by which to promote the widespread uptake of TED technology, that the labelling program, the unilateral sanctions law and a regional convention were pursued.

Labelling programs - Turtle-Safe shrimp

One option that is becoming increasingly popular as a means to mitigate environmental impacts of fishing in general is that of labelling programs (Fig. 2). These allow consumers to decide what tradeoffs they are willing to make between the additional cost of purchasing a labelled item, and the environmental impact they are willing to condone.


Fig. 2: An example of a label used by the Sea Turtle Restoration Project.

In theory, such programs allow for what economists describe as bringing an externality into the internal cost of the product. That is to say, the cost of the TED, or more correctly the cost of ensuring that shrimp is harvested with minimum turtle mortality, is added into the cost of bringing the  product to the table. The processor is willing to pay extra for the shrimp because this allows access to a label which will fetch a greater price on the open market. The extra income that the shrimper earns for his/her catch then contributes to the cost associated with gear modification. 

Undeniably, the concept is a good one. Labelling is based upon an essentially democratic market system, and displays the desired principle of equity. Indeed, even the WTO in its turtle shrimp ruling commented that they did not believe that such a scheme would violate free trade rules (Fox 1990).

Although the structure of the turtle safe campaign in the US is not the only way labelling programs can be run, it does provide a good indication of the pitfalls of any such scheme. The US' turtle safe shrimp label is provided by an environmental non-government organisation free to processors and trawlers. These in turn agree to the random boarding of their vessel by NGO representatives to check on the existence and correct use of TEDs (Fox 1990).

Notwithstanding the theoretical merits, in practice turtle safe shrimp does not fare so well. There are several common criticisms that are levelled at the turtle safe program. The first of these is concerned chiefly with the level of compliance with the TED law currently practiced by US shrimpers. All US shrimp trawlers deemed by the government to pose a significant threat to sea turtles are required by law to use a TED in both State and Federal waters. Moreover, all wild catch shrimp imported into the US is required to be turtle safe. Thus the utility of labelling some shrimp as turtle safe is brought into question. That is, if all shrimp caught in the US are turtle safe then why is there a separate scheme where only a fraction of vessels are authorised to make such a claim. A prominent US sea turtle NGO, Earth Island Institute, countered this criticism with the claim that there is such a high level of TED non-compliance that entering into such agreements, whereby the shrimpers view the use of TEDs as financially profitable, is of benefit to all concerned (Fox 1990). Indeed, the US National Marine Fisheries Service do not deny that some TED non-compliance does occur.

The harshest critics of the scheme go further than questioning its necessity, and suggest that the turtle safe scheme is simply a fund raising mechanism for NGOs proffering these labels. Although certainly raising the organisation's profile, Earth Island Institute have stated that there is no charge levied to the fishers, the processors or the merchants of the products, and thus this claim is essentially unsubstantiated (Fox 1990).

Another criticism is that the turtle safe shrimp label is very difficult to verify. That the label even needs verification assumes that a substantial level of non-compliance with TED laws does in fact occur, and that 'turtle safe' is not a characteristic of all shrimp sold in the US. Given such a belief, sufficient safeguards need to be in place so as to ensure, to the satisfaction of consumers, that any product carrying a turtle safe claim has been caught in a manner which is not harmful to turtles. With regard to shrimp, this is not a simple task. Unlike tuna (which is strongly associated with the dolphin friendly label), shrimp is not a canned product. It is sold fresh or frozen, and the attachment of a permanent verifiable label presents a problem. Moreover, instead of having several key processors, shrimp is supplied from countless small, often dockside, operations (Fox 1990). This dispersed processing regime makes it impossible with any level of confidence to verify that shrimp marked turtle safe actually fulfil that claim. Other than through the threat of legal action for false marketing, it is impossible to prevent any individual from placing a label saying "turtle friendly shrimp' on their package. Thus the eco-labelling of shrimp products presents a scenario open to a high level of fraudulent use of the labels.

Finally, the overall merit of focusing on a single issue has been questioned. The impacts upon sea turtles of other fishing methods make turtle safe shrimp labelling a somewhat incomplete remedy to the problem of sea turtle bycatch mortality. For example the impacts of both driftnet and longline fishing upon sea turtle populations are of concern. Indeed, it has been suggested that the impact of longlining on sea turtle populations may be equal to the threat posed by trawling, although due to the delayed maturity of sea turtles the effect of such activities may not be apparent for some time yet (Fox 1990). In addition to fishing, attention must be afforded to other impacts such as subsistence harvesting of sea turtles and habitat destruction, issues which labelling programs are ill equipped to handle. Thus, although with refinement turtle safe labels may offer a significant contribution to the adoption of TED technology and the reduction of trawl bycatch, the use of labelling alone is not sufficient to achieve broader sea turtle conservation and preservation goals. The greatest merit of the program is its ability to alter the way in which sea turtle bycatch is considered: that is, not as an impact to be managed, but rather as an environmental cost of shrimping that needs to be ameliorated by the industry. Internalising sea turtle by- catch and accepting TEDs as a basic part of shrimping gear and passing the cost along to consumers, is a step towards acknowledging that the cost of minimising environmentally deleterious actions should be borne by those that benefit from the activity.

Unilateral action - Trade embargoes

In 1989 the US Congress enacted a law that required foreign nations be certified as having sea turtle conservation standards equivalent to the those of the US as a condition for the importation of shrimp. The 'Conservation of Sea Turtles: Importation of Shrimp' law (hereafter Section 609)2 created a scheme whereby equivalence could be measured and embargoes imposed upon non-compliant nations. Even at the time of enactment there was little argument that sanctions were designed to protected sea turtles alone, but were also a measure to protect US shrimpers who were under pressure from an overcapitalised fishery, with rising fuel costs and decreasing catch prices (Dyer & Moberg 1992, Mergavio et. al. 1993). What followed this legislative action was a long maze of court decisions and appeals: internationally the law was queried under WTO rules, and domestically NGOs challenged the legality of the administration's interpretation. Domestic cases considered both the range of the law's application and the legitimacy of the Department of State's certification schemes.

Embargo action was first restricted to those nations which shared US stocks of sea turtles. Subsequent to a domestic court challenge this was expanded to all nations. Secondly, in an attempt to limit the impact upon trade relations, the Department of State implemented a system of a shipment-by-shipment assessment of turtle safe comparability. Given the April 1999 United States' Court of International Trade decision, this arrangement is however, likely to be short lived. Now, ten years later, a potential resolution to the turtle shrimp debate has emerged.

A new arrangement to administer the law was proposed by the US Department of State. Harvesting nations wishing to export to the US would be required to ensure that TEDs were used by all commercial shrimp trawl vessels operating as a distinct fishery in a clearly defined geographic region large enough to yield a significant conservation benefit (DOS 1999). For example, the Northern Prawn Trawl off the north west Australian coast. Although unlikely to be considered ideal by any of the stakeholders, governmental or citizen, this was a compromise proposal, and was the most likely scheme proffered to date that may satisfy all involved. Apparently due to a lack of NGO support, this proposed arrangement has not progressed beyond gestation. Meanwhile legal challenges continue in the US courts.

Debate on the validity and utility of unilateral sanctions, both in general and in respect of the turtle-shrimp issue, has been long-running. The diverse viewpoints as to the effectiveness of unilateral sanctions as a means to reduce the global take of sea turtles in prawn trawls are discussed below.

Firstly, there are the US shrimpers who contend that product embargo is a means of levelling the playing field' that is, creating one single standard for all shrimp sold on the US domestic market. The obvious retort to this is that such a measure is protectionist, and it is this question that has been at issue for international trade panels (WTO 1998). An alternative position which also argues against the claims of US shrimpers, is that their view fails to consider socio-economic, cultural or technical disparities between the nations involved. Indeed, this is one of the arguments that opponents to the general use of unilateral trade embargoes offer. They claim that equity requirements are not met in instances of wealthier nations imposing their standards upon poorer and less technologically-advanced countries. In an era when differences in nations' economic and resource wealth are routinely accommodated in negotiating texts of conventions, such blatant disregard of these principles is not looked upon favourably by many members of the international community.

The second argument for unilateral action is supported by several government agencies, academics and trade experts, as well as some environmental and consumer NGOs. These advocates hold that the government, acting on behalf of the citizens of the United States, has a right to determine the environmental impact is acceptable in the production of items for US consumption. The US should thus not be forced by trade liberalisation rules to allow the sale of an imported item that compromises its domestic environmental standards. Such an argument is based upon a fundamental assumption that the importation of a product into another country is a privilege not a right, a proposition somewhat in antithetical to the current trend of open market access.

On the other hand, a different alliance of agencies, NGOs and scientists oppose use of unilateral sanctions as applied in the turtle shrimp scenario. The primary argument here is the actual utility of unilateral action, as compared with the potential outcomes of alternative investments of time and resources. Opponents to unilateral action suggest that efforts would be better directed towards assisting uncertified nations with technology and training. The main proponent of unilateral sanctions in the US, Earth Island Institute, rebukes this argument with the observation that foreign nations have first to be willing to learn and adopt the new technologies: moreover nations that have been recipients of technology transfer did so only after the threat of sanctions became poignant (P. Fugazzotto, pers. corn.). Although certainly true in some situations (as seen by the initial failure then rapid certification of Caribbean nations3) this is certainly not a rule. For example, the transfer of TED expertise and training to the Indian state of Orissa was commenced in 1994, prior to the extension of the embargo beyond the American region4. And rather than encourage this action to spread to additional Indian states, the US embargo and WTO case saw a temporary cessation of the program.

Although difficult to adapt to broader sea turtle conservation issues, unilateral trade sanctions to reduce the bycatch of sea turtles in prawn trawling operations have one highly sought-after characteristic that has much to offer in forming an international sea turtle protection regime. That is, especially when implemented by the United States, unilateral embargo action is inherently enforceable in nature.

Inter-American sea turtle treaty

The Inter-American Convention for the Protection and Conservation of Sea Turtles (IAC) was the outcome of only two years of negotiation. It closed for signature on the 31 December 1998 and is still awaiting its requisite 8 ratifications to become active. The IAC was initiated in response to the US' annual shrimp certification process.   Its purpose was to remedy the awkward situation that the US Department of State found itself in due to Congress enactment of Section 609, and offered the mirror benefit to the Latin American States as a means of ridding themselves of the bothersome process of US certification.

The convention expanded from what was initially referred to as a TEDs treaty, to a broad sea turtle conservation and preservation agreement, with the primary objective to promote the protection, conservation and recovery c of sea turtle populations and the habitats on which they depend, based on the best available scientific evidence, taking into account the environmental, socio-economic and cultural characteristics of the Parties' (Article II).

The merits of the Convention itself are many, and it achieves several things that the previous two mechanisms discussed above have failed to do:

  •  The treaty acknowledges the environmental, cultural and socio-political differences between signatory nations in both the preamble and text of the convention;

  • Measures are included which promote bi- and multilateral cooperative activities and the establishment of regional management arrangements such as regional accords and management plans. An example of such a pact is that of the tripartite agreement formed between Costa Rica, Nicaragua and Panama;

  • It expressly considers the role of science, providing for the creation of a scientific committee and the promotion of scientific research; and

  • Broader sea turtle welfare issues such as that of subsistence takes and habitat conservation are considered.

The Convention has been lauded for its creation of a regime of international cooperation for the management and conservation of a shared marine resource. Although focused on a flagship endangered and highly migratory marine species it is hoped that perhaps other, less popular but no less endangered, common resources will be afforded similar attention in the future (see Talbot 1996). Indeed, the IAC has been supported by a breadth of interests including the international sea turtle community, fisheries organisations and regional conservation associations (Frazier 1999).

Perhaps masked by its broad support, negotiating the IAC was not altogether trouble-free. One article of contention, that has led some US NGOs to refuse to support the treaty, is the issue of trade measures. The convention requires all States to act in accordance with the 1994 WTO Agreement completed in Marrakesh under Article XV(1). Given the enforcement measures provided under the relevant trade agreement, the need for a WTO subservience clause is questionable, it is functionally redundant and thus must be seen as little more than a statement of censure for the American government's use of unilateral actions.

Other problems encountered during IAC negotiation, or which may occur once the Convention is activated include:

  • Insufficient notice to those responsible for the foreign affairs of negotiating nations, thus making signature by the requisite date impossible for several otherwise interested countries;

  • Uncertainty surrounding the issue of funding and infrastructure support, and whether the treaty will provide adequately for the passage of the cost of minimising sea turtle bycatch along to the consumer;

  • Omission of any reference to the impacts of other fisheries upon turtles, for example gillnetting and longlining, evidence of which suggests the impacts could be equally severe to that of trawling (Crouse 1999);

  • Concerns over sufficient representation of small scale subsistence fishing operations;

  • Questions of whether the scientific committee will have authority and autonomy to act without fear of political pressure and how effective the committee will be in extracting accurate scientific information from signatory nations (Frazier 1999).

Perhaps of most significance is the issue of enforcement. Although plans and reporting mechanisms are included in the convention there are no enforcement measures beyond those left up to signatory nations. Each country is responsible for policing the Convention within its boarders and on vessels flying its flag. Treaties, and in particular environmental treaties (though there are some notable exceptions to this, for example CITES5), are notorious for their ineffectiveness and lack of enforceability (see Boyle 1991). In this regard the IAC may benefit from the US Section 609 TED provision. Notwithstanding the theoretical and practical problems associated with unilateral sanctions, they have an acknowledged ability to both precipitate the negotiation of, and ensure compliance with, international conventions. Thus in this scenario, where effective enforcement measures are absent from the IAC, US embargo provisions may act as a default enforcement mechanism, encouraging widespread adherence to negotiated arrangements.

Precedent for the use of multilateral embargoes by the US to encourage participation in and compliance with international fisheries conservation measures exists. The International Dolphin Conservation Program (IDCP) concerns dolphin bycatch in tuna purse-seining in the Eastern Tropical Pacific Ocean. The IDCP used overt bargaining whereunder the US promised to remove tuna embargoes so long as the signatory nations complied with the provisions of the agreement. Although having undergone some teething trouble, overall this scheme appears to be effective. It is said to work because of its two pronged approach using both incentive and threat of reprisal (M. Hall, pers. com.). That is, it is based upon the idea of some net gain for complying and some net loss for violating the convention (the provision or revocation of import access to the US market).

Notwithstanding its shortcomings, the IAC, because of its more comprehensive conservation provisions, is the preferred solution to have come out of the search for an instrument capable of affecting sea turtle bycatch minimisation in the Americas. Moreover, operating in conjunction with trade sanctions, the IAC has a very good chance of realising a significant reduction in turtle take.

A way forward in the Indian Ocean region

The Indian Ocean basin is bordered by 38 coastal states and four continents. The region has experienced significant growth in its commercial fisheries, both from local entries and in attracting displaced vessels from other oceans. Although efforts between select groups of nations have occurred, such as ongoing efforts by the ASEAN group of nations and a number of bilateral arrangements, to date no region-wide cooperative arrangement for shrimp harvesting, and therefore unsurprisingly nor for turtle bycatch, has been entered into.

As it had done in the Latin American region, the US government has for some time been trying to encourage Indian Ocean / ASEAN region nations engaged in prawn trawling to create a sea turtle regime. Once again, the primary motivation seems to be to avoid the need for the Section 609 certification process. Moreover, the formation of an Indian Ocean sea turtle convention would reduce the likelihood of further appeals against the US under the WTO, as well as their chance of success. The U.S. has been criticised by the WTO for failing to attempt sufficiently to negotiate agreements prior to the imposition of trade embargoes (WTO 1998). The problem the US faces however is that it does not want to appear intrusive, the US has no territories in the Indian Ocean / ASEAN region and thus only a peripheral role in sea turtle conservation in the region.

There are obvious benefits to be gained by the nations in this region should they choose to pursue the creation of such an arrangement. In particular is the removal of any US shrimp import embargoes and the prevention of further prohibitions (Section 609 regulations specify that should shrimp importing nations seen to be stalling on the creation of comprehensive sea turtle bycatch reduction schemes, then the U.S. will again consider banning the import of that nation's products). Perhaps the most significant benefit though, would accrue directly to sea turtles through their improved and coordinated protection. Indeed, the creation of such a treaty points to a scenario of few, if any, losers. According to the US Department of State, two countries have expressed an interest in hosting an initial sea turtle convention meeting, one is Taiwan and the other Australia. As the lead nation for ASEAN sea turtle discussions, Malaysia has also been suggested to perhaps have an active interest in the role.

To date, there has been an assumption that any multilateral sea turtle arrangement would, as with the IAC, be an independent negotiated treaty. Other alternatives are available. The most appropriate of these is the creation of a sea turtle related agreement under the auspice of the Convention on the Conservation of Migratory Species of Wild Animal (CMS) or Bonn Convention6. The lack of consideration afforded to this as a possible and even preferable option is perhaps best explained by the US lack of party to the Convention.

Five species of sea turtle occurring in the Indian Ocean / ASEAN region have been listed under both appendices of the Bonn Convention for some time now. This action however has been little more than a gesture to date. Having been formed in 1979 and entered into force generally in 1983, the CMS initially gained a reputation as paper convention. It has however received considerably more attention in the 1 990s, with all of its seven agreements being entered into in this decade.

Only a very small number of Asian States are signatory to the Convention. Even regarding those nations in the region that are members, there appears to be scant implementation of the CMS, as seen in the lack of southern hemisphere-based conservation agreements. For example, although Australia has nominated the listing of a number of species, including by- catch related species of albatross and cetaceans, until July 1999 no implementing legislation was in place for the Bonn Convention. There is some indication of this trend altering both in Australia with the enactment of new legislation, and abroad as indicated by discussions concerning the creation of an agreement for a southern hemisphere albatross species (D. Hykle, pers. com.).

The Bonn Convention provides several benefits including infrastructure, financial and secretariat support, although to accept an issue as complex and large as sea turtle conservation it is probable that some additional resources will be still required. The listing of several species of sea turtles has already been achieved. Once listing is completed, nations are encouraged to create regional accords with which to protect the listed species. Arrangements generated thereunder require a process of signatory and ratification, and would provide a similar frameworks to that of a stand alone convention. Notably, the absence of many Indian Ocean / ASEAN region nations as members of the Convention does not make an arrangement thereunder prohibitive. Agreements formed under Article IV are open to all range states, not just Bonn Convention signatories. Moreover, an arrangement formed under a broad umbrella agreement with the goal of protecting migratory species may have more persuasive ability with respect to compliance than would a stand alone arrangement. Further, the placement of a regional sea turtle agreement under this scheme may lead to the additional windfall of new nations acceding to the Bonn Convention itself.

Regardless of the specifics, a multilateral arrangement is the next logical step in the progression towards sea turtle protection and will offer a significant contribution to sea turtle conservation and management in the Indian Ocean region.

Acknowledgements

I would like to thank Drs. Nathan Edwards and Jack Frazier for their helpful comments on earlier drafts of this paper.

References

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1 In 1970, in response to several years of lobbying, and reflecting a growing awareness of both the endangered status of sea turtles and the ongoing threat posed by prawn trawling, the hawksbill, leatherback, green and Kemp's ridley sea turtles were listed as endangered throughout their ranges under the Endangered Species Conservation Act (Pub. L. No. 91-135, 83 Stat. 275 (1969) (codified at 16 USC 688 et seq); listed 13 October 1970 under 35 FR 16047; 1 June 1970 under 35 FR 8495, 2 December 1970 under 35 FR 18320).

2 Pub. L. No. 101-162, § 609, 103 Stat. 1988, 1037 (1989) (codified as amended at 16 U.S.C.A. § 1537).

3 Initially only two out of the 16 nations in the region met US certification requirements. Within several years 14 of the 16 nations were certified.

4 Communication to Rolland Schmiften, Assistant Administrator for Fisheries, NOAA, U.S. Department of Commerce, from Biju Patnaik, Chief Minister, Orissa State, India, 14 November 1994.

5 The Convention on International Trade in Endangered Species of Fauna and Flora, (1973) 12 ILM 1085.

6 Convention on the Conservation of Migratory Species of Wild Animals (Bonn Convention), 1980 ILM 15.