Multi-lateral agreements for conservation of hawksbill turtles

INTERNATIONAL INSTRUMENTS RELEVANT TO THE CONSERVATION
OF HAWKSBILL TURTLES [AND THEIR HABITATS]

(prepared by IUCN/ELC for CITES hawksbill turtle dialogue meetings held in 2001 and 2002)

SUMMARY

Hawksbill turtles, like all extant marine turtle species, are both migratory species (subject to influences caused by a great many coastal and island countries) and threatened (subject to international attention owing to the common concern for the prevention of species extinctions.) As such, it is hardly surprising that they are a subject of numerous multilateral and bi-lateral instruments regarding their protection and use. In addition, a much greater number of instruments are relevant to the habitats and ecosystems necessary for the continued survival of the species. This paper briefly summarizes the multilateral and bi-lateral instruments of greatest relevance to the protection and sustainable use of Hawksbills and their habitats.

A. GLOBAL INSTRUMENTS

1. Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), Washington, 1973

The basic principle underlying CITES is that, by controlling/restricting trade in endangered species, one can also indirectly control the taking of those species. By its terms, CITES is limited to applying controls on international trade in endangered species, and defines "international trade" to include (with very few exceptions) all situations in which any specimen or part of a specimen of an endangered species is taken or sent across international boundaries. Clearly CITES’s protections alone are not sufficient to prevent takings or to halt species extinctions, however, with regard to species like Hawksbills, whose value is primarily determined by international trade (whether in entire carapaces, or in items worked of "tortoiseshell"), it is of vital importance.

How CITES works:

1) Threatened species may be listed in one of three Appendices:

- in Appendix I, which includes all species threatened with extinction which are or may be affected by trade (Hawksbill turtles are currently listed in Appendix I);

- in Appendix II, which includes all species which could be threatened with extinction if trade in their specimens were not subject to strict regulation, and species which must be subject to regulation so that the control of trade in specimens of the other Appendix-II species can be effective; or

- in Appendix III, which includes all species which a Party submits to regulation within its jurisdiction to prevent or restrict exploitation, and for which it needs the co-operation of other Parties in the control of trade.

For Appendix I and II, listing decisions are made by the Conference of the Parties to CITES (COP) either by consensus or by majority vote. Listing criteria are based on a matrix of factors regarding the species status (known populations, etc.) and role in its ecosystem. Parties may enter reservations regarding certain listings. Where the status of the species warrants, it may be delisted or downlisted by the COP as well.

2) In order for any country to permit trade in a listed species (to allow export, import, re-export or introduction from the sea), administrative obligations imposed by the Convention must be satisfied. For Appendix I-species,

- the importer must first obtain an import permit from the Management Authority of the importing country;

- the importer must then obtain an export permit if the specimens are to be exported from another country, rather than brought directly from the ocean.

For Appendix I-species, circumstances warranting the issuance of these permits are very few and the conditions of issuance are strict. An export permit may only be granted if (1) the export is "not detrimental to the survival of the species," (2) the specimen was not obtained illegally; (3) there is no risk to the specimen; and (4) an import permit has been received. An import permit is issued only if (1) the import is "not detrimental to the species", (2) the proposed recipient of a living specimen is suitably equipped to house and care for it, and (3), the specimen will not be used for "primarily commercial purposes" (term very broad and sometimes unclear).

Less strict requirements govern the permit process for Appendix-II species.

3) The final component of this process is direct implementation. Countries are required to control trade in species in the same manner that they control other trade – through the customs and inspection processes at borders and other ports of entry.

The CITES Standing Committee may recommend a suspension of trade with Parties which do not fulfil these requirements.

In effect, in most cases, the listing of a species in Appendix I amounts to a cessation of its trade whereas listing in Appendix II implies generally the determination of the number of specimens (quotas) allowed to be exported.

CITES requirements are very strictly stated, and its definitions are extraordinarily broad. In this way, virtually all cross-border (or from-the-sea) transport of even a small quantity of any specimen of a listed species is regulated, and must either have a permit or qualify for an exception.

It is important to remember what CITES is not – It is not a restriction on taking of endangered species; and it is not a limitation on domestic trade in them. CITES was, instead, intended as a means of ensuring that other countries should support national conservation efforts, by outlawing unauthorized trade in these animals and their parts.

It also does not address issues concerning the state of habitats and other indicators and impacts on the species’ status. These critical factors may come into consideration in the course of the analysis that is part of the listing and de/downlisting decision-making processes, however.

CITES entered into force in 1975. This relatively fast development may evidence the importance of the hopes reposed in CITES at the time of its adoption. Two amendments to the text of the Convention were adopted (in 1979 and in 1983); one has entered into force. Currently, 152 States are Parties to CITES and three have signed the Convention but not yet ratified it.

2. Convention on the Conservation of Migratory Species of Wild Animals (CMS), Bonn, 1979

The information here was prepared for the two hawksbill meetings held in 2001 and 2002. Please check the CMS and IOSEA websites for updated information.

In the 22 years since it opened for signature, the Convention on the Conservation of Migratory Species of Wild Animals (CMS) has garnered only 71 Parties and four other signatories. Its work, however, has extended well beyond its listed parties, through its nine subsidiary agreements (discussed below.) While few of the details of Hawksbill migration are fully known, all agree that the species is migratory.

Like CITES, CMS focuses much of its operation on specific lists of migratory species that are either endangered (Appendix I (which includes Hawksbill turtles)) or threatened (Appendix II). Unlike CITES, however, CMS focuses on the need to protect the species and gives particular attention to species habitats. There are three fundamental mandates embodied in the Convention. Specifically, every Party commits itself

· to prohibit or restrict takings of migratory species;

· to restrict damage to habitats, introductions of invasive exotic species, and other activities and conditions that might obstruct migrations or interfere with migratory species; and

· to enter into separate international agreements relating to specific migratory species or groups of species whose range or migratory route includes areas within the Party’s jurisdiction.

With regard to the last requirement – agreements -- CMS is possibly unique among the biodiversity suite of conventions in the strength of its mandate and the breadth of its direct experience with regard to fostering regional action and agreements among its parties. Agreements under and related to CMS have been undertaken in a variety of formerly unconsidered situations. CMS has been a catalyst or participant in the development of a vast array of new types of international instruments. Agreements under Articles IV and V of CMS range from traditional international "agreements" (instruments of binding character, entered into by national representatives on behalf of their governments) through a variety of other types of documents, often dubbed "memoranda of understanding." As used in this context, however, the term Memorandum of Understanding has encompassed documents that may be either binding or non-binding (some, indeed, constitute only good faith agreements of the Parties to do what they can.) In addition, while some of the CMS MoUs are executed by heads of state or their representatives, others are entered into by Ministers of Environment or similar officials without plenipotentiary authority. Some of these documents embody quite unique combinations of traditional components of an MoU and those of more formal agreements and conventions. Numbered within the parties to the CMS Agreements are many countries that are not signatories of or parties to CMS itself. Moreover, where the instrument is a Memorandum of Understanding, it has sometimes included countries that are not range states of the subject species, and in some cases NGOs or other non-State entities. CMS’s experience with the negotiation and management of this array of instruments and coordination of parties of differing status may be of inestimable value to the CBD and its Member States. Two such instruments are relevant to marine turtles (including Hawksbills).

CMS entered into force in 1983.

Two of the subordinate instruments entered into under CMS relate directly to marine turtles:

2.a) Understanding Concerning Conservation Measures for Marine Turtles of the Atlantic Coast of Africa, Abidjan, 1999

This MoU among seven countries of the west coast of Africa creates a relatively straightforward framework for mutual cooperation in the conservation of turtles and their habitats. Its parties agreed to make all reasonable efforts to protect turtles at all stages of their life cycle, both legislatively and through conservation management, achieved in mutual cooperation. Integral to the MoU is the Conservation and Management Plan, which is specifically included by reference in the MoU, and will be the subject of regular meetings of the parties.

2.b) Memorandum of Understanding on the Conservation and Management of Marine Turtles and their Habitats in the Indian Ocean and South East Asia

Although this document is styled a Memorandum of Understanding and currently has no signatories, CMS has stated that it is now in its "final form" and "open for signature." (These statements (quite untypical concepts to apply to an MoU) underscore the fact that CMS agreements are pushing the boundaries of traditional concepts of international instruments.) In any other context, this would continue to be cited as a "draft MoU."

This MoU creates a "regional grouping" based on the "regional sea" concept, so that the regional parties involved include ASEAN countries, as well as those from south Asia, north Africa, West Africa, southern Africa, and the island states of the Indian Ocean. It follows closely the concepts of other CMS agreements, focusing on "achieving favorable conservation status," and on development of a mutually agreed Conservation and Management Plan. Because of its ocean-oriented focus, it does attempt to extend its coverage to the "high seas," by asking its parties to apply its principles to "vessels operating under [the party’s] flag," and suggesting that the Conservation and Management Plan should address "fisheries by-catch" issues.

3. United Nations Convention on the Law of the Sea (UNCLOS), Montego Bay, 1982

This Convention embodies the notion that ocean issues around the world are closely interrelated and need to be addressed as a whole. It is the globally recognized regime dealing with virtually all matters of law relating to the seas.

For purposes of the protection and sustainable use of Hawksbills and their habitats, the most important parts of this Convention are contained in Part V, which begins by ceding to the coastal states certain elements of international jurisdiction over the ocean areas within 200 miles of their respective coastlines. Among the powers so granted is "authority with regard to…marine scientific research [and]… the protection and preservation of the marine environment." Article 61 then makes particular provision for the right and duty of coastal states regarding the conservation of living resources –

The coastal State, taking into account the best scientific evidence available to it, shall ensure through proper conservation and management measures that the maintenance of the living resources in the exclusive economic zone is not endangered by over-exploitation. As appropriate, the coastal State and competent international organizations, whether subregional, regional or global, shall cooperate to this end.

This provision also strongly urges international and regional cooperation to these ends. Coastal states are required to make their conservation laws and regulations known, but so long as they have done so, fishing vessels in these waters must comply with those regulations.

At Part VII, Section 2, UNCLOS imposes on states "the duty to take, or to cooperate with other States in taking, such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas," and to cooperate with one another to achieve these ends. While the bulk of these provisions relate to high seas fisheries, these unequivocal statements in the plain language of the Convention create a strong mandate for conservation of turtles and other important marine animals.

UNCLOS’s definition of "highly migratory species" does not include turtles, since those provisions relate to species that are part of the high seas commercial fisheries. Other provisions, such as those relating to anadromous and catadromous species ("A coastal State in whose waters catadromous species spend the greater part of their life cycle shall have responsibility for the management of these species and shall ensure the ingress and egress of migrating fish"; and "States in whose rivers anadromous stocks originate shall have the primary … responsibility for such stocks") may be useful in suggesting a minimum level of responsibility that could be applied in the case of land-nesting marine reptiles, as well.

Other important provisions include –

Part III (establishing jurisdiction over territorial seas (maximum 12 miles) and lesser rights over contiguous zones (maximum of 24 additional miles) and the right of the coastal state to designate "shipping lanes" within them;

Part V, establishing "exclusive economic zones" (maximum 200 miles) in which certain elements of international jurisdiction are ceded to the coastal states, as described above, and in which the coastal state makes decisions concerning the levels of offtake of living resources. This provision imposes a "sustainability" criteria which may be adjusted to account for a number of social and scientific factors, based on a desire for "optimum utilization" of living resources.

In addition, in this part States are given authority to regulate fishing seasons and zones, and to specify the types, sizes and amounts of gear or vessels that will be permitted.

Finally, UNCLOS, like the Convention on the High Seas (Geneva, 1958) which is probably subsumed by UNCLOS, empowers boarding and searching of vessels on the high seas which are believed to be in violation of some of its provisions, and for other reasons.

The Convention entered into force on 16 November 1994. It currently lists 135 parties.

4. Convention on Biological Diversity (CBD), Rio de Janeiro, 1992

This Convention is thought to be the most comprehensive in its approach to conservation of all species of plant, animal and even microbe on the planet. It identifies three primary objectives – conservation of biological diversity, sustainable development of living resources, and equitable sharing of the benefits from certain uses. In the realm of "conservation," it recognizes the need for both in situ and ex situ conservation measures, but expresses a preference for the latter, noting also the critical importance of the "ecosystem approach" with regard to conserving essential habitats.

With regard to "sustainable use," it notes the importance of planning, based on real data concerning the nature and status of species populations. Indeed the only specific action that the parties were directly obligated to undertake initially upon entering into the convention was an inventory of their biological diversity, specifically focused on "ecosystems and habitats: containing high diversity, large numbers of endemic or threatened species, or wilderness; required by migratory species; of social, economic, cultural or scientific importance; or, which are representative, unique or associated with key evolutionary or other biological processes."

The CBD is notably silent with regard to international waters and species. It does, however, apply to these species by expressly stating that "Contracting Parties shall implement this Convention with respect to the marine environment consistently with the rights and obligations of States under the law of the sea." Perhaps more importantly, the CBD’s active Conference of the Parties has targeted the status of the biodiversity of "Coastal and Marine Areas" as a thematic issue of importance over the coming years.

The CBD entered into force in 1993, and currently numbers 180 ratified Contracting Parties, and seven other signatories.

5. Convention on Wetlands of International Importance Especially as Waterfowl Habitat, (The Ramsar Convention) Ramsar, 1971

Oldest of the major conservation conventions (it has been in force since 1975), Ramsar has been through many evolutions. It has long transcended its original focus on "wetlands as waterfowl habitats," and is now a major force in the promotion of conservation of all types of wetlands – including (most relevant to this paper) marine wetlands and coastal marshlands. Ramsar’s protections are strongest with regard to "wetlands of international importance," a term which would arguably include any wetland that was important to turtle nesting or survival, given the fact that turtles are highly migratory (in effect an "international species") and are listed as important under numerous international conventions.

The Ramsar Convention is particularly useful as a habitat protection measure. It operates under a site-listing process. A country becomes a Contracting Party under the Convention by taking two steps – accession to the convention and listing at least one "wetland of international importance." Thereafter, under the Convention, that party is obligated to take measures to protect and conserve that wetland (and wetlands generally) and to restore degraded wetlands and take other measures found to be important to the ecosystem’s health.

Ramsar is equally important, however, as a function of the work of the Convention, through its Secretariat and Conferences of the Parties. It is virtually unparalleled in the amount of useful assistance (in the form of Guidelines and other guidance documents, as well as other work) it provides to its members, and in its approach to coordination with other conventions and international organizations as a mechanism for maximizing its parties’ abilities to achieve the objectives of the Convention.

The Ramsar Convention currently has 119 Contracting Parties.

6. Convention Concerning the Protection of the World Cultural and Natural Heritage (World Heritage Convention, or WHC), Paris, 1972

The World Heritage Convention is another treaty which may be used to protect internationally important natural sites. Here also, the special nature of marine turtles suggests that sites important to their life cycles might meet the general requirements of "international importance" and qualify for listing. Another list-based convention, it’s protections apply only when the World Heritage Committee approves a site for listing. Such approval may be given to sites that have been nominated by the country in which they are located or in some situations by others. This Convention is somewhat more proactive in oversight of listed sites, creating a list of "World Heritage in Danger" which identifies listed sites that are threatened or degraded.

The convention, which entered into force in 1975, currently has 155 State Parties

7. Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (Straddling Stocks Agreement) New York, 1995

Generally an agreement on "responsible fisheries," this document has potential relevance to marine turtles in three primary ways: First, it reiterates the requirements of UNCLOS (necessarily including the conservation provisions identified above) and noted that they are applicable to implementation of the Straddling Stocks Agreement.

Second, it requires coastal and fishing States to apply the precautionary approach, and to "assess the impacts of fishing, other activities and environmental factors on … species belonging to the same ecosystem." As to these species, the States are required to "adopt, when necessary, conservation and management measures … with a view to maintaining or restoring populations of such species above levels at which their reproduction may become seriously threatened."

Third, States are specifically required to "protect biodiversity in the marine environment" and to "implement and enforce conservation and management measures through effective monitoring, control and surveillance."

A number of other provisions may also be important in protecting turtles from the consequences of environmental and ecosystem degradation more generally. These include prohibitions on polluting activities, and requirements ensuring that fish takes remain at the level necessary for sustainability of the fish stocks and provisions for State Parties’ liability for damages/losses attributed to them.

The Agreement has not yet come into force, currently it has been signed or acceded to by 67 countries of whom 27 have fully ratified it.

8. Code of Conduct for Responsible Fisheries, FAO 1995

The first principle of this code is the duty of States and users of living aquatic resources to "conserve aquatic ecosystems." The Code specifically notes that "the right to fish carries with it the obligation to do so in a responsible manner so as to ensure effective conservation and management of the living aquatic resources." The precautionary principle is invoked, specifically noting that conservation of the aquatic environment should be a component of precautionary consideration.

The Code is also the primary international document identifying the relationship between conservation objectives and high-seas fishing gear. It notes that "selective and environmentally safe fishing gear and practices should be further developed and applied, to the extent practicable, in order to maintain biodiversity and conserve the population structure and aquatic ecosystems." It also specifically addresses the issue of "negative impacts on associated or dependent species, in particular endangered species." It specifically applies these principles and obligations to "all critical fisheries habitats in marine and freshwater ecosystems such as wetlands mangroves, reefs, lagoons, nursery and spawning areas" and to recognize multiple uses and importance for all aquatic resources. Finally, it notes the obligation of states to impose these requirements on their flag vessels, and to implement them through legislation and other action.

Another important activity which might greatly impact turtles and their habitats is aquaculture. The Code is one of the few international documents which discusses this issue in detail and imposes "responsible fisheries" requirements including concern for other species and habitats, on these activities.

The Code also identifies a number of more general pollution concerns and imposes responsibilities to comply with them as well.

The Code includes as an integral part the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (FAO, 1994). That document requires 25 acceptances, of which currently 19 have been placed on record.

9. Convention on Fishing and Conservation of Living Resources of the High Seas, Geneva 1958

This convention is focused on uses of fish and other living resources, and "conservation" within its terms relates to an initial concept similar to "sustainable use" focused on preserving the stocks and ensuring that total offtakes are sustainable. Its primary application to Hawksbills would arise in the event that their use in trade were to receive official sanction at some point in the future. In this connection, however, this instrument might be thought to be subsumed and supplanted by UNCLOS.

This convention entered into force in 1966, and currently 37 countries have acceded to it.

10. Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, New York, 1994

This Convention entered into force in 1964, and currently has 57 listed parties. It concerns itself primarily with mining and other uses of the deep seabed. Of interest to this paper are its provisions concerning conservation – " The exploration of the continental shelf and the exploitation of its natural resources must not result in any unjustifiable interference with … the conservation of the living resources of the sea, nor result in any interference with fundamental oceanographic or other scientific research carried out with the intention of open publication."

11. General Assembly Resolution 46/215 on large-scale pelagic drift-net fishing and its impact on the living marine resources of the world’s oceans and seas (79^th Plenary Meeting, 20 December 1991)

This decision, adopted without the need for a vote, committed the members to a moratorium on drift-net fishing (a major cause of turtle mortality and other by-catch problems) which would begin on 31 December 1992.

12. Non-Binding Global Environmental Instruments: Agenda 21, the Rio Declaration

The 1990’s gave birth to several important non-binding instruments, including two that are most relevant to the conservation and sustainable use of marine turtles are the Rio Declaration and Agenda 21.

Rio Declaration on the Environment and Development: This Document identifies 20 basic principles, of which the second notes the obligations of states to avoid causing damage to the environment beyond the limits of national jurisdictions." In its 7^th principle, it notes the important concept of "common but differentiated responsibilities" of all States in ensuring that development and the environment are not conflicting objectives.

Agenda 21: This lengthy document sets forth a status report of the world’s environment at the end of the 20^th Century, and a plan for political commitment to global improvement, identifying specific strategies and actions. Although many of its provisions (addressing pollution and human impact issues) are relevant to turtle conservation, two chapters address this issue most directly.

In Chapter 15 ("Conservation of Biological Diversity") specifies several particular priorities for the management of biological diversity, including.

Integration of "strategies for the conservation of biological diversity and sustainable use of biological and genetic resources into relevant sectoral or cross-sectoral plans, programmes, and policies";

Implementation of "in situ measures [which] include the reinforcement of terrestrial, marine and aquatic protected area systems and embrace, inter alia, vulnerable … wetlands and coastal ecosystems";

Promotion of "the rehabilitation and restoration of damaged ecosystems and the recovery of threatened and endangered species"; and

Improvement of the data and information bases and frameworks for regional cooperation and coordination which will be the foundations of these actions.

In Chapter 17 ("Protection of the Oceans, all kinds of Seas, including enclosed and semi-enclosed Seas, and Coastal Areas and the protection, rational Use and Development of their Living Resources") identifies "marine environmental protection" as one of its primary objectives (along with sustainable use of marine resources of the high seas and those under national jurisdiction, and sustainable development of small islands.) Among the priority activities, this Chapter calls for

"Preparation of coastal profiles identifying critical areas, including eroded zones, physical processes, development patterns, user conflicts and specific priorities for management";

"Conservation and restoration of altered critical habitats";

Development of "surveys of marine biodiversity, inventories of endangered species, and critical coastal and marine habitats, [and] establishment and management of protected areas" according priority to coral reefs, estuaries, wetlands, seagrass beds, and spawning and nursery areas;

Promotion of "the development and use of selective fishing gear and practices that minimize ... by-catch of non target species";

Protection and restoration of endangered marine species;

Preservation of "habitats and other ecologically sensitive areas";

Giving special attention to "highly migratory species";

Strengthening legal and regulatory frameworks, including for enforcement and surveillance; and

Addressing "critical uncertainties for the management of the marine environment and climate change."

Each of Agenda 21’s recommendations is part of a very comprehensive plan, which identifies participation and financing issues, and many other components of implementation.

13. Other International Instruments

A great many of the international laws listed above address other issues that may be of importance to turtle conservation efforts, including alien species, and integrated coastal management. In addition, current initiatives concerning protection of sea mounts and declaration of protected areas in international waters may be of relevance as well.

Beyond these instruments, of course, a great many international instruments regulate polluting or other potentially damaging activities that can have a tremendous impact on the health of turtle populations and the maintenance of acceptable habitats. Among these are the following:

Convention on the International Regulations for Preventing Collisions at Sea, London, 1972

Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter, London, Mexico City, Moscow, and Washington, 1972

International Convention for the Prevention of Pollution from Ships (MARPOL), London, 1973, and its 1978 Protocol, London, 1978

Convention on Long-Range Transboundary Air Pollution (LRTAP), Geneva, 1979 (and protocols)

Convention on the Physical Protection of Nuclear Material, place, 1979

Vienna Convention - Vienna Convention for the Protection of the Ozone Layer, Vienna, 1985

Convention on Environmental Impact Assessment in a Transboundary Context, Espoo, 1991 (not in force)

United Nations Framework Convention on Climate Change (UNFCCC), New York, 1992 (and its "Kyoto Protocol, 1997, not in force)

Convention on the Transboundary Effects of Industrial Accidents, Helsinki, 1992 (not in force)

Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Wastes Management, 1997 (not in force)

Finally, it is useful to note the Agreement on the International Dolphin Conservation Program (Washington, 1998), which presents a comprehensive approach to application of relevant provisions of UNCLOS, the Straddling Stocks Agreement and other documents. Arguably, special provisions in those agreements relating to marine mammals may suggest that the Dolphin Program is not a perfect paradigm for turtle conservation, however, there are many elements of these efforts to eliminate dolphin mortality (in the wake of the tuna-dolphin cases) which might offer useful lessons in the ultimate development of an international program to protect turtles on the high seas and in territorial waters and EEZs.

B. REGIONAL INSTRUMENTS

(See also, entries describing the Understanding Concerning Conservation Measures for Marine Turtles of the Atlantic Coast of Africa; and the Memorandum of Understanding on the Conservation and Management of Marine Turtles and their Habitats in the Indian Ocean and South East Asia, both of which are included under the Convention on Migratory Species, above.)

1. The Americas and the Caribbean

a) Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region (the Cartagena Convention), Cartagena de Indias, 1983

This is a "framework" convention through which parties are encouraged to take further action, collectively or in smaller or bi-lateral arrangements, for the protection of the Gulf of Mexico and Caribbean marine areas. It focuses primarily on pollution issues, but also includes general provisions concerning the need to protect habitats and other ecosystems. Ultimately, its most important provisions may be those which require the parties to "cooperate [in] adopting appropriate rules and procedures … [for] liability and compensation for damage resulting from pollution of the Convention Area.

The Convention has been in force since 1986, and has 21 Contracting Parties.

b) Protocol Concerning Specially Protected Areas and Wildlife to the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region (SPAW protocol), Kingston, 1990

The SPAW Protocol, which entered into force last June, is very comprehensive. It seeks to achieve its basic objective of "protecting rare and fragile ecosystems and habitats, thereby protecting the endangered and threatened species residing therein." In practice, the SPAW protocol’s provisions identifying and guide the parties through the requirements of responsible in situ conservation, effectively foreshadowing the adoption of those components of the CBD. It also provides a coordinating framework consistent with and appropriate to implementation of Ramsar and CITES in the region. Because it is focused on a marine region, the SPAW Protocol contains an excellent summary of the particular issues and concerns of marine conservation. Although virtually all of its provisions are very relevant to Hawksbills and their habitats, several provisions are of greatest interest, including

Article 10 – requiring protection of species identified as endangered, including protection of their habitats.

Article 11 – cooperative measures for species protection, utilizing an annex system similar to the CITES appendices (Annex I and II list species needing "total protection" and Annex III lists species whose use should be regulated.) Exemptions are possible, even as to the strictest protections, subject to strict limitations.

Article 12 – addressing concerns relating to alien species introductions;

Article 21 – regarding the setting of "common guidelines and criteria" for such activities as "the identification and selection of … protected species," "the management of … protected species including migratory species," and "the provision of information on… protected species including migratory species."

The provisions of the Protocol include detailed procedures for reconsidering the species lists, and delisting species that are no longer felt to be in need of protection.

To date, nine parties have acceded to the Protocol.

c) Inter-American Convention on the Protection and Conservation of Sea Turtles (IAC), Caracas, 1996 (about to enter into force)

Although still not in force, this Convention is particularly important, both as an instrument for regional collaboration on turtles management, and, in other international negotiations, where it is sometimes cited as the "state of the art" for turtle-protection instruments. Its geographical range is the maritime areas and coastal zones of the Americas and the Caribbean. Presumably, it would include territorial seas around Hawaii, and any protectorates or other areas in which the US continues to exercise sovereign rights. The document contains very detailed provisions in some substantive areas, listing a number of "appropriate and necessary measures… for the protection, conservation and recovery of sea turtle populations." Among those measures are legislative and physical protection, compliance with CITES, research, education, prevention of incidental capture (where possible), and the use of specified fishing gear (turtle excluder devices) in fishing activities.

d) Cooperative Agreement for the Conservation of Sea Turtles of the Caribbean Coast of Costa Rica, Nicaragua and Panama (Tri-Partite Agreement), San José, 1998 (not in force)

The Tri-partite Agreement addresses the issues of cooperation in the management and conservation of sea turtles and their habitats. Although not yet in force, the Agreement notes that the three parties "have a shared historic agreement for the conservation of the sea turtles of the Caribbean coast…" The Agreement’s primary provisions relate to "implement international and national conventions and agreements ... for the conservation of sea turtles, through the execution of a Regional Management Plan." Its operations will be undertaken and overseen by a tripartite committee to address turtle conservation matters and management. In addition, the parties specifically agree to "promote the adoption of laws and regulations in non-party states that conform with those stipulated in this Agreement and to encourage other nations to become parties to it."

e) Convention for the Conservation of the Biodiversity and the Protection of Wilderness Areas in Central America, Managua, 1992 (not in force)

This Convention, although still not in force, would oblige Central American countries to take measures to ensure the conservation and maintenance of biodiversity, and to ensure that its uses are sustainable. Among other provisions, it would obligate countries to identify and protect important areas, both as habitat and for other reasons, and to restore degraded areas.

f) Treaty on the Rio de la Plata (Tratado de la Cuenca Del Plata), Brasilia, 1969

This treaty is generally a "watershed management" agreement, but includes a provision concerning the possible necessity of adopting subsidiary instruments as measures for inter alia the conservation of wildlife. This important watershed also includes "important – but poorly documented - foraging areas for two, and possibly three species of marine turtles," suggesting that this may be a critical instrument for turtle conservation in the region.

This treaty has been in effect since 1970 and has five contracting parties.

g) Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere, Washington, 1940

This somewhat superannuated convention is widely ignored, and to a certain extent subsumed by later MEAs, to which all of its 19 parties have acceded. Its primary focus is on maintenance of existing protected areas, but also embodies certain commitments to protected species (a very short list, never updated, created at a time when the plight of marine turtles was either not known or not yet serious.)

h) Other Relevant Instruments – The Americas and Caribbean

Several other documents relate to activities and conditions in the waters of these regions, these include:

Protocol Concerning Pollution from Land-Based sources and activities to the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region, Oranjestad, 1999 (not in force)

Protocol Concerning Cooperation in Combating Oil Spills in the Wider Caribbean Region, Cartagena de Indias, 1983

Convention for the Establishment of an Inter-American Tropical Tuna Commission, Washington, 1949 (may be subsumed by UNCLOS)

i) Regional Institutions

The UNEP Caribbean Environment Program, and particularly its SPAW programme (integrally tied to the SPAW Protocol, discussed above), offers some valuable support for the conservation of living natural resources, including Hawksbills. This Unit pursues the SPAW protocol’s objective by assisting with the establishment and proper management of protected areas, by promoting sustainable management (and use) of species to prevent their endangerment and by providing assistance to the governments of the region in conserving their coastal ecosystems. It is also responsible for the regionalization of global conventions and initiatives such as the CBD, the international Coral Reef Initiative, and the Global Coral Reef Monitoring Network. As noted by the programme, its primary advantages include "specific and concrete guidance for the implementation of the Convention on Biological Diversity (CBD), in particular regarding protected area establishment and management, as well as species and coastal ecosystems management and conservation. (The CBD is very demanding on those issues but does not provide guidance which SPAW does)."

[Recognizing the value of a more comprehensive knowledge of the state of international instruments relevant to Hawksbills, the following are very brief summaries of other instruments from other regions. (It should also be noted that the broad migratory patterns of marine turtles suggests that the protections imposed by these regions may be applicable in protecting the same individuals at times found in the Caribbean region.)]

2. Atlantic Agreements

a) Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention), Paris, 1992

Primarily directed at marine pollution, this Convention may be of interest in its provisions requiring the Contracting Parties to "undertake and publish at regular intervals joint assessments of the quality of the marine environment." It is interesting to note, given the relative newness of the convention (it took effect in 1998) that it does not define "quality of marine environment" or make any other direct reference to marine species.

There are 16 parties to this Convention, which may be superceded by Marpol.

b) Convention on the Conservation of the Living Resources of the Southeast Atlantic, Rome, 1969

This Convention is primarily focused on "responsible fisheries" issues, but owing to its age, does not include any provisions regarding by-catch. Its provisions for research and study are its primary contribution to possible turtle protection. It has 17 parties, and may be superceded by UNCLOS.

c) Other Atlantic Instruments

Three other conventions, all relating to Atlantic fisheries, may have some relevance to turtle conservation –

Convention on the Conduct of Fishing Operations in the North Atlantic, London, 1967

Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries (NAFO), Ottawa, 1978

Convention on Multilateral Cooperation in North-East Atlantic Fisheries, London, 1980

3. Pacific Agreements

a) Convention for the Protection of the Marine Environment and Coastal Area of the South East Pacific, Lima, 1981

Primarily focused on pollution issues, this Convention is notable because of its specific mentions of erosion of the coastal area (a condition that might have significant impact on turtle habitat), assessment of repercussions of the environment, and liability and compensation.

b) Protected Areas (SE Pacific) - Protocol for the Conservation and Management of Protected Marine and Coastal Areas of the Southeast Pacific, Paipa, 1989 (not in force)

This more detailed examination of specific habitat issues would include the creation of a network of protected area authorities throughout the region.

c) Convention for the Protection of the Natural Resources and Environment of the South Pacific Region (SPREP Convention), Noumea, 1986

Another framework convention, the SPREP Convention specifically calls on its parties to "individually or jointly, take all appropriate measures to protect and preserve rare or fragile ecosystems and depleted threatened or endangered flora and fauna, as well as their habitat." Among the activities required toward this end, the Parties must "prohibit or regulate any activity likely to have adverse effects on the species."

d) Agreement Establishing the South Pacific Regional Environment Programme (SPREP), Apia, 1993

The formal establishment of a regional environmental body with broad powers.

e) Convention on Conservation of Nature in the South Pacific, Apia, 1976

Primarily focused on creation and management of protected areas, this Convention is of interest for three provisions. First, it directly mandates that Contracting Parties, in establishing a network of protected areas, attempt to "safeguard representative samples of the natural ecosystems occurring therein (particular attention being given to endangered species.)" Second it specifically requires prohibition or control of all takings of fauna and flora in protected areas. And third, it states that, in addition to protection of species/specimens within protected areas, Contracting Parties are required to more generally throughout their jurisdictional area "use best efforts to protect such fauna and flora (special attention being given to migratory species) so as to safeguard them from unwise exploitation and other threats that may lead to their extinction.

f) Convention for the Prohibition of Fishing with Long Drift-nets in the South Pacific (Wellington Convention), Wellington, 1989

This Convention (supplemented by two Protocols (Noumea, 1990)) was instrumental in the elimination of driftnet fishing practices.

g) Protocol Concerning Co-operation in Combating Pollution Emergencies in the South Pacific Region, Noumea, 1986

This protocol is of interest by virtue of its provisions requiring that National Contingency Plans identify "areas most vulnerable or sensitive to ecological … damage which will require special protection" and the most important natural conditions of those areas.

h) Other Pacific Instruments

Agreement on Regional Cooperation in Combating Pollution of the Southeast Pacific by Hydrocarbons or other Harmful Substances in cases of Emergency, Lima, 1981

Protocol for the Protection of the Southeast Pacific Against Pollution from Land-Based Sources, Quito, 1983

Supplemental Protocol to the Agreement on Regional Cooperation in Combating Pollution of the Southeast Pacific Against Pollution by Hydrocarbons or other Harmful Substances from Land-Based Sources, Quito, 1983

Protocol for the Protection of the South East Pacific Against Radioactive Pollution, Paipa, 1989

Protocol for the Prevention of Pollution of the South Pacific Region by Dumping, Nouméa, 1986

Protocol concerning Cooperation in Combating Pollution Emergencies in the South Pacific Region, Nouméa, 1986

South Pacific Forum Fisheries Agency Convention, Honiara, 1979

International Convention for the High Seas Fisheries in the North Pacific Ocean, Tokyo, 1952

Nauru Agreement Concerning Cooperation in the Management of Fisheries of Common Interest, Nauru, 1982

Niue Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South Pacific Region, Niue, 1992

Harmonizied Minimum Terms and Conditions of Access, Niue, 1993

4. African Agreements

a) Regional Convention on Fisheries Cooperation among African States Bordering the Atlantic Ocean (ASBAO), Dakar, 1991 (not in force)

Primarily a fishing agreement, this document also notes particularly the need to "intensify their efforts … to ensure the protection and preservation of the marine environment as well as the management of coastal areas," and to enter into cooperative agreements for this purpose. Other important provisions include the promotion of the welfare of artesanal and other local fishermen, and to harmonize their fisheries policies.

b) Convention for Cooperation in the Protection and Development of the Marine and Coastal Environment of the West and Central African Region, Abidjan, 1981

This Convention’s terms are similar to those of the Convention on Conservation of Nature in the South Pacific, Apia, 1976 (above).

5. Mediterranean Agreements

a) Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean, Barcelona, 1995 (not in force)

A general instrument, primarily focused on pollution, this Convention also mentions biodiversity and liability issues. Its associated Action Plan (now in its second phase), however, devotes significant attention to soils, coastal fauna, and integrated coastal area management (specifically including the objective of preservation of biological diversity and coastal ecosystems.)

b) Protocol Concerning Specially Protected Areas and Biological Diversity, Barcelona, 1995 (not in force)

Similar to other protected areas conventions in many ways, this Protocol’s list-based provisions for the protection and conservation of species are relatively strict and comprehensive, incl8uding inventories and other critical requirements.

c) Other Instruments

Convention for the Protection of the Mediterranean Sea Against Pollution, Barcelona, 1995 (not in force)

C. DECISIONAL LAW

On October 12, 1998, the Appellate Body of the WTO handed down a decision against section 609 of the U.S. Endangered Species Act, which prohibits the import of shrimp from nations that do not require all their shrimp trawlers to employ turtle-excluder devices (TEDs) in their nets. The Appellate Body upheld the lower WTO panel's ultimate determination: that the U.S. law amounted to "arbitrary and unjustifiable discrimination." While upholding the lower panel's conclusion, the WTO's Appellate Body did limit somewhat one of the most egregious aspects of the lower panel decision.

In essence, the Body concluded that the US law was at fault only because it did not allow other types of turtle protection devices to be considered to satisfy the requirements. Its decision specifically notes "We have not decided that the protection and preservation of the environment is of no significance to the Members of the WTO. Clearly, it is. We have not decided that the sovereign nations that are Members of the WTO cannot adopt effective measures to protect endangered species, such as sea turtles. Clearly, they can and should."

That decision has not ended this controversy, however. On 27 January 2000, the US stated that it had implemented the DSB's rulings and recommendations, namely by adopting a certification system that was based on shipment-by-shipment, rather than country-by country. Malaysia asserts that the US ban still constitutes a violation of WTO rules.

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