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The Need for International Legal Protection of Sea Turtles and The Golden Gate University School of Law GGU Law Digital Commons Theses and Dissertations Student Scholarship 5-2007 The eedN for International Legal Protection of Sea Turtles and the Enforcement of Seafood Ecolabelling Standards Lalaina N.R. Rakotoson Golden Gate University School of Law Follow this and additional works at: http://digitalcommons.law.ggu.edu/theses Part of the Animal Law Commons, Environmental Law Commons, and the Food and Drug Law Commons Recommended Citation Rakotoson, Lalaina N.R., "The eN ed for International Legal Protection of Sea Turtles and the Enforcement of Seafood Ecolabelling Standards" (2007). Theses and Dissertations. Paper 17. This Dissertation is brought to you for free and open access by the Student Scholarship at GGU Law Digital Commons. It has been accepted for inclusion in Theses and Dissertations by an authorized administrator of GGU Law Digital Commons. For more information, please contact [email protected]. GOLDEN GATE UNIVERSITY THE NEED FOR INTERNA TlONAL LEGAL PROTECTION OF SEA TURTLES AND THE ENFORCEMENT OF SEAFOOD ECOLABELLING STANDARDS by Lalaina N. R. Rakotoson Mse.(LLB) University of Antananarivo 1991 Mse. (LLB) University of Fianarantsoa 1994 Ms.E.L. Vermont Law School 1995 A Dissertation Submitted to The Faculty of the International Legal Studies Program In Candidacy for the Degree of Doctor of Juridical Sciences (SJD) Committee Members: Professor Dr. Sompong Sucharitkul, Chair Professor Dr. Christian Okeke Professor Michelle Leighton San Francisco, California May 2007 ABSTRACT The migratory nature of sea turtles makes their protection difficult and that causes the failure of International environmental law to protect them Despite years of concern for sea turtles and the threats to them no rule of national law and no single international environmental agreement are capable of effectively protecting sea turtles. Sea turtles have been protected through domestic environmental laws such as the US Endangered Species Act. Section 609 requires countries exporting shrimp to the US to equip their trawlers with Turtle Excluder Devices (TEDs). This is an analysis of the need for global legal protection of sea turtles inspired from the US TED requirement. Despite its importance as an effective tool to protect sea turtles, the legitimacy of US Section 609 extraterritoriality was challenged by few shrimp exporting countries who submitted their claim to the World Trade Organization 0fVTO) in 1998. Although the last WTO decision in 2001 marked international trade law for its efforts to consider elements of environmental law in its verdict, the main focus of this study is to use the TED requirement as model on the global level as it is an e1ficient tool to protect sea turtles and assure sustainable fisheries management. This requires one international organization to assure the implementation of the TED requirement worldwide through either voluntary or mandatory ecolabelling. TED requirement models can be integrated to form an effective legal framework on the international level and .a mechanism that is acceptable to every country. 1 The seafood certification program can be formalized through either internationally recognized organizations such as the Marine Stewardship Council (MSC), or the FishCode Program, both implementing the FAD Code of Conduct for Responsible Fisheries. The TED requirement and the FAD Code of Conduct for Responsible Fisheries are two mechanisms that are compatible and appropriate to protect sea turtles both on the domestic level and on the international level. The goal is to internationalize the TED requirement and its integration with one of the FAD mechanisms. Another part of this study evaluates the domestic effectweness of international legal frameworks to protect sea turtles, using the example of Madagascar. The purpose of the study is to investigate the social impact as well as the integration of conservation measures to littoral communities traditional use of sea turtles as subsistence. It is important to study the national/local implementation of the 1992 Biodiversity Convention. The reason is because this is not only about protecting sea turtles from destructive fisheries practices, but also promoting the sus1ainable use and access of local resources users to these resources as the 1992 Biodiversity convention attributes such use rights to local communities if the practice is proven not to harm the ecosystem. 2 TABLE OF CONTENTS ABSTRACT .................................................................................................................................................. 1 TABLE OF CONTENTS ............• ~ ............................................................................................................... 3 LIST OF ACRONYMS AND ABREVIATIONS ....................................................................................... 6 METHODOLOGY •.................•.•.•........................•......•..........•.......•.........•.........••............•...........•...........•... 8 ACKNOWLEDGEMENT ••.........................•.•........•......•..................•.......•.•..........••..............•..........••......... 9 INTRODUCTION ................................................................................................ :.........•.•...........•..........••. 11 THREATS TO SEA TURTLES ........................................................................................................................ 11 JUSTIFICATIONS FOR SEA TURTLES PROTECTION ....................................................................................•.. 12 THE ETHICAL IMPLICATIONS OF THE CREATION THEORY TO THE PROTECTION OF SEA TURTLES AND ALL CREATURES ............................................................................................................................................... 13 FAILURE OF INTERNATIONAL ENVIRONMENTAL LAW TO PROTECT SEA TURTLES ...................................... 15 DISSERTATION OUTLINE ........................................................................................................................... 20 CHAPTER 1: .............................................................................................................................................. 21 ASSESSMENT OF THE CAPACITY OF EXISTING ENVIRONMENTAL LAWS TO ADDRESS SEA TURTLES THREATS ....................................................................................................................... 21 SECTION 1: INTRODUCTION ...................................................................................................................... 22 SECTION 2: FAILURE OF INTERNATIONAL ENVIRONMENTAL LAW TO PROTECT SEA TURTLES .................. 23 2.1. The migratory nature ofthe sea turtles ........................................................................................ 23 2.2. The over fishing and destructive practices ................................................................................... 24 SECTION 3: SCOPE OF THE EXISTING INTERNATIONAL LEGAL FRAMEWORKS AND THE LACK OF SPECIFIC. PROVISION ADDRESSING SEA TURTLES ISSUES .......................................................................................... 26 3.1. Customary International Law and the 1982 Law ofthe Sea Convention ..................................... 26 3.1.1. The coastal zone and turtles nesting beaches............................................... ............................. 27 3.1.2. Permanent Sovereignty over Natural Resources and State Responsibility ............................... 28 3.1.3. The territorial sea and the EEZ................................................................................................. 30 3.1.4. The high seas .............................................................................................................................. 33 3.1.5. Conclusion ................................................................................................................................ 34 SECTION 4: GENERAL PRINCIPLE OF INTERNATIONAL LAW ...................................................................... 36 4.1. Straddling Stocks .......................................................................................................................... 36 4.2. Rules Relating to Shared Resources ............................................................................................. 39 4.3. Common Heritage ofHumankind ................................................................................................ 40 4.4. Precautionary Principle ............................................................................................................... 42 4.5. Conclusion ................................................................................................................................... 42 SECTION 5: INTERNATIONAL ENVIRONMENTAL AGREEMENTS ................................................................. 43 5.t The 1979 Convention on the Conservation ofmigratory species ofwild animals ....................... 43 5.2. The 1992 Biodiversity Convention ............................................................................................... 44 5.3. The United Nations FAO code ofconduct for responsible fisheries ............................................ 45 5.4. Conclusion ................................................................................................................................... 46 3 CHAPTER ll: POLICY LESSONS FROM THE UNITED STATES TURTLE EXCLUDER DEVICE (TED) REQUffiEMENT EFFECTIVENESS
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