WT/DS58/R Page 157 V. PANEL'S CONSULTATION WITH SCIENTIFIC EXPERTS A. INTRODUCTION 5.1. The Panel noted that none of the parties to the dispute had requested the Panel to consult experts. However, the Panel noted that parties had submitted a number of studies by experts and often quoted the same scientific documents to support opposite views. Under those circumstances, the Panel informed the parties that it had decided, acting on its own initiative, to seek scientific and technical advice pursuant to paragraph 1 and paragraph 2, first sentence, of Article 13 of the DSU. The Panel focussed its questions on two main areas: (i) approaches to sea turtle conservation in light of local conditions, and (ii) habitat and migratory patterns of sea turtles. 5.2. Regarding the criteria for selecting the experts, India, Malaysia, Pakistan and Thailand noted that the experts should be neutral, diverse in areas of expertise and geographically distributed as much as possible. The emphasis should be placed on experts who had knowledge and first-hand experience with respect to sea turtle populations in the areas of contention, namely Asia and South-East Asia. They should not come from the same university or the same team of research. Moreover, the experts should be asked to provide citations to all sources that they consulted for the purpose of providing information to the Panel and to attach copies of cited sources to any submissions to the Panel. India, Malaysia, Pakistan and Thailand further noted that the Panel had decided to seek expert opinion under the provisions of paragraph 1 and paragraph 2, first sentence, of Article 13 of the DSU, and had decided, therefore, not to establish an expert review group as foreseen in paragraph 2, second and third sentences, of Article 13 and Appendix 4 of the DSU. India, Malaysia, Pakistan and Thailand requested the Panel to conform as far as possible with the provisions of Appendix 4 of the DSU, and in particular with paragraph 3 of Appendix 4 which stated that, unless there was joint agreement of the parties to the dispute, citizens of parties to the dispute should not be called upon to render expert advice. 5.3. The United States fully supported the Panel having access to expert advice that it considered useful for the resolution of this dispute. The advice of qualified and impartial experts would support the scientific and technical information that the United States had presented to the Panel and would thus assist the Panel in resolving this dispute on the basis of the best available scientific data. According to the United States, the Panel's enquiry should be limited to resolving those factual issues necessary to determining whether the US measures met the criteria of Article XX(g) and (b); the Panel was not asked to address and decide general policy issues relating to shrimp trawling and sea turtles conservation. In order to determine whether the US measures related to the conservation of an exhaustible natural resource, or were necessary for the protection of animal life or health, the core scientific and technical issues were the following: (i) are sea turtles threatened or endangered worldwide?, (ii) does shrimp trawling without TEDs result in the death of large numbers of sea turtles?, (iii) do TEDs, when properly installed and used, significantly reduce the mortality of sea turtles caused by shrimp trawl nets? 5.4. According to the United States, the Panel should use two basic criteria in selecting the experts: (i) the persons selected should be "experts" with respect to those aspects of the dispute for which their opinions were sought; (ii) as stipulated in the Rules of Conduct for the Understanding on Rules and Procedures Governing the Settlement of Disputes they must be WT/DS58/R Page 158 "independent and impartial, and shall avoid direct or indirect conflict of interest".1 In particular, no expert consulted by the Panel should be associated with the government of a party to the dispute. The disclosure requirements regarding the existence of any interest, and in particular employment interests, that could affect or raise doubts concerning a person's independence or impartiality also applied to the experts.2 Given the broad field covered by the questions, it was unlikely that many persons would have expertise with respect to each and every one of these questions. Each expert should therefore be instructed to answer only those questions in which they had expertise. Panel Procedures with Regard to Scientific Expertise 5.5. The Panel asked the parties to the dispute to provide it with names of possible experts. The Secretariat, then sollicited brief curricula vitae from all proposed experts who were ready to assist the Panel. The parties were provided the opportunity to comment on these potential experts on the basis of the curricula vitae, and in particular to state any compelling objections they might have with regard to any individual. 5.6. After careful consideration of the curricula vitae and of the comments made by the parties, the Panel selected the following five experts: Dr. Scott A. Eckert, Ph. D., Hubbs Sea World Research Institute, San Diego, United States; Dr. John G. Frazier, Ph. D., Centro de Investigación y de Estudios Avanzados, Mérida, Mexico; Mr. Michael Guinea, Northern Territory University, Darwin, Australia; Mr. Hock-Chark Liew, University Putra Malaysia Terengganu, Malaysia; Dr. Ian Poiner, Commonwealth Scientific and Industrial Research Organization, Queensland, Australia. 5.7. These experts were requested to serve, in their own personal capacities, as individual advisers under the authority of the Panel. The Panel noted that, in their disclosure forms, three of the proposed experts disclosed what might be considered to be potential conflicts of interest. However, the Panel decided to confirm their appointments being of the view that the disclosed information was not of such a nature as to prevent the individuals concerned from being impartial in providing the scientific information expected of them. The Panel has also taken into account the disclosed information when evaluating the answers provided. The Panel underlined that, in making its choice, it had been guided primarily by the need to gather expertise of the best quality and covering as wide a field as possible. In the small community of sea turtle specialists, it was difficult - if not impossible - to reconcile this need with an agreement by all the parties to the dispute on each and every individual concerned. 5.8. The Panel, in consultation with the parties, prepared specific questions which it submitted to each expert individually. The experts were requested to answer only those questions which fell within their field(s) of expertise. The parties agreed that their written submissions to the Panel, including the written versions of their oral statements, be provided to the selected experts. The written responses of the experts, as well as copies of the sources 1See WT/DSB/RC/1, Article II.1 (hereinafter the "Rules of Conduct"). 2Article III.1 and VI.2 of the Rules of Conduct. WT/DS58/R Page 159 cited in support of their responses, were provided to the parties, which were afforded the opportunity to comment on them. The questions asked by the Panel and the answers provided by the experts are presented in Section V.B. The comments by the parties are reflected in Section V.C. The United States raised the fact that, in their comments, some parties had submitted new material, i.e. material which had not been submitted by the time of the second meeting of the Panel. The Panel specified that it did not intend to take this new material into account in evaluating the comments made by the parties; the Panel would take into account only those comments which were strictly related to the scientific issues under discussion with the experts. 5.9. On 21-22 January 1998, the experts were invited with the Panel and the parties to discuss their written responses to the questions and to provide further information. A transcript of this meeting is contained in Annex IV. B.QUESTIONS BY THE PANEL AND VIEWS OF THE SCIENTIFIC EXPERTS 5.10. The Panel requested the experts to focus their answers on the situation prevailing in India, Malaysia, Pakistan, Thailand and the United States, and on the following species of sea turtles: loggerhead (Caretta caretta), Kemp's ridley (Lepidochelys kempi), olive ridley (Lepidochelys olivacea), green turtle (Chelonia mydas), leatherback (Dermochelys coriacea), and hawksbill (Eretmochelys imbricata). The experts were also asked to cite references where appropriate. General Comments by the Experts Dr. J. Frazier: 5.11. The questions cover a wide range of topics, and many of them are broadly phrased, so to provide complete anwers requires considering a large number of variables. In general, differences between species, time and place all bear on different biological interpretations. Several of the questions are phrased in such a way that it would appear that what was expected was not only a concise, simple answer, but also the reduction of a series of options to one single alternative. If biology and biological conservation were as simple as rocket science, it might have been possible to provide brief, clear-cut answers. But biology is the study of life, of variation and change. It would be both arrogant and deceitful to pretend that biology, and even worse, that I myself, could consistently produce simple answers to simple questions. Furthermore, biological conservation is an interactive, iterative process, during which there are endless events of learning and experimenting. Since biological conservation is an attempt to use the information that we have in order to steward the resources on which we depend, the challenge becomes all the greater, for the needs and desires of many people and societies become paramount.