D. COMMUNICATIONS RECEIVED FROM NGOs

3.129. The Panel received two amicus briefs submitted by non-governmental organizations (NGOs). The first one was submitted on 28 July 1997 jointly by the Center for Marine Conservation (CMC) and the Center for International Environmental Law (CIEL); the second one, submitted by the World Wide Fund for Nature (WWF), was received by the Panel on 16 September 1997. The Panel acknowledged receipt of the two amicus briefs. The NGOs concerned had also sent copies of these documents directly to the parties to the dispute. In a letter dated 1 August 1997 and at the second substantive meeting of the Panel, India, Malaysia, Pakistan and Thailand requested the Panel not to consider the content of the amicus briefs in its examination of the matter under dispute. At the second substantive meeting of the Panel, the United States, stressing that the Panel could seek information from any relevant source under Article 13 of the DSU, urged the Panel to avail itself of any relevant information in the two amicus briefs, as well as in any other similar communications. Taking the view that it had not requested such information under Article 13 of the DSU, the Panel informed the parties to the dispute that it did not intend to take these documents into consideration. The Panel observed, however, that if any of the parties to the dispute wanted to put forwards these documents, or part of them, as part of their own submission to the Panel, they were free to do so; the other parties would then have two weeks to respond to the additional material. The United States availed itself of this opportunity by designating Section III ("Statements of Facts") of the amicus brief from CMC and CIEL, as Exhibit JJ to its second submission to the Panel (hereinafter "Exhibit JJ").

3.130. Regarding the procedural aspects, India noted that the Panel had acted in an appropriate manner under the provisions of Article 13 of the DSU by refusing to accept the amicus brief submitted by the Centre for Marine Conservation, a non-governmental organization. In India's view, by adopting the "factual portions" of the amicus brief, as an attachment to its oral statement made at the second substantive meeting of the Panel, the United States had acted against the provisions of paragraph 1 of Article 12 and paragraph 7 of Appendix 3 of the DSU, especially since the latter clearly stipulated that the purpose of the second substantive meeting was for formal rebuttals to be made. The United States had decided to attach the "factual portions" of the amicus brief to its oral statement only at the end of the second substantive meeting of the Panel with the parties, after the formal rebuttal statements had been made and the question-and-answer session completed. Therefore, the attachment of this material in this manner could not be considered as an integral part of the United States' formal rebuttal, especially since the United States, as the party complained against, had exercised its right to take the floor first, and in its oral statement formally rebutted the written rebuttals submitted to the Panel by the co-complainants, including India. In this oral statement, the United States had not indicated that the "factual portion" of the amicus brief would be attached to its oral statement. In fact, the United States' oral statement made the following reference to the amicus brief: "Under Article 13 of the DSU, the Panel may seek information from any relevant source ... We submit that the Panel should avail itself of any relevant information in the Centre for Marine Conservation communication, as well as in any other similar communications". It was therefore clear that the amicus brief, either in its entirety or in its "factual portions", was not an integral part of the formal rebuttal made by the United States under the DSU procedures. Indeed, if any portion of the amicus brief, including its "factual portion", were an integral part of the oral statement made by the United States, then the oral statement made at the commencement of the second substantive meeting of the Panel should have referred to such portions in order to provide the necessary linkage between Exhibit JJ and the specific arguments made by the United States in its statement. In the absence of any such reference, this Exhibit could not be considered to be relevant to any specific arguments contained in the US formal rebuttal. India would therefore submit that all the information contained in Exhibit JJ attached to the oral statement of the United States should be rejected on these procedural grounds by the Panel.

3.131. Malaysia recalled that, by a letter dated 1 August 1997 addressed to the Chairman of the Panel, Malaysia and the other complainants had objected to the consideration of the amicus brief. This objection was based on Article 13 of the DSU which did not permit anyone to make unsolicited submissions. Article 13 merely provided that the Panel itself might seek information and technical advice from any individual or body which it deemed appropriate. It was to be noted that the amicus brief comprised not only technical advice but also legal and political arguments. Thus, the brief did not fall within the purview of Article 13. Malaysia wished to seek clarification from the Panel as to the position of the amicus brief vis-à-vis the parties. There was no legal premise upon which the Panel could rule that a party was free to adopt the arguments of the amicus brief and have it endorsed as part of their submission. Article 13 did not allow for the acceptance of an amicus brief from NGOs. The only instance where a non-party to a dispute could appear before the Panel or gain access to it was through Article 10 of the DSU, which provided third parties an opportunity to be heard by the Panel or to make a written submission.

3.132. Thailand objected to the participation in this dispute by the Center for Marine Conservation or by any other non-governmental organization through the filing of briefs or oral presentations. The WTO dispute settlement procedures nowhere provided that parties which were not Members could participate in the proceedings. Under Article 13 of the DSU, the panel itself could seek information or technical advice from any individual or body within the jurisdiction of a Member.

3.133. Pakistan endorsed the comments made by India, Malaysia and Thailand.

3.134. The Panel noted that the arguments presented in Exhibit JJ are in essence the same as those put forward by the United States and reflected in Section III.B of this Report. In their responses to Exhibit JJ, India, Malaysia, Pakistan and Thailand maintained their arguments as developed in Section III.B.

E. LEGAL ARGUMENTS

1. Articles I, XI and XIII of GATT

3.135. India, Pakistan and Thailand argued that the embargo on shrimp and shrimp products was inconsistent with the most-favoured-nation ("MFN") principle embodied in Article I:1 of GATT 1994 because physically identical shrimp and shrimp products from different nations were treated differently by the United States upon importation based solely on the method of harvest and the policies of the foreign government under whose jurisdiction the shrimp were harvested. Imports of shrimp and shrimp products from some shrimp harvesting nations were denied entry into the United States while imports of like shrimp and shrimp products from other nations were permitted entry into the United States. Further, even assuming, arguendo, that the method of harvest did affect the nature of the shrimp, the embargo violated Article I:1 because, pursuant to the embargo, wild shrimp harvested by use of TEDs were forbidden entry into the United States if harvested by a national of a non-certified country, while shrimp harvested by the same method by a national of a certified country would be permitted entry into the United States. The embargo, as applied, was also inconsistent with Article I:1 of the GATT 1994 because initially affected nations had been granted a phase-in period of three years, while newly affected nations had not been given a similar phase-in period. Thus, initially affected nations had been given the opportunity to implement the required use of TEDs without substantially interrupting shrimp trade to the United States. Products from these countries had therefore been given an "advantage, favour, privilege or immunity" over like products originating in the territories of other Members.

3.136. India, Pakistan and Thailand submitted that Article XI:1 of GATT 1994 provided for the general elimination of quantitative restrictions on imports and exports. The scope of Article XI:1 was comprehensive, applying to all measures instituted or maintained by a Member prohibiting or restricting the importation, exportation or sale for export of products other than measures that took the form of duties, taxes or other charges.²³⁷ Measures prohibited by Article XI:1 included outright quotas and quantitative restrictions made effective through import or export licenses.²³⁸ The US embargo on imports of shrimp and shrimp products pursuant to Section 609 violated Article XI:1 of the GATT. The embargo constituted a prohibition or restriction on the importation of shrimp and shrimp products from the complainants. Further, the embargo plainly was not in the nature of "duties, taxes or other charges". The fact that Thailand was now certified and therefore was not presently subject to the embargo did not alter the fact that Section 609 violated Article XI:1. Certification was contingent on the country in question acting in conformity with the certification requirements of US law and, as evidenced by the recent de-certification of Ecuador and Colombia, could be revoked at any time. The Tuna I²³⁹ and Tuna II²⁴⁰ Panel Reports involved a measure virtually identical to the restriction on shrimp imports at issue in this dispute. These two Panels reviewed primary and secondary embargoes maintained by the United States on tuna imported from nations that had not implemented conservation programmes "comparable" to those in effect in the United States to protect dolphins incidentally taken by commercial fishermen harvesting tuna. In both cases, they found that the restriction constituted a violation of Article XI.²⁴¹

3.137. India, Pakistan and Thailand further argued that Section 609 was inconsistent with Article XIII:1 of GATT 1994 because it restricted the importation of shrimp and shrimp products from countries which had not been certified, while "like products" from other countries which had been certified could be imported freely into the United States. The United States permitted or denied entry of shrimp and shrimp products based on the method of harvest. However, the method of harvest did not affect the nature of the product, as noted by the Tuna II Panel. Indeed, all foreign shrimp and shrimp products had the same physical characteristics, end-uses, and tariff classifications and were perfectly substitutable.²⁴² Thus, shrimp products which may be imported into the United States pursuant to Section 609 were "like" shrimp products from non-certified countries which were denied entry. The differential treatment of "like products" from certified and non-certified countries violated Article XIII:1 of the GATT.

3.138. Even assuming, arguendo, that the method of harvest did affect the nature of the product, the embargo violated Article XIII:1 because, pursuant to the embargo, wild shrimp harvested by use of TEDs were forbidden entry into the United States if harvested by a national of a non-certified country, while shrimp harvested by use of TEDs by a national of a certified country would be permitted entry into the United States. In other words, the identical product (shrimp caught by use of TEDs) was permitted entry if imported from a certified country and denied entry if imported from a non-certified country.

3.139. India, Pakistan and Thailand further argued that the embargo as applied, was inconsistent with Article XIII:1 because newly affected nations had received only four months notice before shrimp and shrimp products harvested without use of TEDs would be refused entry into the United States, while initially affected nations had been granted a three-year phase-in period. Thus, importation of like products from initially affected nations was not "similarly" prohibited. Finally, the fact that Thailand had been certified and therefore was not presently subject to the embargo did not alter the fact that the embargo violated Article XIII:1. Certification was contingent on the country in question acting in conformity with the certification requirements of US law, such as requiring a declaration form to accompany all shipments and, as evidenced by the recent de-certification of Ecuador and Colombia, could be revoked at any time.

3.140. Malaysia argued that the import prohibition imposed by the United States under Section 609 on the importation of shrimp and shrimp products was contrary to Article XI of GATT 1994. The United States intended to coerce other nations to follow its regulatory programme and deemed that other nations' conservation efforts were totally inadequate to ensure the survival of sea turtles. The policy requirement was that exporting countries had to ensure that their fishermen use TEDs approved in accordance with US standards while trawling for wild harvested shrimp. It was a policy condition as there were definitely other conservation methods or practices which were equally effective if not better to ensure the survival of sea turtles. As explained in Section B, Malaysia was practising effective turtle conservation policies. Therefore the import prohibition was arbitrary, discriminatory and was nothing else but a disguised restriction on international trade with a view to protecting their domestic shrimp industry with a total disregard to international law. The import prohibition was not in the nature of "duties, taxes, or other charges" and therefore was inconsistent with Article XI:1

3.141. Malaysia submitted that Article XI provision had been previously considered in Tuna I and Tuna II. In Tuna I, the panel had found that the direct import prohibition and the provisions of the Marine Mammal Protection Act ("MMPA") under which it was imposed were inconsistent with Article XI:1. In Tuna II, the panel had found that the embargoes imposed by the United States were prohibitions or restrictions in the terms of Article XI as they banned the import of tuna or tuna products from any country not meeting certain policy conditions, and were not duties, taxes or other charges. In the present case Malaysia contended that Section 609 was contrary to the US obligations under the General Agreement. The import prohibition imposed by the United States fell under Article XI as it banned import of shrimp or shrimp products from any country not meeting certain policy conditions under Section 609. Malaysia submitted that the findings of Tuna I and Tuna II were equally applicable to the facts of this case and therefore urged the Panel to find that the import prohibition was inconsistent with Article XI. Malaysia further argued that the import prohibition imposed by the United States was not justified under paragraph 2 of Article XI since that paragraph referred to situations of "critical shortages of foodstuffs or other essential products" (paragraph 2(a)) or "the application of standards and regulations for the classification, grading or marketing of commodities in international trade", (paragraph 2(b)). Nor is paragraph 2(c) applicable, since it refers solely to "restrictions".

3.142. Malaysia further submitted that nations within the wider Caribbean region had been allowed three years to adopt a programme after the publication of the US requirement, while newly affected nations had received only four months notice (29 December 1995 to 1 May 1996) before being subject to the embargo. Malaysia itself had had only three months to comply before the import prohibition came into effect, as shown by a letter dated 22 January 1996 from the US Embassy in Kuala Lumpur to the Department of Fisheries, Ministry of Agriculture which stated that "the United States Department of State must receive from your government all necessary information for a certification by April 1, 1996". Malaysia argued that this differential treatment was discriminatory and inconsistent with Article XIII:I of GATT 1994.

3.143. With regard to the violation of Articles I, XI and XIII of GATT 1994 alleged by the complainants, the United States submitted that the complainants had the burden of proving the violation.²⁴³ Since under Article XX nothing in the GATT 1994 was to be construed to prevent the adoption or enforcement of the measures at issue, there was little practical significance to attempts by the complainants to establish an inconsistency between these measures and other provisions of GATT 1994 and the United States did not need to address GATT Articles I, XI and XIII. The United States noted it did not dispute that, with respect to countries not certified under Section 609, Section 609 amounted to a restriction on the importation of shrimp within the meaning of Article XI:1 of GATT 1994. However, the United States did not agree with complainants' claims under Articles I and XIII (particularly since the US measures applied equally to all harvesting nations), but if the Panel made a finding with respect to Article XI there would be no need to reach Articles I or XIII.

2. Article XX of GATT

(a) Preliminary observations

3.144. India, Malaysia, Pakistan and Thailand submitted that, according to dispute settlement practice, the burden of demonstrating that a measure fell under one of the general exceptions provided for in Article XX was on the party invoking that provision. Noting that the United States invoked in this case paragraphs (b) and (g) of Article XX, the complainants argued that the United States was not able to demonstrate that the measure at issue fell within the scope of either of these two exceptions.

3.145. The United States argued that this dispute concerned the measures it took to protect and conserve sea turtles, an endangered natural resource that all parties to this dispute had agreed needed to be protected and conserved. There had never been a clearer or more compelling case presented to the WTO for the conservation of an exhaustible natural resource or the protection of animal life or health than this dispute. The United States required its shrimp fishermen to harvest shrimp in a manner that was safe for sea turtles. In this case, the United States only asked that shrimp imported into the United States should be harvested in a comparable manner. In this way, the US market would not cause a further depletion of endangered sea turtle species and the United States was not forced to be an unwilling partner in the extinction of sea turtles. This dispute dealt with issues that were central to how the rules of the multilateral trading system interacted with the ability of Members, both individually and collectively, to meet critical environmental objectives. The United States considered that, in assessing the facts presented by the parties to this dispute, the Panel was not called on to undertake a study of the most effective methods for sea turtle conservation. Rather, the Panel needed only consider whether the United States had met its burden of showing that the US measures complied with the relevant requirements of Article XX.

3.146. The United States noted that the World Trade Organization Agreement ("WTO Agreement"), which was the first multilateral trade agreement concluded after the UN Conference on Environment and Development, provided that the rules of trade must not only promote expansion of trade and production, but must do so in a manner that respects the principle of sustainable development and protects and preserves the environment. Yet, the complainants claimed that in becoming a Member of the World Trade Organization, the United States had agreed to accept imports of shrimp whose harvest and sale in the US market might mean the extinction from the world of sea turtles for all time. This was not true. The WTO promised that nothing in the GATT 1994 might be construed to prevent the adoption and enforcement of measures "necessary to protect human, animal or plant life or health" and of measures "relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production and consumption", subject to the requirement that "such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade". These provisions of the GATT 1994 promised that Members' measures to conserve natural resources and to protect animal life and health took precedence over any provisions of that instrument to the contrary. The United States noted that the first Appellate Body decision under the WTO also emphasized that the GATT 1994 allowed WTO Members to adopt measures to conserve and protect the environment.²⁴⁴ As stated by the Appellate Body, Article XX contained requirements designed to safeguard against measures that were intended to serve protectionist ends, rather than the important and legitimate policy objectives within the intended scope of Article XX. The record in this dispute established that the United States measures under Section 609 were bona fide measures to protect and conserve an exhaustible natural resource. The measures at issue were clearly within the scope of Article XX paragraphs (g) and (b) of GATT 1994 and thus fully consistent with US obligations.

3.147. The United States concluded that the right of WTO Members to take measures under Article XX of GATT 1994 to conserve and protect natural resources was reaffirmed and reinforced by the Preamble to the WTO Agreement. The first clause of the Preamble recognized that international trade and economic relations under the WTO Agreements should allow for "optimal use of the world�s resources in accordance with the objective of sustainable development", and should seek "to protect and preserve the environment". In sum, the WTO Agreement stated affirmatively that protection and conservation of the environment were essential objectives that were to be supported by the WTO regime.

3.148. India, Pakistan and Thailand stressed that this case was not about conservation; it was about the imposition of unilateral trade measures designed to coerce other Members to adopt environmental policies that mirrored those in the United States. The US claim that, if not allowed to maintain the measure at issue, the United States would be "forced to be an unwilling partner in the extinction of sea turtles" was a dramatic overstatement. First, because of the conservation measures implemented in India, Pakistan and Thailand respectively, the risk of extinction had abated. Second, the United States had the option to work with other nations on additional measures that could be taken to conserve sea turtles without unilaterally imposing its own solutions to the problem. Third, it was curious that, if universal TEDs usage was the only means of protecting sea turtles from extinction, the United States did not approach the complainants about an agreement on this issue until November 1996, long after the embargo had been put in place, and, indeed, after they had notified the United States and the Members of their intention to bring this dispute to the WTO for resolution.

3.149. India, Pakistan and Thailand noted that the United States referred to, but did not quote in its entirety, the Preamble of the WTO Agreement which recognized the goal of "sustainable development ..., seeking both to protect and preserve the environment". However, the Preamble went on to state that efforts to preserve the environment were to be accomplished by each Member "in a manner consistent with their respective needs and concerns at different levels of economic development", and simply invoking environmental concerns did not guarantee "safe harbour" within the narrow exceptions contained in Article XX. The US measures were therefore inconsistent with the Preamble when that language was considered in its entirety. Specifically, the United States had failed to demonstrate that the environmental policies it was insisting that other countries should adopt as a condition of access to the US market were either necessary to ensure sustainable development or consistent with the respective needs and concerns of Members at different levels of economic development. Moreover, the Preamble did not, by itself, add to or subtract from the obligations of Members under the GATT 1994. As noted by the Appellate Body in the Gasoline case, "[t]he provisions of Article XX were not changed as a result of the Uruguay Round of Multilateral Trade Negotiations". Since the language of Articles XI, I, XIII, and XX did not change between the GATT 1947 and the GATT 1994, there was no basis to conclude that Members intended any different interpretation of those provisions than that found by previous panels in their interpretations of the GATT 1947.

3.150. India further agreed with the United States that the Panel was not called on to undertake a study of the most effective methods for sea turtle conservation. India requested the Panel to focus on the trade measures introduced by the United States, namely the import prohibition on certain shrimp and shrimp products from India.

3.151. Malaysia submitted that the United States gave only a partial citation of the Preamble to the WTO Agreement. The Preamble recognised that the rule of trade was to promote expansion of trade and production in a manner that respected the principle of sustainable development and protected and preserved the environment, but it also specified that such protection and preservation of the environment and the enhancement of the means to do so had to be done in a manner consistent with each Member's respective needs and concerns at different levels of economic development.

3.152. According to the United States, the issue was whether the US measures to conserve endangered sea turtles were consistent with WTO rules or, as the complainants claimed, whether those rules required the United States to participate in the extinction of sea turtles. But the complainants' arguments - such as their request that the Panel impose a jurisdictional limitation on Article XX (see sub-section (b)(i)) - had much greater implication. If accepted, GATT 1994 would forbid WTO Members, both individually and collectively, from adopting trade measures needed to conserve the environment. The United States believed that such a severe limitation was not only inconsistent with the text of Article XX, but would be the exact wrong direction for the developing jurisprudence under the WTO, DSU and GATT 1994. The international community was increasingly aware of growing threats to the world environment. Moreover, the Preamble to the WTO explicitly provided that the rule of trade had to be applied in a manner that protected and preserved the environment. The far-reaching limitations to Members' rights suggested by the complainants did not even have support in the language of the Agreement. The GATT 1994, and in particular Article XX, could hardly be more clear in allowing Members to adopt trade measures to promote conservation goals. It was these rules, as written in the Agreement, that had to govern the resolution of this dispute, and not complainants' redrafting of these rules.

3.153. The United States did not agree with India, Pakistan and Thailand that the Preamble to the WTO Agreement should not be considered by the Panel. The United States noted that the complainants' premised their argument on the Appellate Body's statement in the Gasoline case that the "provisions of Article XX were not changed as a result of the Uruguay Round". However, the United States had never stated that Article XX had "changed". To the contrary, as shown by the plain text of the Agreement, the circumstances of the drafting of Article XX, and the subsequent practices of the contracting parties, Article XX had never included the jurisdictional limitation claimed by the complainants (see below the arguments made by the United States under sub-section (b)(i)). The United States further argued that India, Pakistan and Thailand misconstrued the statement of the Appellate Body in the Gasoline case. The Appellate Body, in its sentence immediately following the statement that Article XX "has not changed" proceeded to look at the Preamble as an aid in interpreting Article XX. The Panel should do the same here. Although Article XX did not "change" between the GATT 1947 and the GATT 1994, a Panel construing the GATT 1994 should look to the Preamble of the WTO Agreement as an aid to interpreting the GATT 1994. Indeed, under the principles of the Vienna Convention, the Preamble of a treaty was part of the "context" to be examined in interpreting the treaty's substantive provisions.

3.154. The United States noted that India, Malaysia, Pakistan and Thailand complained that the United States had not discussed the preambular language regarding sustainable development, nor the language regarding the needs and concerns of Members at different levels of economic development. However, the United States had already addressed both these issues at length. Contrary to what was argued by India, Pakistan and Thailand, the Preamble did not indicate, when referring to sustainable development, that the United States had to demonstrate that the US measures were necessary to ensure sustainable development. Rather, the Preamble stated that international trade relations should "allow[] for the optimal use of the world's resources in accordance with the objective of sustainable development". The US measures were fully consistent with this objective: shrimp fishing practices which led to mass extinction of sea turtles were not consistent with the objective of sustainable development. Conversely, by not allowing its shrimp consumption to contribute to the endangerment of sea turtles, the US measures fostered the objective of sustainable development. Furthermore, the United States had also showed that its measures were consistent with the objective of respecting the "needs and concerns [of countries] at different levels of economic development". In particular, the United States had shown that TEDs were relatively inexpensive, could be fabricated from indigenous materials, and had been successfully adopted by many countries, including developing countries.

3.155. India, Pakistan and Thailand replied that in requesting the Panel to find an implied jurisdictional limitation in Article XX(b) and (g), they were not asking the Panel to legislate, but to interpret the language of Article XX in light of the understanding of its original drafters and the structure of the Agreement (see below the arguments made by India, Pakistan and Thailand under sub-section (b)(i)). Important, indeed overriding, objectives of the GATT would be undermined if one party was given the power, under the rubric of natural resource conservation, to dictate the environmental policies that had to be followed by other governments. The interpretation proposed by the complainants would, however, not prevent WTO Members from collectively adopting trade measures necessary to conserve the environment. As found in Tuna II, Members could agree among themselves to waive GATT rights and Members as a whole could, of course, amend the agreement. India, Pakistan and Thailand also noted they did not request the Panel to ignore the Preamble to the WTO Agreement, but they asked the Panel to consider that the Preamble did not, by itself, confer any rights or exemptions from GATT obligations and that the language of Article XX remained unchanged from the GATT 1947 to the GATT 1994. The complainants also requested that the Panel consider the Preamble in its entirety.

3.156. Malaysia replied that in Malaysia trawling for shrimp did not result in extinction of sea turtles and Malaysia had adequate conservation and protection measures with respect to sea turtles which were consistent with the concept of sustainable development, as recognised in the first preambular provision of the WTO Agreement. Malaysia further did not agree that the US measures were consistent with the objectives of respecting the "needs and concerns [of countries] at different levels of economic development". The principle of sustainable development in the WTO Preamble meant that each country had a right to determine its own level of development commensurate with its needs and concerns.

(b) Jurisdictional application of Article XX(b) and (g)

(i) Text of Article XX

3.157. India, Pakistan and Thailand argued that Article 3.2 of the DSU directed Panels to apply customary rules of interpretation of public international law when interpreting the provisions of the GATT. The rules of interpretation set forth in the Vienna Convention on the Law of Treaties ("Vienna Convention") constituted customary rules of interpretation of public international law within the meaning of Article 3.2 of the DSU. Article XX did not expressly limit its coverage to the humans, animals or plants located within the jurisdiction of the Member taking the measure. Nor did Article XX(b) expressly permit a Member to take measures concerning humans, animals or plants located within the jurisdiction of another Member. The language of Article XX(b), when construed in accordance with its ordinary meaning, was ambiguous on this point. However, the terms of a treaty were not to be interpreted in a vacuum. Rather, pursuant to Article 31(c) of the Vienna Convention, "relevant rules of international law applicable in the relations between the parties" shall be taken into account together with the context of the terms. Rules of international law applicable in relations between the parties included Articles 1.2, 2.1 and 2.7 of the Charter of the United Nations, which recognized the sovereign equality of states and the principle of non-interference in the internal affairs of another state. In light of these general rules of international law, it should be presumed that Article XX(b) did not extend to measures taken by one Member that affected the life or health of the people, animals and plants within the jurisdiction of another Member, absent specific treaty language to the contrary. Regarding Article XX(g), India, Pakistan and Thailand further argued that the language of that provision was silent as to whether the exception covered only exhaustible natural resources located within the jurisdiction of the Member enacting the measure, or whether it extended to all natural resources, wherever located. However, as previously discussed, the terms of a treaty were not to be interpreted in a vacuum and the "relevant rules of international law applicable to the relations between the parties" had to be taken into account together with the context of the terms. In addition, Article 32 of the Vienna Convention stipulated that the drafting history of a provision could be resorted to in order to resolve the ambiguity.

3.158. Malaysia argued that Article XX had to be read with due consideration to the general principles of international law governing the issue of jurisdiction, as stipulated by Article 3.2 of the DSU which made it mandatory for the DSB to apply customary rules of interpretation of public international law.

3.159. The United States argued that the argument made by India, Pakistan and Thailand that a jurisdictional limit should be imposed on Articles XX(b) and XX(g) was entirely without merit, and should be rejected by the Panel. The United States noted first that the sea turtles protected and conserved by the US measures in fact did not fall exclusively within the complainants' respective jurisdiction. To the contrary, sea turtles were a shared global resource. They had ranges extending thousands of kilometres, and navigated through the coastal waters of many countries. If any one country in the range of a sea turtle population adopted practices resulting in high sea turtle mortality, the population would be endangered throughout its entire range. Thus, even if India, Pakistan and Thailand could support their proposal for a jurisdictional limitation on Article XX (and they could not) such a limitation would not apply to sea turtles, as their ranges extended throughout the high sea and waters under the jurisdiction of many nations, including the United States.

3.160. The United States further argued that Article XX paragraph (b) and (g) were not ambiguous with regard to their jurisdictional scope. Nothing in the language of these two paragraphs raised any question with regard to a possible limitation on the jurisdiction in which the animals or other natural resources were located. Contrary to what was asserted by India, Pakistan and Thailand, the absence of an explicit statement of inclusion did not create an ambiguity. For example, Article XX(b) also did not explicitly state that the animals could be found on the land or in water - but certainly no one would claim that Article XX(b) was "ambiguous" with regard to coverage of both terrestrial and aquatic animals because the language did not explicitly include them. In short, Articles XX(b) and XX(g) were clear on their face: they unambiguously applied to "animals" and "natural resources", without any limitation to the location of the animals or natural resources. In addition, the interpretation proposed by India, Pakistan and Thailand was not supported by past adopted panel reports. Nowhere in the U.S.-Canada Tuna, Herring and Salmon, or Gasoline decisions had the panels first analysed whether the resource to be protected was outside the jurisdiction of the country taking the measure.²⁴⁵

3.161. The complainants' proposed jurisdictional argument was not supported by the Charter of the United Nations and the principles embodied therein concerning "the sovereign equality of States and the principle of non-interference in the internal affairs of another state". General sovereignty principles in the Charter of the United Nations did not address whether endangered species located in one country could be the subject of concern of another country. And, in fact, Malaysia stated in this case that "the concept of permanent sovereignty had not prevented international law from treating conservation issues within a state's territory as a question of common concern in which the international community possesses a legitimate interest" (see below paragraph 3.274). Moreover, CITES, to which each of the four complainants was a party, did explicitly address this issue. As noted above, CITES prohibited the trade in certain endangered species - including endangered species located in the jurisdictions of all other countries - even in countries not parties to CITES. Thus, under CITES, each of the complainants currently was obligated to take trade measures to conserve natural resources located in the jurisdiction of other countries. This showed that, contrary to what was argued by the complainants, there was no general principle of international law prohibiting countries from taking measures to conserve endangered species located in the jurisdiction of other countries. Further, the GATT itself refuted any argument that trade measures generally should not have effects on the internal affairs of exporting countries. For example, Article VI allowed for the imposition of countervailing duties in response to internal subsidies granted by exporting countries, and Article XX(e) provided that measures may be taken with regard to the products of prison labour.²⁴⁶ Moreover, the Gasoline Panel had had no difficulty accepting that the United States, in its desire to conserve clean air pursuant to Article XX(g), was entitled to apply requirements that affected refineries located in Venezuela and owned by the Venezuelan State.²⁴⁷

To Continue With Chapter 3.162

²³⁷ Panel Report on Japan - Trade in Semi-conductors, adopted 4 May 1988, BISD 35S/116, paragraph 104.

²³⁸ See for instance the Panel Report on Thailand - Restrictions on Importation of and Internal Taxes on Cigarettes, adopted 7 November 1990, BISD 37S/200.

²³⁹ Panel Report on United States - Restrictions on Imports of Tuna, circulated 3 September 1991, not adopted, BISD 39S/155.

²⁴⁰ Panel Report on United States - Restrictions on Imports of Tuna, circulated 16 June 1994, not adopted, DS29/R.

²⁴¹ Panel Report on United States - Restrictions on Imports of Tuna, circulated 16 June 1994, not adopted, DS29/R; Panel Report on United States - Restrictions on Imports of Tuna, circulated 3 September 1991, not adopted, BISD 39S/155. See also Panel Report on United States - Prohibition of Imports of Tuna and Tuna Products From Canada, adopted 22 February 1982, BISD 29S/91.

²⁴² India, Pakistan and Thailand referred to the Panel Report on United States - Standards for Reformulated and Conventional Gasoline, adopted 20 May 1996, WT/DS2/9, paragraph 6.9 ("Chemically identical imported and domestic gasoline by definition have exactly the same physical characteristics, end-used, tariff classification, and are perfectly substitutable and are therefore like products").

²⁴³ Appellate Body Report on United States - Measure Affecting Imports of Woven Wool Shirts and Blouses from India, adopted 23 May 1997, WT/DS33/AB/R, p. 16 ("[A] party claiming a violation of a provision of the WTO Agreement by another member must assert and prove its claim").

²⁴⁴ The United States referred to the Appellate Body Report on United States - Standards for Reformulated and Conventional Gasoline, adopted 20 May 1996, WT/DS2/9, p. 18 ("Article XX of the General Agreement contains provisions designed to permit important state interests - including the protection of human health, as well the conservation of exhaustible natural resources - to find expression. The provisions of Article XX were not changed as a result of the Uruguay Round of Multilateral Trade Negotiations ... WTO Members have a large measure of autonomy to determine their own policies on the environment (including its relationship with trade), their environmental objectives and the environmental legislation they enact and implement. So far as concerns the WTO, that autonomy is circumscribed only by the need to respect the requirements of the General Agreement and the other covered agreements.")

²⁴⁵ Panel Report on United States - Standards for Reformulated and Conventional Gasoline, adopted 20 May 1996, WT/DS2/R; Panel Report on Canada - Measures Affecting Exports of Unprocessed Herring and Salmon, adopted 22 March 1988, BISD 35S/98; Panel Report on United States - Prohibition of Imports of Tuna and Tuna Products from Canada, adopted 22 February 1982, BISD 29S/91.

²⁴⁶ The United States noted that, as the Panel stated in Tuna II, measures "could in principle be taken under other paragraphs of Article XX and other Articles of the General Agreement with respect to things located, or actions occurring, outside the territorial jurisdiction of the party taking the measure. An example was the provision in Article XX(e) relating to the products of prison labour". Panel Report on United States - Restrictions on Imports of Tuna, circulated 16 June 1994, not adopted, DS29/R, paragraph 5.16.

²⁴⁷ Panel Report on United States - Standards for Reformulated and Conventional Gasoline, adopted 20 May 1996, WT/DS2/R, paragraph 3.14.