3.162. The United States believed that India, Pakistan and Thailand also confused the extrajurisdictional application of a country�s laws with the application by a country of its laws, within its own jurisdiction, in order to protect resources located outside its jurisdiction. In determining that shrimp was produced in a manner that undermined the conservation of sea turtles, the United States did not require any country to follow the US conservation policy nor did the United States undermine the sovereignty of other nations. Countries remained free to use any methods they considered appropriate in harvesting shrimp. However, if those countries chose harvesting methods that threatened sea turtles and that would undermine US conservation measures, those countries could not expect the United States to accept shrimp produced by those methods. This was no different than, for example, permitting WTO Members to refuse to support prison labour by prohibiting imports of products produced by prisoners.

3.163. India, Pakistan and Thailand responded that Article XX was silent on whether human, animals and plant or the natural resources could be protected or conserved by means of measures that would otherwise violate provisions of the GATT, included resources outside the jurisdiction of the party imposing the measure. However, this provision had to be interpreted in light of relevant rules of international law. The Charter of the United Nations was relevant to the interpretation of Article XX because it illustrated a fundamental rule of international law that individual nations had the sovereign right to regulate persons, animals or things within their jurisdiction. In light of this rule, it would be illogical to conclude the drafters of the GATT intended to permit contracting parties, under Article XX, to adopt trade measures for the purpose of coercing other contracting parties to modify their policies affecting human, animals, plants or natural resources within their jurisdiction (broadly defined), including within their territorial waters or exclusive economic zones.

3.164. India, Pakistan and Thailand considered that, contrary to what the United States claimed, CITES did not establish a rule of international law allowing states to impose trade measures to conserve natural resources located outside of their jurisdiction. The United States did not - and could not - show that CITES authorized an import embargo on a non-endangered species - shrimp - in order to protect or conserve an endangered species - sea turtles. Nor were the complainants "currently [is] obligated to take trade measures to conserve natural resources located in the jurisdiction of other countries". The only action that was in fact required or authorized under CITES was the prohibition of trade in, or possession of, certain endangered species themselves (Article VIII - Measures to be Taken by the Parties); i.e. CITES required that action be taken with respect to the importation, sale, handling or exportation of the endangered species itself once it came within the jurisdiction of the party. Therefore, CITES did not authorize the US action in this dispute nor did it illustrate why this Panel should find that the US action fell within one of the general exceptions to the GATT. CITES only demonstrated that for exceptions to these general principles of international law to be tolerated by the international community, there had to be international agreement.

3.165. The reference made by the United States to GATT provisions - Article VI and Article XX(e) - to suggest that all other provisions of Article XX should be interpreted to permit Members to take trade measures affecting the internal affairs of an exporting country was without merit. The imposition of countervailing duties under Article VI was a remedial measure expressly permitted in the GATT. The additional duty was intended to offset the effect of a subsidy on products imported into the Member imposing the measure; Article VI did not depend for its effectiveness on changes in the behaviour or policies of the exporting country. Under Article XX(e), a signatory might prohibit or otherwise regulate trade in products of prison labour. In this case, a very specific form of labour exploitation was targeted for special treatment in the GATT. The fact that these provisions were targeted at policies or practices outside of the jurisdiction of the country imposing the measure said nothing about the intended reach of Article XX(g) or (b). In fact, the presence of these very specific measures pointed to the opposite conclusion. When Members intended to allow a country to take actions which involved matters generally considered to be under the control of another country, the actions that could be taken were plainly described and the foreign policies or practices were highlighted. That was not the case here. (Indeed, to the extent that a goal of Article XX(e) was to protect the life and health of prisoners, the exception would be unnecessary if Article XX(b) were applicable to all measures taken to protect the life and health of people, animals and plants, regardless of location.) Article XX(b) was intended to protect sanitary measures from GATT scrutiny and Article XX(g) was intended to permit Members to place limits on exports of finite, physical resources within their jurisdiction so as to reserve them for later domestic use.

3.166. India, Pakistan and Thailand submitted that the location of the resource to be protected had not been raised by the parties in any of the three disputes cited by the United States. In addition, the natural resource at issue in the Gasoline dispute was clean air in the United States, not in Venezuela. India, Pakistan and Thailand were of the view that the "policy concerns" raised by the Tuna I Panel Report were probative of the issues before this Panel. Contrary to what was suggested by the United States, India, Pakistan and Thailand were not issuing an invitation to the Panel to legislate, but were asking the Panel to interpret the words of the Agreement itself. In doing so, the Panel had to be mindful of the consequences of its interpretation on the core obligations protected by the GATT. If Article XX(g) was interpreted as proposed by the United States, there would be a serious erosion of GATT rights in which the exception swallowed the rule.

3.167. The United States replied that the US measures in no way violated the principle, found in the Charter of the United Nations or in other agreements, such as the UN Convention on the Law of the Sea, that nations had the sovereign right to regulate persons, animals, or things within their jurisdiction. The only "regulation" imposed by the US measures was on the importation of shrimp into the jurisdiction of the United States; the United States did not and could not impose its sea turtle conservation measures on persons within the jurisdiction of other countries. In fact, under general principles of sovereignty, nations had the right to regulate imports into their jurisdictions. The question here, which the United Nations Charter did not answer because it did not mention trade at all, was whether WTO Members had agreed to let products into their jurisdiction if to do so would contribute to grave environmental harm. The answer to this question was found in the WTO Agreement itself: Article XX provided that no other provision of the GATT might prevent a Member from adopting measures under Article XX(g).

3.168. The United States further argued the US measures were not taken pursuant to CITES. CITES involved trade in endangered species, their parts and their products. It neither authorized or prohibited the sea turtle conservation measures of the United States which were at issue in this dispute. However, the complainants were wrong when they characterized CITES as not allowing states to impose trade measures to conserve natural resources located outside their jurisdiction. CITES restricted trade not only in live endangered species, but also in dead specimens, as well as in "any readily recognizable part or derivative thereof" (Article I(b)). For example, CITES restricted trade in rhinoceros horn powder, as well as in live rhinoceroses. The exhaustible natural resource to be conserved - the living members of endangered species - did never need to enter the jurisdiction of a CITES member for the CITES trade restrictions to apply. In short, there was no way around the fact that complainants, as parties to CITES, were obligated to take trade measures to protect exhaustible natural resources located outside their jurisdiction. Thus, CITES conclusively rebutted the complainants' claim that "general international law principles" forbade measures having the purpose of conserving resources outside a nation's jurisdiction.

3.169. The United States addressed the policy concerns raised by the complainants in support of their argument on jurisdiction, in particular that without a jurisdictional limitation on Article XX(g), there would be a "serious erosion of GATT rights in which the exception would swallow the rule". The United States noted that it was not the role of Panels under the DSU to conduct a general policy review of the GATT. Nevertheless, the United States stressed three points regarding the complainants' arguments. First, by assuming the conclusion - i.e. that the US measure violated US obligations under the GATT - and then arguing that a ruling in favour of the United States would further "erode" these obligations, the complainants were making a completely circular argument. The central question in this case was whether or not the GATT imposed on the United States the obligations claimed by the complainants. More specifically, the question was whether the United States had the obligation to accept imports of shrimp regardless of the resulting impact on the environment, or whether the United States had retained the right to limit such imports in furtherance of a bona fide conservation measure. Since the inception of the GATT, the United States, as well as many other nations, including the complainants under CITES, had continued to hold and to exercise the right, as preserved by Article XX, to regulate trade for the purpose of conserving exhaustible natural resources outside their jurisdiction. Second, the WTO Agreements did not provide for unfettered trade at all costs. Rather, the WTO Agreement, in both the Preamble and GATT Article XX, recognized that the rule of trade had to allow Members to pursue valid conservation goals. Third, the arguments that the Panel needed to impose a jurisdictional limitation on Article XX - despite an absence of textual support - in order to prevent abuses of Article XX exceptions was contrary to the reasoning of the Appellate Body in Gasoline. In that case, the Appellate Body explained that the very purpose of the Article XX chapeau was to prevent abuse of the Article XX exceptions by excluding measures applied in a discriminatory manner that would constitute arbitrary or unjustifiable discrimination, or disguised restrictions on trade. Finally, the complainants' argument that Article XX incorporated a jurisdictional limitation was contradicted by the position they had taken in the negotiation of the draft decision on Domestically Prohibited Goods (DPGs).²⁴⁸ That draft decision, unequivocally supported by all the complainants, expressly provided that a country could ban exports of a product when necessary to protect the health of persons located in another country. Exports restrictions being generally prohibited under GATT Article XI, it would appear that the negotiators had relied implicitly on the applicability of Article XX to export restriction under the draft DPGs decision. In other words, the GATT consistency of the DPGs decision implicitly relied on the protection of persons located outside the country imposing the measure. Yet, neither complainants, nor any other country, ever raised an issue concerning the GATT consistency of the DPGs decision due to some sort of jurisdictional limitation on Article XX.

3.170. India, Pakistan and Thailand replied the US response to the complainants' policy concerns was just as circular. Notwithstanding the results reached by Tuna I and Tuna II, the United States assumed that it had always retained the right to hold its market hostage to changes in other Members' environmental measures and then asserted that there was therefore no erosion in GATT rights threatened by upholding this asserted "right". Second, the WTO Agreement did not permit unfettered resort to Article XX(g) to justify unilateral trade embargoes of non-endangered natural resources. Third, the Appellate Body never considered in Gasoline whether a measure of this type exceeded the implied jurisdictional limitation in Article XX(g) because the natural resource to be protected in that case was clean air in the United States, not in Venezuela. The reference made by the complainants to the Charter of the United Nations and the Law of the Sea intended to show that the United States did not have jurisdiction over the method of harvest of shrimp in the complainants' territorial waters or exclusive economic zones, or on the high seas where US nationals and vessels were not involved. The purpose was to demonstrate that, by enacting this measure, the United States was seeking to influence the regulation of persons or things over which it had no internationally recognized jurisdiction. More specifically, the principles embodied in the UN Charter were pertinent because they established that each nation was sovereign within its jurisdiction and that no nation had the right to interfere in the sovereign affairs of another state. This fundamental understanding, adopted in the United Nations Charter contemporaneously with the drafting of the GATT 1947, informed the drafters' conception of the scope of measures that could be taken under Article XX(g) to "conserve natural resources". The drafters would not have presumed to give one contracting party the power to insist that its preferred environmental strategies be adopted by all other contracting parties as a condition of exercising normal GATT rights to free trade in non-endangered species. The drafters' understanding on the scope of the exemption being given to individual contracting parties in 1947 could be given effect by this Panel by finding an implied jurisdictional limitation in Article XX(g).

3.171. While CITES required parties to take action to protect animals in other jurisdictions, the complainants conceded that parties could multilaterally agree to a derogation of GATT rights existing between them. However, in the absence of a multilateral agreement by all affected parties, attempts to regulate persons, things or activities taking place outside the legal jurisdiction of the party seeking to impose such regulation was inconsistent with international law. CITES required that action be taken with respect to the importation, sale, handling or exportation of the endangered species itself, once it came within the jurisdiction of the party. Moreover, CITES was a multilateral agreement evidencing broad consensus regarding appropriate measures that should be taken to protect and conserve endangered species. The measure at issue in this dispute, by contrast, sought to bar access to the US market for imports of a species that was not endangered - shrimp - and represented a unilateral determination of the appropriate means to conserve resources outside the jurisdiction of the United States. Article XX was not available to protect a GATT-inconsistent measure that affected trade in a non-endangered species, nor was it available to insulate from GATT liability measures taken to force other Members to change environmental policies within their sole discretion and control. The decision on Domestically Prohibited Goods, which had not yet been finalized, would have represented an agreement by all parties to the GATT, and therefore would have represented a subsequent modification to Article XI. Members could agree among themselves to derogations of GATT rights and all of the Members could amend the agreement.

3.172. India, Pakistan and Thailand concluded that if the unfettered right to ignore GATT obligations in the pursuit of an environmental objective were secured by Article XX, there would be no limit to the types of goods that could be embargoed in the name of environmental aims. It would not be necessary to limit one's measure to things that were harvested in the same net. Under its understanding of Article XX, the United States could freely choose to embargo computer chips if it thought that such an embargo would be more effective in securing action by the complainants to implement a TEDs programme in shrimp trawl fisheries. In other words, there was no necessary connection, under the US view of Article XX(g), between the article subject to the embargo and the conservation of an endangered species. The United States could even embargo imports of prepared foods in order to secure adoption of a favoured US timber conservation programme. By imposing an embargo on one product in order to achieve the conservation of another, the United States had broken the link between the measure and the thing to be conserved. If that link could be freely broken under Article XX, there was no limit to the types and kinds of GATT-inconsistent measures that could be maintained in the name of conservations. Abuse of the GATT system in the name of conservation could only be prevented by refusing to give "safe harbour" to unilateral trade measures that affected trade in resources whose conservation was not the object of the measure.

3.173. The United States stressed the limited purpose for examining general principles of international law in the resolution of this dispute. The Panel's terms of reference were to examine the complainants' claim in light of the obligations of the United States under the "relevant provisions of the covered agreements", in this case the provisions of GATT 1994. The relevant provisions of GATT 1994, in particular Article XX, did not incorporate general rules of international law. Thus, general rules of international law were only relevant in so far as they served as aids to interpreting the text of the GATT, pursuant to Article 31(3)(c) of the Vienna Convention. However, as already explained, Articles XX(g) and (b) were clear on their face. The text did not mention any limitations based on the jurisdiction in which the persons, animals or other natural resources to be conserved or protected were located. In fact, the term "jurisdiction" was not even used in Article XX. In short, the complainants asked the Panel not to use rules of international law to interpret any particular language in Article XX, but rather asked the Panel to redraft Article XX by incorporating an entirely new limitation based on complainants' purported rules of international law.

3.174. Regarding CITES, the United States noted that the complainants acknowledged that CITES required parties to take action to protect animals in other jurisdictions. This aspects of CITES, to which the complainants are parties, disproved their theory that general rules of international law forbade countries from taking such action. Moreover, the complainants' response to this point - i.e. that parties could multilaterally agree to a derogation of GATT rights that existed between them - did not even address the point that the existence of CITES disproved their theory. Rather, the complainants' response regarding mutually agreed derogations was addressed to a different issue - the relationship between multilateral environmental agreements and a GATT Article XX rewritten to include the complainants' proposed jurisdictional limitation. Specifically, the complainants were responding to the point of the United States that under the complainants' proposed jurisdictional limitation, no multilateral environmental agreements calling for trade measures would be allowed under Article XX. The complainants failed to rebut this point. Trade measures under CITES, for instance, applied even to countries that were not parties to CITES, and thus to countries that had not agreed to any "derogations" of their rights under the GATT.

3.175. The complainants' response regarding the draft DPGs decision departed from historical facts. Pursuant to Article XXV:1 of the GATT 1947, the DPGs Working Group was meeting to "give effect to" provisions of the Agreement, with a view to "facilitating the operation and furthering the objectives of the Agreement". The DPG Working Group never proposed or considered any amendment to the GATT 1947, nor any derogations from GATT rights and obligations. The draft instrument prepared by the Working Party would have been a decision of the CONTRACTING PARTIES, not an amendment or waiver, and as such could not change or derogate from the GATT 1947. In short, the draft decision reflected the understanding of all delegations that measures for the protection of persons outside of a party's jurisdiction would be consistent with the GATT.

(ii) Drafting History of Article XX

3.176. India, Pakistan and Thailand argued that the preparatory work of Article XX(b) which, pursuant to Article 32 of the Vienna Convention could be consulted "... in order to confirm the meaning resulting from the application of Article 31 or to determine the meaning when the interpretation according to Article 31:(a) leaves the meaning ambiguous or obscure ...", also supported an interpretation whereby Article XX(b) could not be invoked to justify measures applying to animals outside the jurisdiction of the country enacting the measure. The drafting history of Article XX(b), revealed that the contracting parties' intent was to protect sanitary laws from GATT challenge. The drafting history confirmed therefore that it was the contracting parties' intent to insulate from GATT challenge only those measures designed to protect human, animal or plant life or health within the jurisdiction of the party taking the measure. The conclusion of the Tuna I Panel Report was fully supported by the drafting history.²⁴⁹ Throughout the drafting process, several delegates had provided examples of the measures at issue. All of these examples involved sanitary measures to protect human, animal or plant life or health in an importing country from exposure to infected or pest-ridden imports.²⁵⁰ Recourse to the supplementary means of interpretation therefore demonstrated that Article XX(b) was intended to apply only to measures necessary to protect the life and health of humans, animals or plants located within the jurisdiction of the Member enacting the measure.

3.177. This interpretation was further confirmed by US government publications released concurrently with the conclusion of the General Agreement in 1947 and with the adoption of amendments to the General Agreement in 1955. In Analysis of General Agreement on Tariffs and Trade, Department of State Publication 2983, Commercial Policy Series 109 (released November 1947), the following explanation of Article XX of the GATT was provided:

3.178. Further, the drafting history of other provisions contained in the original text of the General Agreement confirmed that this exception applied only to sanitary regulations. Article XXII of the original text of the General Agreement provided as follows:

This language appeared in the original (30 October 1947) GATT Article XXII, as adopted by the CONTRACTING PARTIES. In 1955, Article XXII was amended to exclude the list of subjects to which the right of consultation applied.²⁵³ However, this had been done in order to expand the scope of the provisions pursuant to which consultation could be requested, not to alter the meaning and scope of the particular exception provided by Article XX(b).

3.179. India, Pakistan and Thailand argued that there were compelling systemic considerations which supported this interpretation. As noted in the Tuna I Panel Report:

3.180. These same systemic concerns were echoed in a 1992 report on trade and the environment issued by the GATT Secretariat. The report noted that a country had a right, consistent with GATT rules, "to protect its own environment against damage from either domestic production or the consumption of domestically produced or imported products".²⁵⁵ However, the report further opined that:

After noting that GATT rules could not be used to block the adoption of environmental policies which had broad support in the world community because the GATT contracting parties could either amend the rules or grant a waiver, the report noted that the real danger was the use of unilateral trade measures: "If the door were open to use trade policies unilaterally to offset the competitiveness effects of different environmental standards, or to attempt to force other countries to adopt domestically-favoured practices and policies, the trading system would start down a very slippery slope".²⁵⁷ To avoid this threat, the exception contained in Article XX(b) should not be read to permit measures taken by one Member which affected the life or health of animals located within the jurisdiction of another Member.

3.181. Regarding Article XX(g), India, Pakistan and Thailand argued that the drafting history also supported that fact that this provision did not apply to natural resources located beyond the jurisdiction of the contracting parties enacting the measures. A review of the drafting history of the ITO Charter demonstrated that the purpose of Article XX(g) was to allow a contracting party to impose limits on the exportation of scarce natural resources located within its jurisdiction. For example, during discussion of the draft Charter provision containing the same exception set forth in Article XX(g), the following discussion occurred:

During a subsequent discussion, the Brazilian delegation suggested that "export restrictions should be permitted for the preservation of scarce natural resources even if there is no restriction on domestic consumption ...".²⁵⁹ The drafting history therefore supported the interpretation that Article XX(g) applied only to natural resources located within the jurisdiction of the Member applying the measure.

3.182. The decision of the Tuna II Panel that Article XX(g) could be applied to measures relating to resources located outside of the jurisdiction taking the measure was not instructive because it failed to take this drafting history into account. Further, in reaching its decision, the Tuna II Panel also relied, in part, on the fact that "two previous panels have considered Article XX(g) to be applicable to policies related to migratory species of fish, and made no distinction between fish caught within or outside the territorial jurisdiction of the contracting party that had invoked the provision".²⁶⁰ However, the Tuna II Panel's reliance on the two prior Panel decisions was misplaced because this precise question was never directly addressed by either of the panels referred to.²⁶¹

3.183. Moreover, there were compelling systemic considerations which supported this interpretation. As noted in the Tuna I Panel Report:

These same systemic concerns were echoed in the 1992 report on trade and the environment issued by the GATT Secretariat, referred to above in paragraph 180. In light of these concerns, Article XX(g) should be interpreted to apply only to measures relating to the conservation of exhaustible natural resources located within the jurisdiction of the party enacting the measure.

3.184. The United States argued that, since the language of Article XX(b) and Article XX(g) was not ambiguous with respect to the jurisdictional scope, there was no need to resort to Article 32 of the Vienna Convention as a supplementary means of interpretation to see that there was no mention of, let alone differentiation based upon, the location of the animal whose life or health was protected, or of the natural resource to be conserved. Nonetheless, if the Panel did examine the historical record concerning the language in Article XX(b) and Article XX(g), that record did not support the argument for imposition of a jurisdictional limitation. India, Pakistan and Thailand relied for their claim on, and adopted wholesale, the reasoning of the unadopted Tuna I panel report, which found that Article XX(b) and Article XX(g) did not allow measures to protect animal life or health outside the jurisdiction of the country taking the measure. However, that finding of the Tuna I panel was without solid support in the text or the drafting history and that panel had not thoroughly analyzed contemporaneous and subsequent practice regarding legitimate exceptions to prohibitions on quantitative restrictions. Moreover, India, Pakistan and Thailand failed to note that the Tuna II panel flatly rejected the finding of the Tuna I panel that a jurisdictional limit should be read into Articles XX(b) and XX(g).²⁶³

3.185. With regard to the drafting history of Article XX(b), the United States argued that the arguments made by India, Pakistan and Thailand proceeded from just one small part of the history, reached faulty conclusions even in the context of that one small part, and disregarded the remainder of that history. Contrary to what was asserted by the three complainants, the proposal for Article XX(b) did not date from the Draft Charter of the International Trade Organization (ITO) proposed by the United States, but had a much longer and richer heritage that contradicted the reading of that provision as proposed by India, Pakistan and Thailand. The complainants' reading of the drafting history of Article XX(b) was narrow and fragmentary, and even this narrow treatment of only one part of the historical record contained a number of leaps of logic. The fact that Article 37(b) of the New York Draft of the ITO Charter referred to "corresponding domestic safeguards under similar conditions exist[ing] in the importing country" did not itself indicate that the measures under that Article were only those to safeguard life or health of humans, animals or plants within the jurisdiction of the importing state. In fact, the opposite inference could be drawn: this language would have required a country to put equivalent domestic safeguards in place when it applied measures to protect resources outside its jurisdiction. The sources referred to by India, Pakistan and Thailand) merely indicated that Article XX included sanitary regulations, but in no way did they indicate any limitation. Further, as discussed below, the history of Article XX(b) covered far more than just sanitary regulations. Similarly, the 1947 version of Article XXII (Consultations) of the GATT, subsequent to its amendment in 1955, did include a reference to sanitary laws and regulations, but, contrary to what was asserted by the three complainants did not even refer to Article XX, and in no way indicated that Article XX(b) was limited to sanitary regulations. The history thus indicated that Article XX(b) was broader in scope than just sanitary measures.²⁶⁴ In fact, there was little doubt that Article XX(b) covered such measures as those prohibiting the importation of weapons.²⁶⁵ These were not sanitary measures. Accordingly, it was wrong to conclude that Article XX(b) was limited to sanitary measures, let alone that it was limited to sanitary measures to safeguard life or health of humans, animals or plants within the jurisdiction of the importing state. Furthermore, it did not follow that "focusing" on a particular set of measures was equivalent to concluding that a provision was exclusive of other measures.

3.186. The United States further argued that the historical analysis of India, Pakistan and Thailand was not only illogical, it was also based on an incomplete history of the provision. As one commentator stated:

3.187. The language in Article XX(b) had not been newly invented for the ITO Charter, but rather was standard language in trade agreements. The 1927 Convention for the Abolition of Import and Export Prohibitions and Restrictions ("1927 Prohibitions Convention") required that the parties thereto eliminate all quantitative restrictions, but permitted them to retain certain enumerated types of quantitative restrictions taken for non-protectionist purposes. The list of permitted legitimate restrictions, in Article 4 of the 1927 Prohibitions Convention, provided for restrictions to protect animal and plant life or health; the exception in question was phrased in language nearly identical to that later used for Article XX(b). It was clear that this exception permitted the protection of life or health of plants and animals outside the jurisdiction of the contracting party maintaining the measures. The language adopted in the ITO Charter was first debated in the discussions regarding Article 4 of the 1927 Prohibitions Convention.²⁶⁷ The same language adopted in that Convention was then used in many subsequent bilateral agreements.

To Continue With Chapter 3.188

²⁴⁸ Working Group on Exports of Domestically Prohibited Goods and Other Hazardous Substances, Report by the Chairman of the Working Group, L/6872, 2 July 1991.

²⁴⁹ India, Pakistan and Thailand referred the Panel Report on United States - Restrictions on Imports of Tuna, circulated 3 September 1991, not adopted, BISD 39S/155 paragraph 5.26.

²⁵⁰ India, Pakistan and Thailand referred to E/PC/T/A/PV/25, p. 21 (during the Second Session of the Preparatory Committee, the Chairman of the commission drafting the exception discussed the level of proof necessary when "a country refuses to import a product in order to protect domestic animals, ..."); E/PC/T/A/PV/30, p. 8 (Chairman of Commission A of Second Session of the Preparatory Committee discussed level of proof necessary when "a country decides to restrict the importation of goods in order to protect its human, animal or plant life or health"); p. 11 (US delegate to Commission A noted that the safeguard taken at the time of importation to "protect yourself" from a disease such as bubonic plague was exclusion); and p. 13 (French delegate to Commission A discussed misuses which had been made in the past of "sanitary regulations" and the damages caused in this way to "exporting countries").

²⁵¹ India, Pakistan and Thailand also referred to The General Agreement on Tariffs and Trade (GATT), An Explanation of Its Provisions and the Proposed Amendments, Department of State Publication 5813, Commercial Policy Series 147 (Released April 1955), p. 16 ("Among the customary exceptions listed in Part I of this Article [Article XX] are measures to protect public morals or human, animal, and plant life (sanitary regulations)..."). (emphasis added)

²⁵² GATT, (1995), Analytical Index: Guide to GATT Law and Practice, Vol. 2, p. 621 (emphasis added).

²⁵³ Ibid.

²⁵⁴ Panel Report on United States - Restrictions on Imports of Tuna, circulated 3 September 1991, not adopted, BISD 39S/155, paragraph 5.27 (citing Panel Report on Thailand - Restrictions on Importation of and Internal Taxes on Cigarettes, adopted 7 November 1990, BISD 37S/200, 222-223, paragraphs 73-74).

²⁵⁵ GATT, (1992), International Trade 1990-91, Vol. 1, p. 23.

²⁵⁶ Ibid., p. 22.

²⁵⁷ Ibid.

²⁵⁸ E/PC/T/C.II/50, p. 4-5 (emphasis added).

²⁵⁹ E/PC/T/C.II/QR/PV/5, p. 79 (emphasis added). India, Pakistan and Thailand also referred to E/PC/T/A/PV/25, p. 29 (Indian delegate to the Second Session in Geneva noted that the easiest and most effective way to conserve a mineral for beneficial and planned later use was through limiting exports); E/PC/T/A/PV/30, p. 6 (Australian delegate discussed imposition of export quotas or prohibitions).

²⁶⁰ Panel Report on United States - Restrictions on Imports of Tuna, circulated 16 June 1994, not adopted, DS29/R, paragraph 5.15.

²⁶¹ Panel Report on Canada - Measures Affecting the 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.

²⁶² Panel Report on United States - Restrictions on Imports of Tuna, circulated 3 September 1991, not adopted, BISD 39S/155, paragraph 5.32.

²⁶³ Panel Report on United States - Restrictions on Imports of Tuna, circulated 3 September 1991, DS21/R; Panel Report on United States - Restrictions on Imports of Tuna, circulated 16 June 1994, not adopted, DS29/R. The United States noted that in Tuna II, it was argued that "Article XX(b) could not justify measures taken to protect living things located outside the territorial jurisdiction of the party taking the measure." In rejecting this argument, the Panel explained as follows (paragraphs 5.31 and 5.32).   "The Panel recalled its reasoning under Article XX(g). It observed that the text of Article XX(b) does not spell out any limitation on the location of the living things to be protected. It noted that the conditions set out in the text of Article XX (b) and the Preamble qualify only the trade measure requiring justification ("necessary to") or the manner in which the trade measure is applied ("arbitrary or unjustifiable discrimination", "disguised restriction on international trade"). The nature and precise scope of the policy area named in the Article, the protection of living things, is not specified in the text of the Article, in particular with respect to the location of the living things to be protected.   "The Panel further recalled its observation that elsewhere in the General Agreement measures according different treatment to products of different origins could in principle be taken with respect to things located, or actions occurring, outside the territorial jurisdiction of the party taking the measure. It could not therefore be said that the General Agreement proscribed in an absolute manner such measures".

²⁶⁴ The United States noted that, at Havana, the Third Committee stated concerning the corresponding provision in the Charter: "[t]he Committee agreed that quarantine and other sanitary regulations are a subject to which the Organization should give careful attention with a view to preventing measures "necessary to protect human, animal or plant life or health" from being applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade and to advising Members how they can maintain such measures without causing such prejudice". The fact that quarantine and other sanitary regulations were singled out for careful attention under this provision indicated that the provision was intended to cover more than sanitary measures.

²⁶⁵ Measures restricting the importation of dangerous weapons were notified to the GATT since at least 1950. (GATT/CP/93/Add.1, "Quantitative Import and Export Restrictions Addendum: Note by the Executive Secretary on the statements submitted by contracting parties in response to GATT/CP/93"). In the negotiations on the draft text regarding sanitary and phytosanitary measures in the Uruguay Round governments recognized that Article XX(b) covered more than just sanitary and phytosanitary measures.

²⁶⁶ S. Charnovitz, (1991), Exploring the Environmental Exceptions in GATT Article XX, Journal of World Trade, Vol. 25, No. 5, p. 37, 44.

²⁶⁷ 97 L.N.T.S. 393.