3.188. The 1927 Prohibitions Convention was considered to be the first multilateral trade agreement. Article 4 of the 1927 Prohibitions Convention stated, in relevant part:

The scope of Article 4(4) was clarified by the drafters of the Prohibitions Convention in an accompanying Protocol. This Protocol stated that "[t]he protection of animals and plants against disease also refers to measures taken to preserve them from degeneration or extinction and to measures taken against harmful seeds, plants, parasites and animals". ²⁶⁹ All nations that signed the Convention also signed the Protocol. Furthermore, the Draft Convention made separate reference to public health and the protection of plants and animals:

3.189. Thus, the language used in the 1927 Prohibitions Convention (virtually identical in key respects to the language used in the ITO Charter and in GATT Article XX(b)) included protection against extinction, and thus was not limited to purely domestic concerns or to sanitary measures alone. This interpretation of the Prohibitions Convention was bolstered by the drafters' perceptions of the provision and by practice at the time. The United States had numerous environmental statutes in effect at the time of drafting, none of which was challenged during treaty negotiations.²⁷¹

3.190. The United States further submitted that many of the national conservation laws in force at the time of the Prohibitions Convention contained import and export restrictions for solely conservation purposes. For example, the Alaska Fisheries Act, as amended in 1926²⁷², prohibited domestic salmon fishing in certain waters and during certain times of the year for the preservation of salmon stocks. It also prohibited the importation of "salmon from waters outside the jurisdiction of the United States taken during any closed period provided for by this Act". The Lacey Act of 1900 prohibited the importation of wild animals and birds without a special permit.²⁷³ Other laws included the Underwood Tariff of 1913, prohibiting the importation of certain feathers and plumes of wild birds. In addition to these national laws, there were also several multilateral treaties for purposes of conservation in existence at the time of the Abolition Convention. Two such treaties included a 1911 Convention for Preservation and Protection of Fur Seals and a 1916 Convention for the Protection of Migratory Birds. Both of these treaties contained trade restrictions.

3.191. During the period between the 1927 Prohibitions Convention and the negotiation of the ITO Charter and the GATT, governments used varying formulas in providing for exemptions for conservation and sanitary measures. For example, the 1927 Prohibitions Convention exempted "prohibitions or restrictions imposed for the protection" of plant and animal life or health.²⁷⁴ Some bilateral trade treaties to which the United States was a party exempted prohibitions or restrictions "imposed for protection of" plant and animal life or health, while others exempted prohibitions or restrictions "designed to protect" plant and animal life and health.²⁷⁵ Bilateral commercial treaties between other countries contained similar language. A commercial agreement between Australia and the Belgo-Luxemburg Economic Union exempted all prohibitions or restrictions "imposed for the protection of animals and plants".²⁷⁶ A commercial convention between Estonia and France allowed for "import and export prohibitions to the following cases: war time measures, measures imposed for reasons of health or public security, the protection of animals or plants...".²⁷⁷ The British government, in an exchange of notes with Brazil constituting a temporary agreement regarding commercial relations, exempted "prohibitions or restrictions upon imports into the United Kingdom for the purpose of protecting animals and plants (that is to say, protection against disease, degeneration or extinction, as well as measures taken against harmful seeds, plants and animals)".²⁷⁸ The existence of these laws and agreements at the time of the drafting of the Prohibitions Convention demonstrated that Article 4(4) indeed was intended to encompass measures that protected both domestic and non-domestic animal and plant life and health.

3.192. The United States argued that the practice of governments since the entry into force of the GATT 1947 further supported that Articles XX(g) and (b) were not subject to a jurisdictional limit. Treaties that protected plants and animals outside the territory of the parties existed in 1947, and more were agreed afterward. These treaties included both sanitary measures and conservation measures, and provided for trade restrictions and measures which protected the environment beyond the territories of the parties thereto. At no time were these treaties challenged as being inconsistent with the GATT because they protected plants and animals extraterritorially, or because they imposed trade restrictions for non-economic reasons. For example, the Convention Relative to the Preservation of Fauna and Flora in their Natural State provided that "the import of trophies which have been exported from any territory to which the present Convention is applicable in full, whether a territory of another Contracting Government or not, shall be prohibited".²⁷⁹ Similarly, the Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere stated that "[e]ach Contracting Government shall take the necessary measures to control and regulate the importation, exportation and transit of protected fauna and flora or any part thereof".²⁸⁰ The International Convention for the Protection of Birds prohibited "the import, export, transport, sale, offer for sale ... of any live or dead bird or any part of a bird killed or captured in contravention of the provisions of the Convention".²⁸¹ The Agreement on Conservation of Polar Bears stated that "[a] Contracting Party shall prohibit the exportation from, the importation and delivery into, and traffic within, its territory of polar bears or any part or product thereof taken in violation of this agreement".²⁸² The Convention on Conservation of North Pacific Fur Seals required that each party "prohibit the importation and delivery into and the traffic within its territories of skins of fur seals taken in the area of the North Pacific Ocean mentioned in Article III [which includes the high seas] ...".²⁸³ The Convention on the Prohibition of Fishing with Long Drift Nets in the South Pacific, which allowed each party to "prohibit the landing of driftnet catches within its territory ..., prohibit the importation of any fish or fish product, whether processed or not, which was caught using a driftnet".²⁸⁴

3.193. The United States added that the practice of governments in this area continued today. In recent years, nations had negotiated a number of multilateral treaties for the purpose of protecting the environment and conserving living and natural resources.²⁸⁵ Most of these treaties had extraterritorial ramifications for the nations party to the treaties, and many of the treaties included trade measures. In drafting these treaties, governments had been cognizant of the requirements of the GATT and had perceived that Article XX would permit them to implement the trade measures.²⁸⁶ The Montreal Protocol on Substances that Deplete the Ozone Layer provided one example of nations seeking to protect life and health of humans, animals and plants without regard to their location.²⁸⁷ The Montreal Protocol required, inter alia, that countries restrict production and consumption of ozone-depleting substances and implement trade restrictions against countries that did not institute such a restriction. There was no specific reference to, and no distinction within, the Protocol for protection of life or health within a country�s jurisdiction and protection of life or health outside the country�s jurisdiction. As noted above, CITES imposed trade restrictions for the purpose of conserving endangered species, regardless of where those species were located. The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal prohibited the import and export of hazardous waste to ensure the environmentally sound disposal of that waste. In 1995, at the third Conference of Parties to the Basel Convention, an amendment to the Convention was adopted, with the support of the complainants, to ban trade in hazardous wastes between developed and developing countries. This ban extended, inter alia, to exports of valuable recyclable wastes from developed country parties to developing countries that were not parties to the agreement.

3.194. The United States was therefore of the view that, as could be seen from the actions engaged in by governments, there had been a long-standing practice, continuing through today, of contracting parties maintaining measures to protect and conserve animal and plant life and health outside their jurisdiction. There had never been a historical distinction between the protection of domestic plants and animals and non-domestic plants and animals. Rather, the obligation of a contracting party had been to ensure that the burden imposed by any such measure was placed equitably on domestic and foreign products. The territorial limitation called for by India, Pakistan and Thailand regarding the scope of Article XX would call into question a broad range of agreements entered into by governments. If India, Pakistan and Thailand sought such a limitation, it should negotiate with other governments, not request the Panel to legislate such a limitation and proclaim that it had lain hidden within the GATT for decades. This analysis indicated that, in order to accommodate multilateral treaties relating to the environment, nations had interpreted Article XX to allow for global -territorial and extraterritorial- protection of life and health.

3.195. Regarding the drafting history of Article XX(g), the United States noted that the only examples of drafting history cited by India, Pakistan and Thailand were statements by three delegations indicating that export restrictions should be included within the scope of measures covered by Article XX(g). Nothing in these examples indicated that Article XX(g) measures should be limited to measures involving the export of natural resources within a country's jurisdiction. In fact, the text of Article XX showed that when the drafters intended to limit Article XX exceptions so that only export restrictions would be permitted thereunder, they did so explicitly. Article XX(i) covered measures necessary to ensure adequate supplies of domestic materials during periods when a stabilization plan was in effect, and Article XX(i) was explicitly limited to restrictions "on exports". Article XX(g) contained no similar limitation, and India, Pakistan and Thailand provided no rationale for reading such a limitation into the text of the GATT.

3.196. The United States submitted that the argument made by India, Pakistan and Thailand to request this Panel to construct a jurisdictional limitation to Articles XX(b) and XX(g)²⁸⁸ because if there would be no jurisdictional limitation, "... each contracting party could unilaterally determine the international life and health protection policies from which other contracting parties could not deviate without jeopardizing their rights under the General Agreement" amounted to urging the Panel to legislate and to requesting for a policy review of the GATT 1994. Nowhere did the complainants demonstrate that the drafters of the GATT had these particular policy concerns in mind, either in the drafting history or the text of the GATT. As demonstrated above, the GATT was drafted to permit countries to take action to protect animal and plant health both within and outside their borders. The three complainants' arguments amounted to a post hoc "bootstrap" for an erroneous proposition. Their concern was that additional conditions were needed on Article XX(b) and XX(g) to protect them from their spectre of "unilateralism". Additional conditions to deal with policy concerns were the province of negotiations, not panel proceedings. The complainants did not explain how these conditions were to suddenly appear in the GATT 1994 as a result of this proceeding.

3.197. The United States further argued that the rationale of India, Pakistan and Thailand was circular in nature. They argued that without a jurisdictional limitation, the "rights" of other Members under the GATT 1994 would be jeopardized. This reasoning, however, assumed that those "rights" of other Members were such as to be infringed in the absence of a jurisdictional limitation, and then deduced that a jurisdictional limitation was needed in order to ensure that the rights were not infringed. This became an interesting exercise in tautology, but hardly shed any light on Article XX. Instead, the interpretation proposed by India, Pakistan and Thailand would attempt to dictate to importing contracting parties that their markets must be available as an incentive for the destruction of exhaustible natural resources. Contracting parties over the years since the inception of the GATT had adopted and enforced a number of measures, both required by their obligations under other international agreements and not so required, to protect the environment. There had been no questioning of the ability of these parties to adopt these measures consistent with their obligations under the GATT, since Article XX provided for them. However, the interpretation of Article XX proposed by the complainants would mean that suddenly a broad range of legitimate environmental protection measures would be thrown into question under the GATT 1994. The practices of the contracting parties before and after the GATT 1947 demonstrated that there was no perceived limitation under the GATT on the ability of contracting parties to take these trade measures for conservation and plant and animal protection purposes. It did not make sense to suggest that the GATT 1994 now should be interpreted to create difficulties for these measures. A Panel should hesitate before accepting an interpretation of the GATT that would have such broad-ranging implications for a large number of important measures maintained by contracting parties - including those pursuant to other international obligations - particularly where that interpretation was unsupported by the plain language of the Agreement.

3.198. India, Pakistan and Thailand maintained that the drafting history of Article XX(g) supported the inference of a jurisdictional limitation, and rejected the US assertion that the language of Article XX(g) was ambiguous on its face regarding the presence or absence of a jurisdictional limitation. As an initial matter, the complainants noted that Tuna I had concluded there was a jurisdictional limitation inherent in Article XX(g). That panel must have concluded therefore either that the language was ambiguous in this respect or that the language was unambiguous but nevertheless supported a jurisdictional limitation. Moreover, using a primary means of treaty interpretation (i.e., relevant rules of international law applicable in relations between the parties), India, Pakistan and Thailand had demonstrated that the best interpretation of Article XX(g) was that it did not apply to measures taken to coerce other nations to adopt policies to conserve natural resources under their jurisdiction. To the extent that this interpretation was or could be in conflict with other possible interpretations of the language of Article XX(g), resort to the drafting history was appropriate. That history confirmed the interpretation defended by the three complainants.

3.199. The US attempts to minimize the impact of the drafting history by suggesting that India, Pakistan and Thailand quoted selectively from the history was unavailing. The US had not, and could not, point to any drafting history to show that the negotiators intended to include import restrictions within the scope of Article XX(g). Rather, the history clearly showed that the negotiators thought of Article XX(g) as applying to exempt certain export restrictions from normal GATT disciplines. Indeed, even the single statement cited by the United States in support of its interpretation of the term "exhaustible" showed the intent of the drafters that export restrictions aimed at conservation of scarce or valuable domestic resources be exempted from GATT obligations under Article XX(g) (see paragraph 3.243). Moreover, inclusion of the term "export" within Article XX(i) did not mean, as claimed by the United States, that the drafters used the word "export" whenever they intended to limit Article XX exceptions to export restrictions. Article XX(i) covered measures "involving restrictions on exports of domestic materials necessary to ensure essential quantities of such materials to a domestic processing industry during periods when the domestic price of such materials is held below the world price as part of a governmental stabilization plan; ..." Since it would not make sense to impose import restrictions to ensure essential quantities of a domestic material, it was illogical to claim, as did the United States, that the term "export" was included within Article XX(i) for purposes of limiting the scope of the exception.

3.200. India, Pakistan and Thailand argued that the agreements referred to by the United States to suggest that Tuna I did not thoroughly analyze or take into account contemporaneous and subsequent practice regarding legitimate exceptions to prohibitions on quantitative restrictions did not represent an appropriate means of interpretation of the GATT. The US criticism therefore was wholly without merit. Prior treaties were not generally relevant to construction of a treaty under the general rules of interpretation set forth in the Vienna Convention.²⁸⁹ Moreover, because none of these treaties could be construed as establishing the agreement of "all" of the parties to the GATT regarding interpretation of the GATT, such agreements did not constitute an appropriate means of interpretation of the GATT. The US arguments were equally unpersuasive with respect to the agreements which the United States claimed constituted subsequent practice. First, it was not clear why the United States had included the Convention Relative to the Preservation of Fauna and Flora in their Natural State or the Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere as "subsequent practice" since that agreement had entered into force on 14 January 1936 and 30 April 1942, respectively. Moreover, with respect to those agreements that were "subsequent" to the GATT, the United States had provided no evidence that they established the agreement of the parties regarding the interpretation of the GATT 1994. As noted by Tuna II, agreements of this kind did not constitute appropriate secondary means of interpretation.²⁹⁰

3.201. India, Pakistan and Thailand argued that Tuna II, contrary to statements made by the United States in this proceeding, never expressly found that a Member could impose measures respecting persons or things outside of its jurisdiction under Article XX(g). While the panel found in response to an argument made by one of the parties that there was no territorial limitation inherent in Article XX(g), the permissible actions or permissible regulation of persons or things outside of the territory of a Member discussed by the Panel were all premised on some other basis for the exercise of legal jurisdiction by the Member imposing the measure. The Tuna II Panel Report stated, in its concluding remarks on the jurisdictional issue, that:

3.202. The Panel never stated or concluded that, under Article XX(g), a contracting party could adopt a measure related to the conservation of natural resources wholly outside its legal jurisdiction, territorial or otherwise. Rather, the panel moved on to other issues and ultimately found that Article XX(g) did not apply because the measure in question did not "relate to" the conservation of dolphins. Thus, Tuna II did not reach the issue raised by India, Pakistan and Thailand in this proceeding. The complainants' claim was not that there should be a territorial limitation read into Article XX(g), it was that there should be a jurisdictional limitation such that the Member imposing the measure had some legitimate claim of jurisdiction over the persons or things it was seeking to regulate or conserve and was not impinging upon the regulatory prerogatives of other Members. Nothing in the Tuna II Panel Report was inconsistent with the complainants' position that the US measure at issue in this case was beyond the scope of Article XX(g) because it was addressed to the conservation of natural resources exploited in the complainants' territorial waters or exclusive economic zone by their vessels and nationals over which the United States had no legitimate claim of jurisdiction.

3.203. Regarding the drafting history of Article XX(b), India, Pakistan and Thailand declared that the United States had pointed to nothing which demonstrated that the parties intended it to apply to measures to protect the life or health of people, animals, or plants outside of the jurisdiction of the Member applying the measure. The one example cited by the United States, prohibitions against the importation of weapons, was also directed at protecting the life and health of citizens of the Member applying the measure. Contrary to the US assertions, the 1927 Convention for the Abolition of Import and Export Prohibitions and Restrictions was not relevant to this Panel's inquiry. First, inasmuch as it had entered into force prior to the GATT 1947, it constituted neither subsequent agreement nor subsequent practice pursuant to Article 31 of the Vienna Convention. Nor had the United States suggested that the provisions of that Convention rose to the level of relevant rules of international law applicable in the relations between the parties. Moreover, as noted by the Tuna II Panel in response to almost identical arguments by the United States, this agreement did not constitute supplementary means of interpreting the GATT 1994.²⁹² Finally, the language of the 1927 Convention cited by the United States did not even support the proposition that the provision cited was intended to apply outside the jurisdiction of the party enacting the prohibition or restriction.²⁹³ If any conclusions could be drawn from the cited provision, it was that conservation measures relating to animals should be analysed pursuant to Article XX(b).²⁹⁴ If the US interpretation were to be accepted, the United States could decide, for instance, that it was in a better position than Thailand to determine how clean the air should be that Thai citizens breathed. It might then undertake to prohibit the importation of products made in factories that did not follow US mandated air emissions standards. Or, the United States might decide that water quality was of importance to the life and health of freshwater fish in China and might then ban the importation of goods that were manufactured by water polluting industries. Who could deny that clean air and clean water were necessary to the health of living things? The issue was who had the right to decide; who had the right to make the trade-off between additional environmental protection and economic growth. The drafters of the GATT clearly never intended to hand to a contracting party the right to make market access contingent upon the adoption of that party's preferred environmental policies in the territory or under the jurisdiction of another contracting party. Only by finding an implied jurisdictional limitation in Articles XX(b) and (g) could the GATT and this Panel definitely avoid reaching this absurd result.

3.204. The United States maintained that all the multilateral trade agreements cited above, adopted before and after the GATT 1947, in which the Parties agreed to trade measures for the conservation of natural resources outside of their jurisdiction, were relevant under Article 31(3)(c) of the Vienna Convention. In particular, all these agreements rebutted the complainants' argument that measures to conserve resources outside of a country's jurisdiction were inconsistent with international law. It was quite ironic that the complainants placed such heavy reliance on the UN Charter which never even mentioned trade, and then argued that multilateral trade agreements calling for trade measures were not relevant to the issues in this dispute. In addition, the post-1947 Agreements referred to were subsequent practice in the application of the treaty, pursuant to Article 31(3)(c) of the Vienna Convention, while the Agreements completed prior to the GATT 1947 were valid supplementary means of interpretation under Article 32 of the Vienna Convention. In particular, the pre-1947 Agreements "confirm[ed] the meaning resulting from the application of Article 31" that Article XX had never been intended to have any sort of jurisdictional limitation. As the United States had already explained, these treaties were particularly helpful in that they reflected the understanding of the 1927 Prohibitions Convention, which was a direct precursor of GATT Article XX. The United States agreed with the complainants that the two pre-1947 Conventions²⁹⁵ should have been referred to not as subsequent practice, but as circumstances of conclusion of the GATT 1947.

3.205. The United States considered that India, Pakistan and Thailand mischaracterized the findings of the Tuna II panel when claiming that the Tuna II Panel "never expressly found that a Member could impose measures respecting persons or things outside of its jurisdiction under Article XX(g)". The Tuna II panel stated as follows:

The distinction the complainants tried to make between a "territorial" and a "jurisdictional" limitation was in fact only terminology. The Tuna II Panel explicitly relied on Article XX(e) which acknowledged that Members could take trade measures with respect to persons located solely within another country. Likewise, the Tuna II Panel found that Article XX(g) and XX(b) extended to measures intended to conserve resources outside the country imposing the measure. This finding applied equally to both the dolphins involved in the Tuna cases, and to the sea turtles involved here. It was simply not the case, as India, Pakistan and Thailand asserted, that the Panel in Tuna II had not rejected the argument that Article XX contained a jurisdictional limitation. Furthermore, the EC made this very same point regarding the Tuna II Panel Report in its third party submission (see paragraph 4.30). The EC also noted, as did the United States, that "no jurisdictional limitation on use of Article XX was imposed by the Appellate Body in the Reformulated Gasoline case" (Ibid).

3.206. India, Pakistan and Thailand replied that the United States misread the Vienna Convention when arguing the pre-1947 international Agreements were "relevant rules of international law". The complainants considered that in interpreting treaties, the Vienna Convention permitted reference to contemporaneous or subsequent agreement by "all of the parties" and contemporaneous or subsequent agreement by fewer than all of the parties which was later accepted by "all of the parties". The Vienna Convention also permitted reference to other "relevant rules of international law". However, this did not mean that reference could be made to agreements that did not involve all of the parties in order to interpret a term or terms in the Agreement, or the scope of the Agreement. "Relevant rules of international law" meant customary international law or rules to which all Members could be said generally to subscribe. Similarly, the post-1947 Agreements cited by the United States were not subsequent practice in application of the treaty because those agreements made no reference to the GATT and were not signed by "all parties to" the GATT 1947.

3.207. With respect of the Tuna II Panel Report, India, Pakistan and Thailand explained that by the term "jurisdiction" they referred not only to territorial jurisdiction, but to any form of legal jurisdiction appropriately exercised under recognized principles of international law. The complainants' view that Article XX(g) contained an implied jurisdictional limitation was supported by customary rules of international law which recognized the sovereignty of States to control persons or things within their legal jurisdiction, and by the drafting history of Article XX(g). An implied jurisdictional limitation was also vital to avoid a fundamental redistribution of rights and obligations under the GATT; one that handed nations with large markets the means to coerce other states to conform their environmental laws, conservation and health policies with those of the importing party as a condition of exercising rights that were otherwise guaranteed by the GATT. India, Pakistan and Thailand maintained that the Tuna II Panel Report never expressly found that a contracting party could impose measures with respect to persons or things outside its legal jurisdiction under Article XX(g). Rather, the Panel found that "the policy to conserve dolphins in the eastern tropical Pacific Ocean, which the United States pursued within its jurisdiction over its nationals and vessels, fell within the range of policies covered by Article XX(g)". That Panel never found that a contracting party could adopt a measure involving citizens and vessels or related to the conservation of natural resources falling within the exclusive economic zone of another contracting party. Indeed, the fact that some or all of the shrimp harvested in this case was harvested within the complainants' exclusive economic zone gave rise to an important distinction between the Tuna case and this case. There was even less justification for the assertion of jurisdiction by the United States in this case than in the Tuna case. Rather than reaching the issue of whether the United States could assert its jurisdiction on the high seas to foreign nationals and vessels harvesting tuna, the Tuna II Panel moved on to other issues and ultimately found that the measures taken to force other contracting parties to change their environmental policies did not "relate to" the conservation of exhaustible natural resources as set forth in Article XX(g) and were not "necessary" under Article XX(b). Thus, the Panel never specifically ruled on the precise jurisdictional issue raised by the complainants in this case. All of the drafting history reviewed by India, Pakistan and Thailand concerning this provision illustrated that the drafters were concerned to provide contracting parties with the latitude to conserve finite economic resources within their respective jurisdictions from depletion through unrestricted exploitation and exportation. The only drafting history cited by the United States was fully consistent with this interpretation. Thus, the framers had understood Article XX(g) to extend to things within the legal control of the contracting party enacting the measure. There was nothing in the expressed intent of the framers that was inconsistent with the notion of an implied jurisdiction limitation in this provision.

3.208. The United States replied that the complainants, not the United States, misread the Vienna Convention in noting the relevance of international agreements. The complainants' paraphrasing was inaccurate, and the words they quoted twice ("all of the parties") were not even found in Article 31. The United States also disagreed with the explanation given by the complainants that the "relevant rules of international law" mentioned in Article 31(3)(c) were "rules to which all contracting parties could be said generally to subscribe". In fact, the sources of customary international law were generally considered to include international conventions; international custom, as evidence of a general practice accepted as law; general principles of law recognized by nations; judicial decisions; and scholarly writings.²⁹⁷ Nonetheless, the complainants proposed definition of "relevant rules of international law" did not even support their position. Certainly, not all GATT contracting parties could be said to subscribe to the complainants' posited rules of international law when many of those nations, including the complainants themselves, had entered into agreements calling for trade measures for the purpose of conserving resources outside of their jurisdiction. The United States also disagreed with the complainants' claim that the Tuna II Panel did not "reach" the issue of jurisdictionality. The Panel did reach this issue and ruled against the Tuna II complainants on their theory that Article XX did not apply because the measures sought to conserve dolphins outside of the United States. The United States repeated that the drafting history of Article XX included its precursor, the Prohibitions Convention, and that history was not consistent with the complainants' theory. Moreover, a number of international conservation agreements that called on parties to take actions to deal with matters beyond their jurisdiction existed at the time Article XX was drafted. The complainants showed no evidence that the drafters of GATT were seeking to change or limit this practice.

(c) Article XX(b)

3.209. The United States argued that, since the measures under Section 609 fell within the scope of Article XX(g) and met each requirement of the Article XX chapeau (see section (d) and (e) below), the Panel needed not, in accordance with the principle of "judicial economy" favoured by the Appellate Body²⁹⁸, decide on the issue of whether the US measures fell within the scope of Article XX(b). However, should the Panel find that the US measure met the requirements of the Article XX chapeau but that for some reason Article XX(g) did not apply, then the Panel should find that the US measures were within the scope of Article XX(b).

3.210. India, Pakistan and Thailand responded that, since the United States did not meet the requirements under Article XX(g) and under the chapeau of Article XX (see section (d) and (e) below), the analysis of Article XX(b) was needed. Moreover, because the measures at issue purported to protect the life and health of sea turtles, a biological resource, the measures should be analysed under Article XX(b) rather than XX(g).

To Continue With Chapter 3.211

²⁶⁸ 97 U.N.T.S. p. 405.

²⁶⁹ Ibid., Section III(a).

²⁷⁰ Preliminary Draft Agreement Established by the Economic Committee.

²⁷¹ The United States noted that it was the understanding of the US delegation that these existing statutes were not abrogated by the provisions of the Abolition Convention. Shortly before the United States signed the Convention, a representative of the United States Tariff Commission informed the US negotiator that:   "The import prohibitions and restrictions now in force in the United States are entirely, as was frequently made clear in the course of the debates, of a non-economic nature. They consist of measures for the protection of public health and public morals, for safeguarding plants and animals against disease and extinction, and of measures which are intended to apply to imports and exports the same control as is applied to corresponding commodities in domestic trade. "Our right to maintain these prohibitions and restrictions would in no way be affected by our signing the Convention. We have abundant evidence, both in the debates in plenary sessions and in committees, that the right of any country to maintain such measures of control would not be infringed".

²⁷² Act for the Protection of the Fisheries of Alaska, sec. 1, 69 Cong. 1st sess., ch. 621, p. 752.

²⁷³ 31 Stat. 187-88 (1900)(56th Cong. Sess. 1, ch. 553).

²⁷⁴ International Convention for the Abolition of Import and Export Prohibitions and Restrictions, 97 L.N.T.S. 393 (signed 8 November 1927).

²⁷⁵ The United States mentioned, inter alia, the Trade Agreement Between the United States and Canada, Article XII(2)(b), 199 L.N.T.S. 92 (1940), ("designed to protect" life and health) (signed on 17 November 1938, ratifications exchanged 19 June 1939); Trade Agreement Between the U.S. and the U.K., 200 L.N.T.S. 294 (1940) ("imposed for protection" of life and health) (signed on 17 November 1938, ratifications exchanged 24 November 1939); Commercial Agreement Between the U.S. and Republic of Nicaragua, Article VI(2)(a)(3), 1936 L.N.T.S. 142 ("designed to protect" life) (signed 11 March 1936, entered into force 1 October 1936); Commercial Agreement Between the United States and Switzerland, 1936 L.N.T.S. 232 ("designed to protect" life or health) (signed 9 January 1936, ratifications exchanged 7 May 1936).

²⁷⁶ Provisional Commercial Agreement Between the Commonwealth of Australia and the Belgo-Luxemburg Economic Union, Article VII, 1937 L.N.T.S. 272 (signed 3 October 1936, entered into force 1 January 1937).

²⁷⁷ Commercial Convention Between Estonia and France, Article 6, 1937 L.N.T.S. 43 (signed 16 October 1937, entered into force 1 December 1937).

²⁷⁸ Exchange of Notes Between the Brazilian Government and His Majesty's Government in the United Kingdom Constituting a Temporary Agreement Regarding Commercial Relations Between the Two Countries, 1936 L.N.T.S. 274, 277 (signed 10 August 1936, entered into force 10 August 1936).

²⁷⁹ Article 9(3). Article 9(1) of the Convention stated that: "[e]ach Contracting Government shall take the necessary measures to control and regulate in each of its territories the internal, and the export and export, traffic in ... trophies ... with a view to preventing the import or export of, or any dealing in trophies other than [in accordance with the laws of the territory]". Animals protected under the treaty included "all vertebrates and invertebrates ... their nests, eggs, egg-shells, skins and plumage". This included highly migratory species. Ibid., Article 2(3). Adopted 8 November 1933, entered into force 14 January 1936. Parties included Belgium, Egypt, India, Italy, Portugal, South Africa, Sudan, United Kingdom and United Republic of Tanzania.

²⁸⁰ Article IX ("fauna and flora" included migratory species). Adopted 12 October 1940, entered into force 30 April 1942. Parties included: Argentina, Brazil, Chile, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Mexico, Nicaragua, Panama, Peru, Trinidad and Tobago, the United States, Uruguay, and Venezuela.

²⁸¹ Article 3. Adopted 18 October 1950, entered into force 17 January 1963. Parties included Belgium, Iceland, Italy, Luxembourg, Netherlands, Spain, Sweden, Switzerland, Turkey and Yugoslavia.

²⁸² Article V. Adopted 15 November 1973, entered into force 26 May 1976. Parties, limited to signatories, included Canada, Denmark, Germany, Norway, USSR (current status unknown), USA.

²⁸³ Article VIII. Adopted 7 May 1976, entered into force 10 December 1976. Parties, limited to signatories, include Canada, Japan, USSR (current status unknown), USA.

²⁸⁴ Article 4(2). Adopted 23 November 1989.

²⁸⁵ The United States referred in particular to the Vienna Convention for the Protection of the Ozone Layer and the Montreal Protocol on Substances that Deplete the Ozone Layer; the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal; the London Guidelines for the Exchange of Information on Chemicals in International Trade; Convention on International Trade in Endangered Species of Wild Fauna and Flora; the Framework Convention on Biological Diversity.

²⁸⁶ The United States referred to the Report of the Fifth Meeting of the Open Ended Working Group of the Parties to the Montreal Protocol, paragraph 14, U.N. Doc. UNEP/OzL.Pro/WG.1/5/3 (1990): "[t]he Working Group concluded that there appeared to be no conflict between GATT rules and Article 4 ... and other articles of the Montreal Protocol. The Working Group further concluded that no specific conflict between GATT rules and Article 4 ... could be identified".

²⁸⁷ Adopted 16 September 1987, entered into force 1 January 1989. The United States noted that more than 75 countries were party to the Montreal Protocol.

²⁸⁸ The United States noted that the complainants did not address whether their argument would also apply to all of Article XX, for example Article XX(e) relating to products of prison labour. If not, then it was unclear how other provisions could be distinguished.

²⁸⁹ Inasmuch as the United States had failed to provide any evidence that US domestic legislation had any persuasive value in interpreting the GATT 1994, India, Pakistan and Thailand noted they would not address the US domestic legislation cited as evidence of "contemporary" practice.

²⁹⁰ Panel Report on United States - Restrictions on Imports of Tuna, circulated 16 June 1994, not adopted, DS29/R, paragraph 5.20.

²⁹¹ Ibid., paragraphs 5.17, 5.20 and 5.33 (emphasis added).

²⁹² Ibid., paragraph 5.20.

²⁹³ India, Pakistan and Thailand noted that, while the terms degeneration and extinction, pointed out by the United States, might have served to clarify concerns which could be addressed as relating to life and health", these terms in no way defined the jurisdictional scope of the measures which could be taken.

²⁹⁴ As to the US arguments concerning "contemporaneous" practice and subsequent practice, the arguments made by India, Pakistan and Thailand with respect the Article XX(g) were equally applicable to the US arguments with respect to Article XX(b) (see paragraph 200).

²⁹⁵ 1936 Convention Relative to the Preservation of Fauna and Flora in their Natural State, and 1942 Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere, see paragraph 200.

²⁹⁶ United States - Restrictions on Imports of Tuna, not adopted, DS29/R, circulated 16 June 1994, paragraphs 5.15 and 5.16 (emphasis added).

²⁹⁷ The United States referred to Shaw, International Law, (3d ed. 1991), (quoting Article 38(1) of the Statute of the International Court of Justice).

²⁹⁸ The United States recalled that the Appellate Body Report on United States - Measure Affecting Imports of Woven Wool Shirts and Blouses (adopted 23 May 1997, WT/DS33, p. 23) approved of the principle of "judicial economy" in Panel rulings. In particular, the Appellate Body explained that "[a] panel need only address those claims which must be addressed in order to resolve the dispute".