(i) Policy purpose of the measure

3.211. India, Pakistan and Thailand argued that the policy for which Section 609 was invoked did not fall within the range of policies designed to protect human, animal or plant life or health. By failing to provide newly affected nations with a phase-in period comparable to the period provided to initially affected nations, the United States had required foreign shrimp harvesters to use TEDs even though they might not have had time to acquire the TEDs and become trained in their use and might not be able to use them effectively, or forego exports to the United States. However, the United States itself had recognized that requiring use of TEDs with such little notice "will not result in any benefit to sea turtles in those nations newly covered, because fishermen with no experience in TEDs use are not likely to be able to use them effectively in the near term to protect sea turtles".²⁹⁹ In light of this and similar statements, the United States could not credibly argue that the policy behind the embargo was the protection of sea turtle life and health.

3.212. Moreover, the legislative history of Section 609, pursuant to which the embargo was enacted, indicated that the purpose of the provision was to restrict imports. The bill which ultimately became Section 609 first emerged as a floor amendment to the Foreign Relations Authorization Act, 1990.³⁰⁰ During debate on this bill, the principals sponsors discussed the need to redress the "competitive disadvantage of US shrimp fishermen vis-à-vis foreign fishermen". Further, a concern was expressed that foreign nations would "export a flood of shrimp into our country".³⁰¹ Although this bill did not pass, Section 609 was later included in the 1990 appropriations measure for the Departments of State, Justice, and Commerce.³⁰² In commenting on the provision, one senator explained that the embargo would mean that "... the price of shrimp obviously will go up because the supply will be down, so that Louisiana shrimpers, Texas shrimpers, Florida shrimpers will in effect have some form of compensation in the form of higher prices for their shrimp ...".³⁰³ Further, another senator stated that it was "... patently unfair to say to the US industry that you must abide by these sets of rules and regulations, but other countries do not have to do anything, and, yet we will then give them our market".³⁰⁴ This language, together with the fact that Section 609 did not provide the same phase-in period that US shrimp harvesters had been granted, indicated that the policy pursuant to which the embargo was enacted was protection of the US shrimp industry, not sea turtles. Further, while Section 609 was later codified as a note to the Endangered Species Act, the US legislative branch did not specifically make it an amendment to the Endangered Species Act. It could be inferred from this that the purpose of the provision was something other than protection of endangered species.

3.213. Malaysia noted that in the present case, Section 609 appeared at the very most to be a legislation designed to reduce the mortality rate of turtles and, therefore, might possibly, if at all, fall under the policy to protect animal life.

3.214. The United States argued that the measures under Section 609 involved the protection of animal life or health. Sea turtles were obviously animals. As noted, Section 609(a) called for the negotiation of bilateral and multilateral agreements for the protection and conservation of sea turtles, i.e. to protect the life and health of these animals. Similarly, Section 609(b) was intended to protect and conserve the life and health of sea turtles by requiring that shrimp imported into the United States had not been harvested in a manner that would harm these animals. The United States rejected the argument made by India, Pakistan and Thailand that the United States had enacted Section 609 primarily for protectionist purposes, i.e., to protect its domestic shrimping industry from foreign competition. It considered that such argument was based on isolated excerpts from the legislative history of Section 609 in the US Congress. Given that the United States had negotiated a multilateral agreement with Western Hemisphere nations to require the use of TEDs, and had made extensive efforts to disseminate TEDs technology worldwide, this argument was simply not credible. In fact, Malaysia conceded in this proceeding, albeit grudgingly, that Section 609 was designed to protect sea turtles. Furthermore, an examination of the full legislative history confirmed that the overriding intent of Section 609 was to protect endangered species of sea turtles. Senator Breaux, who introduced Section 609 in the US Senate, described his intentions in doing so as follows:

Senator Breaux�s colleagues echoed his sentiments:

These comments reflected the prevailing view of the United States Congress in enacting Section 609 that the measures taken within the United States to protect endangered sea turtles would not be effective unless other nations with shrimp trawl fisheries that killed sea turtles took comparable action.

3.215. The United States explained that India, Pakistan and Thailand misunderstood the US legal system when claiming that the fact that Section 609 was placed in the United States Code (U.S.C.) as a note to Section 1537 of Title 16 of the U.S.C., instead of as an amendment, indicated that "the purpose of the provision was something other more than protection of endangered species". This, in fact, did not provide an indication of the intent of Congress in enacting the provision. When, as here, a new law was a stand-alone provision that did not amend an existing law, Congress did not specify where it would be placed on the U.S.C. Instead, that decision was made by the Office of Law Revision Counsel (OLRC), an independant office of the House of Representatives that was responsible for compiling the U.S.C. The OLRC was not involved in the legislative process, and, as held by the Supreme Court of the United States, the OLRC's decisions regarding the organization of the U.S.C. did not provide an indication of Congressional intent in enacting a law.³⁰⁸ Accordingly, whether Section 609 was placed in Title 16 as a note, or, for example, was assigned to a new section of Title 16, was a choice made at the discretion of the OLRC, and provided no indication of Congressional intent.

(ii) "Necessary ..."

3.216. Assuming, arguendo, that the embargo was enacted for the purpose of protecting sea turtle life and health, India, Pakistan and Thailand submitted that the embargo was not necessary to accomplish that purpose. As stated in a previous case, "[i]n the ordinary meaning of the term, 'necessary' mean[s] that no alternative exist[s]".³⁰⁹ Another Panel interpreting the term "necessary" in the context of Article XX(b) had stated that "the import restrictions imposed by Thailand could be considered to be "necessary" in terms of Article XX(b) only if there were no alternative measures consistent with the General Agreement, or less inconsistent with it, which Thailand could reasonably be expected to employ to achieve its health policy objectives".³¹⁰ In this case, the United States had not and could not demonstrate that alternative GATT-consistent measures were not available to it at the time that it had promulgated the shrimp embargo. Indeed, Section 609(a) specifically required the US Secretary of State to "initiate negotiations as soon as possible for the development of bilateral or multilateral agreements with other nations for the protection and conservation of such species of sea turtles".³¹¹ This mandate indicated that no such attempts had been made prior to enactment of the legislation which authorized the embargo.

3.217. The embargo was not "necessary" because the complainants already had an adequate programme in place for the protection of sea turtles within their jurisdiction. Inasmuch as the sea turtles in question occurred in waters within the jurisdiction of other nations, the United States could have sought to protect them through international agreements which did not include unilateral import restrictions. Such measures would achieve the US policy goal, while being consistent with the GATT. Pursuant to the CIT's 8 October 1996 Order, the embargo applied to all wild harvested shrimp or shrimp products from non-certified countries, whether or not such shrimp had been harvested in a manner that harmed or could harm sea turtles. In order to become certified, other nations had to adopt conservation policies comparable to US policies.³¹² Thus, the embargo could not be considered "necessary" because it was a measure taken to force other countries to change their policies and practices and could be effective only if such changes occurred.³¹³ Finally, the embargo, as implemented, could not be considered "necessary" when the United States itself had stated that implementing the embargo without providing a sufficient phase-in period for newly affected nations "will not result in any benefit to sea turtles in those nations newly covered, because fishermen with no experience in TEDs use are not likely to be able to use them effectively in the near term to protect sea turtles".³¹⁴ Indeed, prior to enforcing the embargo pursuant to the CIT's 29 December 1996 Order, the United States had gone so far as to state that "[e]ven assuming the willingness of affected nations to comply with Section 609, a May 1, 1996, compliance date will achieve no conservation benefit".³¹⁵

3.218. Malaysia submitted that in its examination of whether inconsistent measures were necessary to achieve the policy objectives of the United States, the Gasoline Panel Report noted that the term "necessary" had been interpreted in the context of Article XX(d) by the Panel in the Section 337 case which had stated that:

The Gasoline Panel also relied on the Cigarettes case, which had followed the same reasoning under Article XX(b)³¹⁷, and found that the aspect of the baseline establishment methods found inconsistent with Article III:4 was not justified under Article XX(b) as "necessary to protect human, animal or plant life or health".³¹⁸

3.219. Applying the principle pronounced by previous panels to the present case, Malaysia submitted that the US import prohibition was not necessary to further the US policy objectives of protecting human, animal or plant life or health for the following reasons. In Tuna II, the Panel noted that the text of Article XX was not explicit as to whether under Article XX(b) measures necessary to protect the life or health of animals could include measures taken so as to force other countries to change their policies within their own jurisdictions and requiring such changes in order to be effective. The Panel held the view that Article XX should be interpreted narrowly and in a way that preserved the basic objectives and principles of GATT.³¹⁹ The Panel concluded that "measures taken so as to force other countries to change their policies, and that were effective only if such changes occurred, could not be considered 'necessary' for the protection of animal life or health in the sense of Article XX(b)".

3.220. Malaysia regarded the import prohibition as an application of force by a foreign nation to change its turtle conservation policy without the slightest consideration for its serious, effective and continuous efforts to ensure the survival of turtles both domestically and internationally. As such the US import prohibition had the effect of forcing Malaysia to change its policy with regard to the protection of turtles over and above the turtle conservation measures currently in place. As Malaysia had stated, TED was not the only effective conservation method. Moreover, the import prohibition being directed at shrimp and not at turtles would not necessarily result in the adoption of TEDs by legislation or administrative action in the countries concerned. Other willing markets were available. Malaysia, while studying the effectiveness of TEDs, had directed its exports to other markets. Similar action would be taken by other affected countries. Thus, the import prohibition could not be deemed necessary for the conservation of sea turtles. In the Tuna I Panel Report Mexico had submitted the import prohibition imposed by the US was not necessary because alternative means consistent with GATT were available to protect dolphin life or health, namely international cooperation between the countries concerned.³²⁰ This alternative means was in fact envisaged in Section 609(a)(1)(2) and (3) which provided that the US Secretary of State may in consultation with the US Secretary of Commerce with respect to the conservation of the five species of sea turtles, inter alia, initiate negotiations for the development of bilateral or multilateral agreements with other nations and all foreign governments and encourage such other agreements to promote such purpose. The United States had concluded the Inter-American Convention for the Protection and Conservation of Sea Turtles on 5 September 1996 with only five governments in the Western Hemisphere. Malaysia therefore submitted that the United States had not shown that it has exhausted all options reasonably available to it to pursue its sea turtle protection objectives through measures consistent with GATT, in particular through the negotiation of international cooperative arrangements on a multilateral basis considering especially that turtles were highly migratory. There was nothing to stop the United States from concluding a similar agreement with Malaysia or any other country instead of relying on the unilateral action of imposing an import prohibition.

3.221. The United States, like Malaysia, was a party to the CITES. This Convention gave recognition to the sovereignty principle whereby each Party was free to protect its own endangered species of plants or animals. This principle was echoed in the following preambular provision, which recognized that "peoples and States are and should be the best protectors of their own fauna and flora". CITES' Preamble also recognized the principle of international cooperation by stating that "international cooperation is essential for the protection of certain species of wild fauna and flora against over-exploitation through international trade". Appendix I to the CITES was a list including all species of sea turtles which were threatened with extinction and which were or could be affected by trade. Malaysia noted that the United States had not entered a reservation with regard to the species of turtles specified for protection in the application of Section 609 and was therefore governed by CITES. The relevant provisions of CITES allowed both international and domestic measures to be taken by any country based on the principle of mutual understanding and cooperation and with due regard to a nation's sovereignty. No nation which was a party to CITES should resort to any measure such as an import prohibition which was inconsistent with GATT.³²¹ Malaysia therefore submitted that other alternative means were clearly available to the United States to protect the life and health of sea turtles under Article XX(b), such as multilateral or bilateral agreements for the conservation of sea turtles with other countries; the import prohibition was therefore not necessary to protect the live and health of sea turtles as such.

3.222. The United States replied that the US measures under Section 609 were "necessary", in two different senses. First, efforts to reduce sea turtle mortality were "necessary" because, as noted, all species of sea turtles were threatened with extinction. Again, each of the complainants had adopted at least some measures to conserve sea turtles, and each agreed that sea turtle conservation was necessary. Second, the measures under Section 609 relating to the use of TEDs were "necessary" because other measures to protect sea turtles were not sufficient to allow sea turtles to recover from the brink of extinction. Even though each complainant was a party to CITES, which prohibited trade in sea turtles, and each complainant stated that it had adopted certain sea turtle conservation measures - such as beach conservation - sea turtle populations exhibited alarming declines in the Southeast Asian and Indian Ocean regions. This result was not surprising since, as noted, accidental drowning in trawl nets accounted for a greater number of sea turtle deaths than all other human-induced causes combined. Without the use of TEDs, other measures to protect sea turtles were insufficient to produce an increase in sea turtle populations because these measures had not been demonstrated to have any significant effect on the number of sea turtles that survived to adulthood and reproduced. Further, in regions where TEDs were used in conjunction with other sea turtle conservation measures, there were signs of encouraging increases in sea turtle populations.

3.223. The United States further submitted that the grounds asserted by India, Malaysia, Pakistan and Thailand to argue that the US turtle conservation measures under Section 609 were not "necessary" within the meaning of Article XX(b) were without merit. The United States disagreed with statements in earlier panel reports, referred to by the complainants, that the word "necessary" should be interpreted to mean that the United States had to demonstrate that "there were no alternative measures consistent with the GATT 1994, or less inconsistent with it, which [the United States] could reasonably be expected to employ to achieve its ... policy objectives". The adoption of this complex, multi-step test, in place of the single word "necessary" actually used in the text of the GATT 1994, was not supported in the text of the GATT 1994 or in its negotiating history. Moreover, the replacement of the actual treaty language in Article XX with a gloss developed by one or more panels was contrary to the teachings of the Appellate Body in the Gasoline case. Addressing in that case Article XX(g) and the differing introductory terms (such as "necessary", "essential", and "relating to") used in the various paragraphs of Article XX, the Appellate Body explained that:

Further, even though the participants in the Gasoline appeal agreed that "relating to" in Article XX(g) could be interpreted as "primarily aimed at", the Appellate Body cautioned that "the phrase 'primarily aimed at' was not itself treaty language and was not designed as a simple litmus test for inclusion or exclusion from Article XX(g)".

3.224. The same principles applied to the complainants' proposed gloss on the meaning of the term "necessary". The proposed "least inconsistent measure" test was not itself treaty language, and could not serve as a "simple litmus test" for measures covered by Article XX(b). Instead, whether a measure was "necessary" under Article XX(b) was to be determined "on a case-by-case basis, by careful scrutiny of the factual and legal context in the given dispute".³²³

3.225. The United States submitted that the test for "necessary" proposed by the complainants was complex. First, a WTO Member maintaining a measure was required to prove a negative by being required to establish that it had no other measure reasonably available to it that was consistent with the GATT 1994: it had to establish the non-existence of other measure. Second, the WTO Member had to demonstrate that, among the measures reasonably available to it, it had employed the measure that entailed the least degree of inconsistency with other provisions of the GATT 1994: the WTO Member had to establish the range of alternatives available and rank them according to "least inconsistency" with the provisions of the GATT 1994. The use of one word, "necessary", was a slender reed indeed on which to hang such an extensive and complex set of obligations. Rather than attempt to impose a reading of the text that no reader could be expected to know, it would be wiser to interpret the language in accordance with its normal meaning.

3.226. This was even more so where there was no discussion of the significance of the term "necessary" in the drafting history of Article XX. No trade agreement prior to the Havana Charter had used the term "necessary" in reference to protecting plant and animal life and health. Article XX itself had not been interpreted by a dispute settlement panel under the GATT until relatively recently, and each panel had modified the interpretation of this provision with each dispute. Where there was no basis in the text of an agreement itself, in the negotiating history, or in the context of the provision for a proposed interpretation of a provision, no panel should attempt to create an interpretation and then assert after the fact that this was the obligation assumed by a WTO Member when it subscribed to the WTO Agreement including GATT 1994. This was particularly true where there was no need for such an interpretation. The complainants' proposed interpretation appeared to be aimed at ensuring that purported health, safety and other measures were not really a form of trade protectionism. That concern was more properly met by addressing the requirement in the chapeau that measures under Article XX were not to be applied in such a manner that they would constitute a disguised restriction on international trade, rather than by reading into a word such as "necessary" a series of complex requirements that were never negotiated or discussed. It was peculiar to propose creating an interpretation with no basis in the text for a term such as "necessary" when in the same article there was explicit language that would serve to guard against the abuse of the measures listed in Article XX by applying them for protectionist purposes. After all, the basic thrust of the GATT was to prevent protectionism, not to intrude on the decision making of the contracting parties when pursuing legitimate policy objectives such as environmental protection.

3.227. The United States argued that, in practice, under the complainants' proposed rule, a WTO Member would not be able to determine whether a measure it was considering would be consistent with its obligations under the GATT 1994 until after the fact. This was because that determination depended on the alternatives that a dispute settlement panel considered to be reasonably available to the WTO Member. This would engage panels in second-guessing domestic legislative or regulatory decision-making based on a factual inquiry beyond the competence of trade panels. For example, a panel would need to decide whether an alternative measure adequately achieved the legitimate policy objectives of the WTO member concerned, which could involve complex technical questions and scientific judgements. The United States noted that, while panels had access to technical experts, the question was not one of having expert advice available, but whether a panel was to substitute its judgement on these issues for that of the government concerned.

3.228. The complainants' proposed interpretation was also too intrusive on the decision-making of each WTO Member. To accept such an interpretation would require dispute settlement panels to dictate the specific measure to be adopted by a WTO Member, since presumably there was only one measure among all the alternatives that was the "least inconsistent" with the GATT 1994. This run counter to the agreed course of practice for dispute settlement panels. Again, it should not be assumed that the contracting parties had agreed to such an intrusive obligation by implication. Such an interpretation should be based on an explicit agreement to these obligations. The complainants not only urged the adoption of a gloss that "necessary" meant the "least GATT-inconsistent measure", but they further expanded the scope of that gloss beyond that found in any adopted or unadopted panel report. In particular, the complainants argued that the "least GATT-inconsistent measure" had to include the negotiation of bilateral or multilateral agreements. No panel had made such a finding.³²⁴ Rather, panels examined whether the country imposing a requirement on an imported product could have imposed a less burdensome requirement.

3.229. The United States observed that, if adopted, the complainants' position would entirely rewrite Article XX(b). Nothing in the text of the GATT 1994 would limit this new "international cooperation" requirement to environmental measures. Instead, Article XX(b) would no longer apply to any measures necessary for the protection of animal life or health, including sanitary measures, unless the importing country first asked all exporting countries to agree to negotiate a multilateral agreement containing similar requirements. As there was no mention of this in the text of Article XX, it was inconceivable that the drafters intended such a sweeping limitation. The complainants' position was also clearly at odds with the Agreement on the Application of Sanitary and Phytosanitary Measures, which in part interpreted Article XX(b). That agreement contained no requirement to seek international negotiation before taking a sanitary or phytosanitary measure. Although the United States strongly disagreed with the complainants' unprecedented proposal to write an "international cooperation" requirement into Article XX(b), in this case the United States did indeed offer to negotiate a multilateral sea turtle conservation agreement with Asian countries, including the four complainants. The complainants, however, exhibited no interest in the United States offer. Thus, the negotiation of a bilateral or multilateral agreement to further sea turtle conservation was not an option reasonably available to the United States.

3.230. The United States rejected the complainants' arguments that their existing turtle conservation measures were sufficient for sea turtle conservation, and thus that a measure such as Section 609, which encouraged the use of TEDs, was not "necessary". The scientific data showed, on the contrary, that sea turtle populations were declining in the Southeast Asian and Indian Ocean, that accidental drowning in shrimp trawl nets was the greatest single cause of human-induced sea turtle mortality, and that the use of TEDs greatly reduced the harm to sea turtles. Moreover, the quotation made by India, Pakistan and Thailand from a brief filed by the United States in domestic litigation concerning the application of Section 609 to nations outside of the Caribbean Basin was out-of-context since the issue in that proceeding was the timing of when Section 609 would be applied to shrimp harvested in nations outside with Wider Caribbean/Western Atlantic region. In this context, the United States had explained to the Court that a delay in the effective date of its ruling to apply Section 609 on a global basis as of 1 May 1996 would allow more time for the governments and shrimp fishermen in foreign nations to become accustomed to TEDs. The United States had not argued, as implied by India, Pakistan and Thailand, that application of Section 609 on a global basis would not promote sea turtle conservation.

3.231. Finally, the four complainants argued that Section 609 was not "necessary" because it would "force" other nations to change their sea turtle conservation policies. Malaysia, and implicitly India, Pakistan and Thailand, based this argument on a finding in the Tuna II report. That finding, however, was totally without foundation in the text of the GATT 1994. And, in fact, the GATT 1994 indicated that trade measures could take effect through their influence on countries. For example, Article XX(e) covered measures relating to the products of prison labour. Since the management of prisons was almost universally within the sphere of governments, Article XX(e) unquestionably was intended to allow trade measures to that could serve to influence the policies and practices of governments.

3.232. India, Pakistan and Thailand argued that the United States confused the necessity of protecting sea turtles from extinction with the necessity of the specific trade measure purportedly chosen for that purpose, i.e. Section 609. While Thailand agreed with the general goal of protecting sea turtles from extinction, it disagreed with the means chosen to this end by the United States, and in particular that Section 609 was necessary to achieve this goal. Contrary to US assertions, the fact that all species of sea turtles were threatened with extinction did not make the US measures necessary. In fact, the US success in negotiating the Inter-American Convention demonstrated that sea turtles could be, and should be, protected through international cooperation rather than unilateral measures. Further, while the United States put forth scientific evidence to demonstrate that it was important to protect juvenile sea turtles, it did not demonstrate that a TEDs requirement applicable to the shrimp fisheries of all nations was necessary to accomplish that goal. The United States did not demonstrate that the incidental taking of sea turtles in shrimp trawl fisheries was a significant problem in Asia, Australia and Oceania or that there could not be other measures of equal or greater importance that could be taken to protect juvenile sea turtles. As noted previously, sea turtle populations in the complainants' waters was stable and slight declines were not related to shrimping. Even where it could be demonstrated that shrimp trawling was a primary cause of sea turtle mortality, there might be other measures that could reduce that mortality at less cost, such as reduced tow-times or time and area closures. The US claim that this Panel should ignore the interpretation of the term "necessary" adopted by other panels was also without merit. Indeed, the United States made virtually the same arguments to the Tuna II Panel, which found that a virtually identical restriction on tuna imports did not meet the necessity test. The only new aspect of the argument related the Gasoline Appellate Body Report. However, the Gasoline report specifically found that the treaty language "relating to" could be interpreted as meaning "primarily aimed at" and nothing in its decision led to the conclusion that the term "necessary" could not be interpreted to mean that there were no alternative measures consistent with the GATT 1994, or less inconsistent with it, as several previous panels had found.

3.233. Malaysia submitted that the United States was not interpreting the term "necessary" in a manner consistent with the Tuna II and the Gasoline panel reports. First, there were other options "consistent or less inconsistent" with the General Agreement that the United States could reasonably consider. Second, Section 609 could not be considered as "necessary" as it forced other countries to change their policies on the conservation of sea turtles and was ultimately effective only if such changes occurred. The United States should only resort to an import prohibition upon the exhaustion of all other reasonable options open to it, including entering into multilateral, regional or bilateral agreements with other countries. In this respect, it was not up to the Panel to decide what was the best option, but merely to conclude whether the United States had acted within the ambit of Article XX in imposing the import prohibition.

3.234. The United States argued that the measures under Section 609 were "necessary" in two different senses. First, efforts to reduce sea turtle mortality were "necessary" because, as noted, sea turtles were threatened with extinction. Second, the US measures under Section 609 relating to the use of TEDs were "necessary" because shrimp trawling without TEDs was the largest source of human-induced sea turtle mortality. Regarding the argument made by India, Pakistan and Thailand that the United States had confused the necessity of protecting sea turtles with the necessity of the specific trade measure chosen for that purpose, the United States responded that, to the contrary, it had addressed both of these matters separately and distinctly (see above paragraph 3.222). The United States noted that the complainants agreed with the general goal of protecting sea turtles from extinction, but disagreed with whether Section 609 was necessary to achieve this goal. Although only the second point was in dispute in this case, there certainly was no "confusion" in the United States discussion. Rather, the United States submitted that it was helpful to the Panel to establish that the complainants agreed with the United States that it was necessary to protect sea turtles from extinction. Indeed, all complainants accepted not only that sea turtles needed to be protected from extinction, but also the principle that import restrictions or prohibitions were needed to protect sea turtles, regardless of whether those sea turtles were outside their "jurisdiction". Under CITES, all complainants had committed to imposing import restrictions on endangered sea turtle and sea turtle products, regardless of where the sea turtles were harvested.

3.235. India, Pakistan and Thailand replied that, while it might be true that TEDs installed in shrimp trawl nets were necessary to protect sea turtle population in US coastal waters, the same could not be said of the complainants. In fact, sources cited by the United States specifically cited egg harvest as the cause of recorded declines of the complainants' sea turtle populations. Moreover, the measures were not "necessary" because they were measures taken to change policies and practices of other Members and could be effective only if such changes occurred. As found by the Tuna II Panel, measures that could be effective only if they were followed by changes in the policies or practices of other Members were not necessary to protect animal life or health. Finally, the measures were not necessary because there were other, GATT consistent or less inconsistent measures that could be taken to achieve the same objective. The United States did not deny this point, but argued that past panels criteria for determining the necessity of the measure should be disregarded by this Panel. India, Pakistan and Thailand were, however, of the view that these panels had correctly interpreted the term "necessity", and such an interpretation was essential to maintain the balance of rights and obligations in WTO, particularly if the Panel were to find that there was no implied jurisdictional limitation in Article XX(b). This interpretation was also consistent with the generally accepted view that the exceptions contained in Article XX had to be construed narrowly, because they were derogations from normal GATT obligations. As to the US argument that under CITES the complainants had accepted that import restrictions or prohibitions were needed to protect sea turtles, India, Pakistan and Thailand replied that their CITES membership demonstrated in fact that they had the sovereign right to determine which measures should be taken to protect the life and health of animals located within their jurisdiction, as well as the right to agree with other nations after engaging in negotiations what those measures would be. The fact that the complainants had agreed to import restrictions in another context did not make the unilateral action taken by the United States "necessary" in this dispute.

3.236. According to Malaysia, the argument that TEDs were necessary because shrimp trawling was the largest source of human-induced sea turtle mortality was not applicable to Malaysia, where the incidental capture of turtles was in fish trawls and not shrimp trawls. Moreover, the United States unduly generalized when stating that the complainants agreed that import restrictions or prohibitions were needed to protect sea turtles, regardless of whether those sea turtles were outside their "jurisdiction". Finally, Section 609 did not apply to flatback and olive ridley turtles. This demonstrated that the United States implicitly recognized the fact that they could not impose restrictions on sea turtles outside their jurisdiction.

To Continue With Chapter 3.237

²⁹⁹ United States Court of International Trade, Earth Island Institute v. Warren Christopher, Memorandum in Support of Defendants' Motion for Modification of 29 December 1995, Order, p. 11.

³⁰⁰ 135 Congressional Record S.1160.

³⁰¹ 135 Congressional Record S. 8373-8376.

³⁰² House Resolution 2991.

³⁰³ 135 Congressional Record S. 12266.

³⁰⁴ Ibid.

³⁰⁵ Congressional Record S8373-4 (20 July 1989).

³⁰⁶ Congressional Record S8375 (20 July 1989).

³⁰⁷ Congressional Record S8375 (20 July 1989).

³⁰⁸ See United States v. Welden, 377 U.S. 95, 98 n.4.

³⁰⁹ Panel Report on United States - Restrictions on Imports of Tuna, not adopted, circulated 16 June 1994, DS29/R, paragraph 5.35.

³¹⁰ Panel Report on Thailand - Restrictions on Importation of and Internal Taxes on Cigarettes, adopted 7 November 1990, BISD 37S/200, paragraph 75. See also Appellate Body Report on United States - Standards for Reformulated and Conventional Gasoline, adopted 20 May 1996, WT/DS2/R.

³¹¹ 16 USC. � 1537 note (a)(1) (emphasis added).

³¹² The complainants noted that Earth Island Institute had challenged the CIT's interpretation of the scope of shrimp subject to the embargo. Earth Island Institute claimed that all shrimp from non-certified countries, including shrimp harvested in aquaculture, was subject to the embargo.

³¹³ Panel Report on United States - Restrictions on Imports of Tuna, not adopted, circulated 16 June 1994, DS29/R, paragraph 5.39.

³¹⁴ United States Court of International Trade, Earth Island Institute v. Warren Christopher, Memorandum in Support of Defendants' Motion for Modification of 29 December 1995, Order, p. 11

³¹⁵ Ibid.

³¹⁶ Panel Report on United States - Section 337 of the Tariff Act of 1930, adopted 7 November 1989, BISD 36S/345, paragraph 5.26.

³¹⁷ Panel Report on Thailand - Restrictions on Importation of and Internal Taxes on Cigarettes, adopted 7 November 1990, BISD 37S/200, paragraph 75.

³¹⁸ Panel Report on United States - Standards for Reformulated and Conventional Gasoline, adopted 20 May 1996, WT/DS2/9, paragraph 6.29.

³¹⁹ Panel Report on United States - Restrictions on Imports of Tuna, not adopted, DS29/R, circulated 16 June 1994, paragraphs 5.38- 39: "[i]f Article XX(b) were to be interpreted to permit contracting parties to deviate from the basic obligations of GATT by taking trade measures to implement policies within their own jurisdiction, including policies to protect living things, the objectives of GATT would be maintained. If however Article XX(b) were interpreted to permit contracting parties to impose trade embargoes so as to force other countries to change their policies within their jurisdiction, including policies to protect living things, and which required such changes to be effective, the objectives of GATT would be seriously impaired".

³²⁰ Panel Report on United States - Restrictions on Imports of Tuna, not adopted, circulated 3 September 1991, BIDS 39S/155, paragraph 5.24.

³²¹ Article XIII and Article XIV of CITES.

³²² Appellate Body Report on United States - Standards for Reformulated and Conventional Gasoline, adopted 20 May 1996, WT/DS2/9, p. 18 (emphasis added).

³²³ Ibid.

³²⁴ The United States considered that Malaysia's argument was somewhat misleading by stating that in the Tuna I case, Mexico had submitted that international cooperation was a less GATT-inconsistent alternative. However, the Tuna I Panel had not adopted Mexico's position on this issue.