(d) Article XX(g)

(i) Policy to conserve exhaustible natural resources

3.237. India, Pakistan and Thailand argued that the language contained in Article XX(g) providing an exception for measures "relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption" was to be interpreted "in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose".³²⁵ A reasonable interpretation of the term "exhaustible" was that it referred to finite resources, such as minerals, rather than biological or renewable resources. Such finite resources were exhaustible because there was a limited supply which could and would be depleted unit for unit as the resources were consumed. If, however, all natural resources were considered to be "exhaustible", the term "exhaustible" would be rendered superfluous. Such a result was inconsistent with general rules of treaty interpretation.³²⁶ In the view of India, Pakistan and Thailand, the conclusion in the Gasoline case that Article XX(g) applied to the measure at issue notwithstanding the fact that clean air was "renewable"³²⁷, was based on misplaced reliance on two prior panel reports. In Salmon/Herring, the meaning of the term "exhaustible" was not at issue; rather, both parties had agreed that salmon and herring were exhaustible natural resources.³²⁸ Nor had this issue been raised in the Tuna II Panel Report; in that dispute, the EC had argued that dolphins were not a "resource" because there was no trade in dolphins.³²⁹

3.238. The fact that the term "exhaustible" was intended to mean finite physical resources, rather than biological resources, was further confirmed by the drafting history of Article XX(g). The exceptions which appeared in Article XX originated during the drafting of the commercial policy chapter of the draft ITO Charter. Throughout the preparatory meetings held for purposes of drafting the ITO Charter, discussion of the exception reflected in Article XX(g) focused on "raw materials", "products" and "minerals".³³⁰ For example, much debate occurred over the language requiring the measure to be made effective in conjunction with restrictions on domestic product or consumption. After noting that "export restrictions should be permitted for the preservation of scarce natural resources even if there is no restriction on domestic consumption", the delegate from Brazil made the following comment:

During discussions at the Second Session in Geneva, the delegate from India repeated a suggestion that had been made by his delegation in London that the words following "natural resources" be deleted. The Indian delegate then explained his suggestion as follows:

3.239. India, Pakistan and Thailand considered that the drafting history of Article XX(g) supported the interpretation that "exhaustible natural resources" was intended to mean finite resources only. Since sea turtles were a renewable, rather than an "exhaustible" natural resource, the United States embargo could not be justified pursuant to Article XX(g).

3.240. Malaysia submitted that, for the purpose of interpreting Article XX(g), the Panel should follow the systemic approach adopted by the Appellate Body in the case Taxes on Alcoholic Beverages premised on Article 31 of the Vienna Convention of the Law of Treaties (VCT) which provided that "a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the term of the treaty in their context and in the light of its object and purpose".³³³ Using this systemic approach, the interpretation to be ascribed to a measure under Article XX(g) could not be ascribed to a measure under Article XX(b) because it would render the systemic approach advocated by the Appellate Body meaningless. Sea turtles being living things, they could only be considered under Article XX(b) whereas Article XX(g) was meant for non living exhaustible natural resources. Malaysia therefore submitted that, given the systemic approach in the interpretation of Articles XX(b) and (g), the United States could not invoke both the exceptions simultaneously, for to do so would be inconsistent with the findings of the Appellate Body.

3.241. The United States submitted that sea turtles were important natural resources. They were an ancient and distinctive part of the world's biological diversity, and served key functions in the ecosystems they inhabited. That sea turtles were important natural resources did not appear to be at issue in this dispute; each of the four complainants stressed that it had adopted at least some measures to conserve sea turtles. Furthermore, sea turtles were exhaustible. This was underscored by the fact that all species of sea turtles faced the danger of extinction. CITES - to which all four complainants were parties - included an Appendix I listing species threatened with extinction. All species of sea turtles had been included in CITES Appendix I since 1975. Other international agreements also recognized the endangered status of sea turtles. That sea turtles were threatened with extinction - and thus nearly exhausted - confirmed that they were certainly exhaustible. This, too, did not appear to be at issue in this dispute.

3.242. The United States further argued that the four complainants' argument that Article XX(g) could not apply to "biological or renewable resources" was completely unsupported by the text of the GATT 1994, was contrary to the findings of prior panels, and unsupported by the drafting history of the GATT 1994. In short, the Panel should roundly reject this unsupportable reading. As to the argument made by India, Pakistan and Thailand, the United States considered that, regardless of whether "all natural resources" were exhaustible, there could be no doubt that sea turtles were exhaustible. Indeed, as endangered species, they were nearly exhausted. Once a species was extinct, it was gone forever, just as oil from a well or ore from a mine. India, Pakistan and Thailand were simply wrong in stating that the term "exhaustible" was superfluous unless one somehow read "natural resources" to exclude biological resources. In the view of the United States, India, Pakistan and Thailand completely mischaracterized the Gasoline Panel Report by stating that it was "based on misplaced reliance on two prior panel reports" when finding that clean air was an "exhaustible natural resource". In fact, the Gasoline panel correctly cited to the Salmon/Herring and Tuna II Panel Reports. Contrary to the complainants' claims, both panels did find that renewable natural resources could be exhaustible under Article XX(g).³³⁴ Moreover, the Gasoline Panel also relied on a plain reading of the text of Article XX(g). With regard to whether clean air was a "natural resource", the Panel explained that "clean air was a resource (it had value) and it was natural". With regard to whether clean air was exhaustible, the Panel explained that "it could be depleted". India, Pakistan and Thailand had no answer to this plain reading of the text of Article XX(g). Finally, India, Pakistan and Thailand�s citation to the drafting history of Article XX(g) was completely unpersuasive. As an initial matter, reliance on this supplementary aid to interpretation in order to context the plain meaning of the text was not warranted when, as here, Article XX(g) was not ambiguous.³³⁵

3.243. Aside from that, India, Pakistan and Thailand merely cited to certain "examples" or "illustrations" from the drafting history of Article XX(g) indicating that measures to be covered under Article XX(g) included those relating to minerals. But India, Pakistan and Thailand simply ignored other drafting history showing that Article XX(g) in fact was also intended to apply to biological resources. In particular, during the negotiation of the ITO Charter, the delegate from Australia questioned whether Article 25 (prohibiting quantitative restrictions) would prevent Australia from limiting exports of merino sheep.³³⁶ The delegate explained that due to dire drought conditions, Australia had lost 20 million merino sheep, and was thus prohibiting exports. The Belgian delegate responded that regardless of the scope of Article 25, Australia�s prohibition was allowed by the exception for exhaustible natural resources.³³⁷ In short, the drafting history in fact refuted the complainants' argument that Article XX(g) was intended to be limited so as to exclude biological resources.

3.244. The United States further argued that Malaysia made a similarly flawed argument when contending that Article XX(g) had to be read to exclude animals because animals were explicitly included in Article XX(b), and Article XX(g) or Article XX(b) would thus be rendered superfluous. Just because in certain cases a single measure could fall under two or more paragraphs of Article XX(g), this in no way rendered meaningless a provision of the GATT 1994. Under the natural reading of Article XX(g) (which was to include animals as "exhaustible natural resources"), Articles XX(b) and XX(g) were not coextensive because they contained different requirements. Article XX(b) applied, for example, only to plants and animals, while Article XX(g) applied to all natural resources; Article XX(g) required that the measure be made effective in conjunction with restrictions on domestic production or consumption, while Article XX(b) did not; and Article XX(g) required that the natural resource be exhaustible, while Article XX(b) contained no such requirement for the plants and animals within its scope. The United States also noted that two of the third parties (the EC and Japan) expressly noted their disagreement with this unsupportable reading advocated by the complainants (see below paragraphs 4.33 and 4.52).

3.245. India, Pakistan and Thailand maintained that the term "exhaustible" should be interpreted as referring to finite, physical resources, such as minerals, which were depleted unit-for-unit as they were consumed. A distinction had to be drawn between resources that were necessarily "exhausted" as they were consumed and resources that were renewable, such as those that were biological. The protection of biological resources was within the scope of Article XX(b). If the term "exhaustible" were extended to include all natural resources, even those that were renewable, then the term "exhaustible" would be rendered superfluous. The United States did not show the Panel how its interpretation of the language of Article XX(g) avoided this result. Moreover, an interpretation of the term exhaustible to include biological resources ignored the structure of Article XX, which provided for a separate exception for measures necessary to protect the life or health of biological organisms (people, animals and plants). Finding that Article XX(g) encompassed biological organisms necessarily meant that the measures had to be scrutinized under two different standards, the "relating to" and the "necessary for" standards, and it was illogical to assume that such a result had been intended by the drafters. It was a fundamental rule of construction that every term or word in a treaty should be given an independent meaning. The US argument that paragraphs (b) and (g) of Article XX were not coextensive and contained different conditions confirmed precisely the point made by the complainants. Indeed, why establishing different legal conditions for the same subject matter? If anything "necessary to" protect the "life" or "health" of sea turtles (or any other biological resource) could be done under Article XX(b), why was it necessary or desirable to create a separate set of conditions for the protection of those organisms under Article XX(g)? The answer could only be that the two provisions were never intended to cover the same subject matter. Therefore, the meaning that ought to be given to the term "exhaustible" was that, as outlined by the complainants, it referred to finite, physical resources, not to renewable resources such as those that were biological. This meaning preserved the separation of the subject matter of Articles XX (b) and (g), while giving concrete, independent meaning to the term that was consistent with the preoccupation of the drafters over the risks of untimely depletion of exhaustible mineral resources through unfettered exploitation and exportation.

3.246. The findings of the Gasoline Panel were not on point because the resource at issue in that case was not biological.³³⁸ In addition, the Panel's reliance for its conclusion that renewable resources were within the scope of Article XX(g) on Herring/Salmon and the Tuna II Panel Reports was misplaced. In Salmon/Herring, there had been no dispute between the parties over whether the resource at issue was renewable and therefore not "exhaustible" and thus there was no decision by the Panel on this issue. In the Tuna II dispute, the EC disagreed with the United States' position that dolphins were an exhaustible natural resources based on an argument that dolphins were not commodities and therefore were not "resources".³³⁹ Once again, the Panel did not have the opportunity to consider the question of whether a renewable resource qualified as an "exhaustible" resource. Finally, there was no evidence in the text of the Gasoline Panel Report that it considered the drafting history cited by India, Pakistan and Thailand. Therefore, there was ample basis for revisiting this issue.

3.247. Malaysia did not deny that sea turtles were an exhaustible natural resource, but contended that Article XX(g) was meant only for non living exhaustible natural resources whilst turtles, being living things, could only be considered under Article XX(b). Such an approach logically required that the interpretation to be ascribed to a measure under Article XX(g) could not be ascribed to a measure under Article XX(b) because it would make meaningless the systemic approach advocated by the Appellate Body in the Gasoline case.³⁴⁰ Malaysia noted that previous GATT Panel Reports had held that fish (living) was an exhaustible natural resource.³⁴¹ However, these cases had been adjudicated before the entry into force of the WTO. The approach of the Appellate Body in the Gasoline case was to be preferred. Malaysia also noted that the United States misread the submissions presented by the EC and Japan on this point. In fact, the EC was merely of the view that sea turtles might be regarded as an exhaustible natural resource, whilst Japan merely did not challenge the US view that sea turtles were an "exhaustible natural resource" within the meaning of Article XX(g).

3.248. The United States noted that the complainants did not dispute that sea turtles were "exhaustible natural resources" as that term was normally used. Indeed, this point was beyond argument since sea turtles were listed in Appendix I of CITES as "species threatened with extinction which may be affected by trade." Each complainant was party to CITES. However, despite the plain meaning of the text, the complainants argued that "exhaustible natural resources" under Article XX(g) had to be limited to finite physical resources, such as minerals, which were depleted unit for unit. The United States urged the Panel to reject this interpretation which would violate a fundamental rule of treaty interpretation whereby the terms of a treaty should be interpreted in accordance with the "ordinary meaning to be given to the terms in their context and in light of its object and purpose". Nothing in the text or context limited Article XX(g) to measures involving the conservation of minerals. Contrary to what was claimed by the complainants, the inclusion of non-mineral resources in the scope of Article XX(g) in no way made the term "exhaustible" superfluous. Rather, it instructed the Panel to examine whether the natural resource subject to the conservation measure was "exhaustible" based on the facts of the particular case. Some natural resources, such as solar power, might not be exhaustible, Further, on the facts of this case, it was beyond dispute that sea turtles were exhaustible. Indeed, some species of sea turtles were on the brink of extinction. The analysis suggested by the United States had been followed in the Gasoline case, where the Panel had found that clean air was an exhaustible natural resource under Article XX(g). Contrary to the complainants' theory for limiting Article XX(g), clean air was not depleted unit-for-unit like a mineral resource. The new theory proposed by the complainants for limiting Article XX(g) to non-biological resources was, like the prior one, without any basis in the text of the Agreement.

3.249. The United States further argued that the ordinary meaning of the text of Article XX was that both paragraphs (b) and (g) covered biological organisms. This reading did not, as implied by the complainants, make Article XX(b) superfluous. Rather, although there was some overlap, the two provisions had a number of different requirements, and were not coextensive. For example, Article XX(g) required that the measure be made effective in conjunction with restrictions on domestic production or consumption, Article XX(b) did not; Article XX(g) required that the natural resource be exhaustible, Article XX(b) did not; and Article XX(g) applied to "conservation", while Article XX(b) applied to "protection of life and health". The complainants did not and could not point to any reason for departing from the ordinary meaning in order to avoid overlap between two Article XX provisions. Indeed, Article XX included other examples of overlapping provisions. For example, Article XX(c) applied to "gold and silver", and overlapped with Article XX(g), which applied to exhaustible natural resources. Should then gold and silver be excluded from the scope of Article XX(g)?

(ii) "Related to ..."

3.250. Recalling the arguments made in relation with Article XX(b), India, Pakistan and Thailand argued that, while the general purpose of Section 609 might have been to benefit sea turtles, the United States could not credibly contend that the objective of the embargo was to protect the lives of sea turtles. By providing only four months notice prior to implementation of the embargo against newly affected nations, the United States had required these newly affected nations to implement regulatory programs requiring 100 per cent TEDs use. This was done even though the foreign shrimp harvesters might not have had time to acquire TEDs and receive instruction on their use, and thus might not have been able to use them effectively. 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".³⁴² Indeed, 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".³⁴³ In light of these and similar statements, the United States could not credibly argue that the policy behind the embargo was intended to conserve sea turtles. Moreover, as had been argued under Article XX(b), the legislative history of Section 609, pursuant to which the embargo was enacted, indicated that the purpose of the provision was to restrict imports. Furthermore, Section 609 was codified as a note and not as 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.

3.251. India, Pakistan and Thailand further argued that the analysis made in the Tuna II Panel Report applied to this case. In Tuna II, the Panel had noted that the embargo at issue prohibited imports from a country of any tuna, whether or not the particular tuna was harvested in a way that harmed or could harm dolphins, as long as the country's tuna harvesting practices and policies were not comparable to those of the United States. The Panel had noted that the primary and intermediary tuna embargoes at issue were "taken so as to force other countries to change their policies with respect to persons and things within their own jurisdiction" and could achieve the desired effect only if followed by changes in policies and practices in exporting countries.³⁴⁴ That is, the embargo could not conserve dolphins by itself; a conservation purpose could be achieved only if the foreign governments and foreign fishermen changed their policies and practices. The Panel had 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 primarily aimed at", and therefore did not "relate to", conservation of an exhaustible natural resource.³⁴⁵ India, Pakistan and Thailand submitted that the shrimp embargo at issue in this case applied to any wild shrimp and shrimp products of nations that had not been certified as having a regulatory programme comparable to that of the United States, whether or not the shrimp was harvested in a way that harmed or could harm sea turtles. Further, the shrimp embargo was not a measure "relating to" the conservation of sea turtles because it was effective only if it forced other nations to change their policies and practices.

3.252. India, Pakistan and Thailand were of the view that, in order to be considered "related to" the conservation of sea turtles, the embargo had to be "primarily aimed at" the conservation of sea turtles.³⁴⁶ In light of statements made by the United States to the Court of International Trade that the immediate implementation of the embargo against newly affected nations "would not result in any benefit to sea turtles", the embargo could not be said to be primarily aimed at the conservation of sea turtles. Rather, based on the litigation which occurred in the United States and the statements made by the United States Government during its defense, the conservation goal cited as justification for implementation of the embargo appeared to be incidental to the goals of implementing judicial interpretation of United States law, protecting the American shrimp industry, and of placating the demands of US environmental interest groups.

3.253. The United States argued that Section 609 as a whole clearly "relate[d] to" the conservation of sea turtles. Section 609(a) called for the negotiation of bilateral and multilateral agreements for the protection and conservation of sea turtles. Section 609(b) was intended to conserve and protect sea turtles by requiring that shrimp imported into the United States had not been harvested in a manner that would harm sea turtles. Shrimp trawl nets caused the greatest number of human-induced sea turtle deaths, accounting for more sea turtle deaths than all other human activities combined, and TEDs were highly effective in preventing such mortality. Thus, by calling for international agreements to protect and conserve sea turtles, and by requiring that shrimp imported into the United States had not been harvested in a manner that endangered sea turtles, Section 609 related to the conservation of sea turtles. The United States submitted that, in applying the "relating to" criterion of Article XX(g), the Appellate Body in the Gasoline case noted that the measure met this criterion because it had a "substantial relationship" to the conservation-related requirements of the measure, and was not "merely incidental or inadvertently aimed" at conservation.³⁴⁷ The Appellate Body also accepted the participants' view that "relating to" could be interpreted as "primarily aimed at", although the Appellate Body also cautioned that "primarily aimed at" was "not itself treaty language" and was "not designed as a simple litmus test".³⁴⁸ In any event, regardless of whether "relating to" was interpreted as "primarily aimed at" or as having a "substantial relationship", the United States measures met the "relating to" criterion.

3.254. India, Pakistan and Thailand maintained that the US measure did not "relate to" the conservation of exhaustible natural resources. Several panels found that the phrase "relate to" meant "primarily aimed at".³⁴⁹ Further, although Appellate Body had noted in the Gasoline case that this language was not treaty language, it applied the same test in its analysis.³⁵⁰ The United States argued that Section 609 as a whole clearly related to the conservation of sea turtles. However, Section 609 prohibited shrimp imports from non-certified countries whether or not the shrimp was caught with technologies that the United States considered to be "turtle-safe" (i.e. with TEDs). Moreover, while the evidence presented by the United States demonstrated that shrimp trawl nets caused the greatest number of turtle deaths from anthropogenic sources in US waters, the same was not true of sea turtle populations located outside the United States and specifically those located in the complainants' waters, Australia and other parts of Asia. Other forms of fishing and egg harvesting appeared to be the most significant anthropogenic threats to sea turtles in those areas of the world. By requiring the Members to expend significant sums on the deployment of TEDs in shrimp fisheries as a condition of access to the US market, the United States was diverting scarce resources from conservation measures that would in fact appear to be more effective in conserving sea turtles. India, Pakistan and Thailand stressed that, for the reasons developed in paragraph 3.251, the analysis made in the Tuna II Panel Report applied to this case.

3.255. India, Pakistan and Thailand further noted that the Tuna II Panel Report found that a measure which could not achieve its conservation purpose without action being taken by other countries to modify their environmental policies bore no "substantial relationship" to the conservation of the natural resource. In this case, Section 609 did not "relate" to the conservation of sea turtles because no "substantial relationship" had been established between shrimp trawling and sea turtle mortality in the complainants' waters, not had it been shown that the installation of TEDs was, standing alone, an efficient means of increasing sea turtle populations. Moreover, this case was different from the Gasoline case where there was a direct connection between the baseline requirements and the conservation of clean air in the United States. In that case, the adherence to the baseline requirements would have the effect to produce clean air; thus, there was a substantial relationship between the measure in question and a policy of conservation. In this case, however, the shrimp embargo could not, by itself, have any direct effect on sea turtle conservation; preventing the importation of shrimp could not, by itself, increase the number of sea turtles in the world. Sea turtle conservation was only achieved if other nations implemented a change in their environmental policies and that change affected sea turtle mortality. An embargo on imports of steel or machinery, or indeed, all goods from affected nations, which was tied to a condition that foreign nations took steps to protect their sea turtle populations, would have the same effect on sea turtle populations that the measure at issue had.

3.256. In addition, India recalled that, in the Gasoline case, the Appellate Body noted that the baseline establishment rules at issue were designed to permit scrutiny and monitoring of the level of compliance and that without baselines of some kind, such scrutiny would not be possible. Without a baseline, the Gasoline Rule's objective of stabilizing and preventing further deterioration of the level of air pollution would be substantially frustrated.³⁵¹ The goals of Section 609, however, would not be substantially frustrated without the embargo. Indeed, as the United States itself noted:

While the United States had negotiated one regional agreement, India understood that this agreement was not yet in force. Moreover, the same effects discussed above could ripple into other US efforts to protect sea turtles. Thus, it could not be said that the US goal would be substantially frustrated without the embargo.

3.257. Recalling the Appellate Body findings in the Gasoline case³⁵³, Malaysia argued that Section 609 was not "primarily aimed at" the conservation of sea turtles. "Primarily aimed at" implied a substantial relationship between the measures under Section 609(b) and the conservation of sea turtles; it was up to the United States to demonstrate the existence of this substantial relationship, and to prove that the measure was not incidentally or inadvertently aimed at conservation. The United States failed to show such requirements. Malaysia was of the view that there was no such substantial relationship in this case, because, unlike the baseline establishment rules, which represented the benchmark for determining the level of compliance of importers and blenders with the non-degradation requirements, the use of TEDs was not the only method in preventing turtle mortality. This fact was recognized in the 1982 UN Convention on the Law of the Sea (UNCLOS), and the 1995 Agreement for the Implementation of the Provisions of UNCLOS Relating to the Conservation and Management of Straddling Stocks and Highly Migratory Fish Stocks. These agreements made reference to the use of selective, environmentally safe, cost-effective fishing gear but did not make specific mention to the use of TEDs. Furthermore, Malaysia had repeatedly shown that shrimp trawl nets were not the greatest cause of human-induced sea turtle deaths in Malaysia. Hence, there was no substantial relationship between the measures under Section 609 and the conservation of sea turtles. Malaysia recognised that Section 609(b) provided for the imposition of an import prohibition on the importation of shrimp or shrimp products harvested with commercial fishing technology which might adversely affect the conservation and protection of five species of sea turtles. However, the US Congressional Records indicated that the intention behind Section 609 was not primarily aimed at the conservation of sea turtles as the use of TEDs was not the most effective method or the best solution for the conservation of sea turtles. Thus the measures at issue could not come within the ambit of Article XX(g).

3.258. The United States maintained that Section 609 as a whole clearly "relate[d] to" the conservation of sea turtles. As the Appellate Body explained in the Gasoline case, this criterion was met where there was a "substantial relationship" between the measure and the conservation of an exhaustible natural resource, and where the measure was not "merely incidentally or inadvertently aimed" at conservation.³⁵⁴ In this case, the United States had shown a substantial relationship between its measures under Section 609(b) and the conservation of sea turtles. Shrimp trawl nets were the greatest cause of human-induced sea turtle deaths, accounting for more sea turtle deaths than all other human activities combined. TEDs were highly effective in preventing such mortality. By requiring that US imports of shrimp found in regions inhabited by sea turtles were harvested with TED-equipped trawl nets, or by other gear that did not harm sea turtles, the United States was ensuring that its importation of shrimp did not further endanger sea turtles. The relationship between the measures and the goal was clear, direct and substantial. By requiring that shrimp imported into the United States be harvested in a manner not harmful to sea turtles, the US measures were an important step in promoting sea turtle conservation.

3.259. The United States further argued that the argument made by the complainants that human activities other than shrimp trawling were a greater cause of sea turtle mortality in their waters missed the point. The US measures "relate[d] to" sea turtle conservation regardless of whether other types of conservation measures would also contribute to the protection of sea turtles. Article XX(g) only required that a measure "related to" conservation of an exhaustible natural resource, but did not require that a measure address each and every threat to such resource. The United States questioned whether the complainants would be any more satisfied if the US measures were extended to apply to fish, as well as shrimp, harvested in a manner harmful to sea turtles. Second, the reference made by India, Pakistan and Thailand to Tuna II that a measure could not be "related to" conservation if, to be effective, a foreign government had to change its policies was not supported by the text of the Agreement. Such a restrictive interpretation was moreover inconsistent with the reasoning of the Appellate Body in the Gasoline case. Nothing in the text of the GATT indicated that the issue of whether a measure was "related to" conservation depended on whether the measure entailed policy changes by governments, exporters or producers. In essence, the three complainants raised an issue regarding the means by which the measure met the goal of conserving an exhaustible natural resource. However, the GATT addressed such issues in the chapeau, and not in the text of Article XX(g). In particular, the chapeau required that measures should not be applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination.

To Continue With Chapter 3.260

³²⁵ Article 31 of the Vienna Convention on the Law of Treaties.

³²⁶ Appellate Body Report on United States - Standards for Reformulated and Conventional Gasoline, adopted 20 May 1996, WT/DS2/9, p. 23 ("One of the corollaries of the "general rule of interpretation" in the Vienna Convention is that interpretation must give meaning and effect to all the terms of a treaty").

³²⁷ Panel Report on United States - Standards for Reformulated and Conventional Gasoline, adopted 20 May 1996, WT/DS2/9, paragraph 6.37.

³²⁸ Panel Report on Canada - Measures Affecting Exports of Unprocessed Herring and Salmon, adopted 22 March 1988, BISD 35S/98, paragraph 4.4.

³²⁹ Panel Report on United States - Restrictions on Imports of Tuna, not adopted, DS29/R, circulated 16 June 1994, paragraph 3.52.

³³⁰ E/PC/T/C.II/50, p. 4-5; E/PC/T/C.II/QR/PV/5, p. 79; E/PC/T/A/PV/25, p. 30.

³³¹ E/PC/T/C.II/QR/PV/5, p. 79.

³³² E/PC/T/A/PV/25, p. 30.

³³³ Appellate Body Report on Japan - Taxes on Alcoholic Beverages, adopted 8 November 1996, WT/DS8/11, WT/DS10/11, WT/DS11/8, p. 10.

³³⁴ The United States referred to the Panel Report on Canada - Measures Affecting Exports of Unprocessed Herring and Salmon, adopted 22 March 1988, BISD 35S/98, paragraph 4.4 ("[t]he Panel agreed with the parties to the dispute that salmon and herring stocks are 'exhaustible natural resources' ... within the meaning of Article XX(g)"); Panel Report on United States - Restrictions on Imports of Tuna, not adopted, DS29/R, circulated 16 June 1994, paragraph 5.13 ("[t]he Panel noted that the United States maintained that dolphins were an exhaustible natural resource. The EEC disagreed. The Panel, noting that dolphin stocks could potentially be exhausted, ... accepted that a policy to conserve dolphins was a policy to conserve an exhaustible natural resource".)

³³⁵ Vienna Convention, Article 32.

³³⁶ E/PC/T/A/SR/40(1) (15 August 1947) and E/PC/T/A/PV/40(1) (15 August 1947).

³³⁷ The United States noted that Article, 37(j) was the precursor of GATT Article XX(g).

³³⁸ India, Pakistan and Thailand noted that the finding of the Panel that clean air was an "exhaustible natural resource" was not appealed and therefore not addressed by the Appellate Body. See Appellate Body Report on United States - Standards for Reformulated and Conventional Gasoline, adopted 20 May 1996, WT/DS2/9, p. 10.

³³⁹ Panel Report on United States - Restrictions on Imports of Tuna, not adopted, DS29/R, circulated 16 June 1994, paragraph 3.52 ("The EEC replied that, although the United States and the EEC both agreed that dolphins were in need of conservation, this did not make them into an exhaustible natural resource. Since CITES ensured that there was no trade in dolphin species, one could question whether dolphins were resources in any economic sense of the term".)

³⁴⁰ Appellate Body Report on United States - Standards for Reformulated and Conventional Gasoline, adopted 20 May 1996, WT/DS2/9. Malaysia also referred to the Appellate Body Report on Japan - Taxes on Alcoholic Beverages, adopted 8 November 1996, WT/DS8/11, WT/DS10/11, WT/DS11/8.

³⁴¹ Panel Report on Canada - Measures Affecting Exports of Unprocessed Herring and Salmon, adopted 22 March 1988, BISD 35S/98; Panel Report on United States - Restrictions on Imports of Tuna, not adopted, circulated 3 September 1991, BISD 39S/155; Panel Report on United States - Restrictions on Imports of Tuna, not adopted, circulated 16 June 1994, DS29/R.

³⁴² 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.

³⁴³ Ibid.

³⁴⁴ Panel Report on United States - Restrictions on Imports of Tuna, not adopted, DS29/R, circulated 16 June 1994, paragraphs 5.23 and 5.24.

³⁴⁵ Ibid., paragraph 5.27.

³⁴⁶ Ibid., paragraph 5.22 (citing the Panel Report on Canada - Measures Affecting Exports of Unprocessed Herring and Salmon, adopted 22 March 1988, BISD 35S/98, paragraph 4.6).

³⁴⁷ Appellate Body Report on United States - Standards for Reformulated and Conventional Gasoline, adopted 20 May 1996, WT/DS2/9, p. 18.

³⁴⁸ Ibid., p. 17.

³⁴⁹ Panel Report on Canada - Measures Affecting Exports of Unprocessed Herring and Salmon, adopted 22 March 1988, BISD 35S/98, paragraph 4.6; Panel Report on United States - Restrictions on Imports of Tuna, not adopted, DS29/R, circulated 16 June 1994, paragraph 5.21.

³⁵⁰ Appellate Body Report on United States - Standards for Reformulated and Conventional Gasoline, adopted 20 May 1996, WT/DS2/9, p. 18-19.

³⁵¹ Ibid., p. 19.

³⁵² 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.

³⁵³ Appellate Body Report on United States - Standards for Reformulated and Conventional Gasoline, adopted 20 May 1996, WT/DS2/9, p.18-19.

³⁵⁴ Ibid., p. 20.