(iii) "In conjunction with ..."

3.260. India, Pakistan and Thailand submitted that the United States had not demonstrated that the measure at issue was made effective in connection with restrictions on domestic production or consumption. As noted by the Appellate Body in the Gasoline case, this prong referred "to governmental measures being promulgated or brought into effect together with restrictions on domestic production or consumption of natural resources". Specifically, the Appellate Body stated that the language was a "requirement that the measures concerned impose restrictions, not just in respect of [the imported product] but also in respect to [the domestic product]". Thus, the Appellate Body had concluded that the clause was a requirement of even-handedness.³⁵⁵ However, for India, Pakistan and Thailand, restrictions imposed on domestic and foreign shrimp trawlers had not been imposed even-handedly. While domestic shrimp trawlers had been given a ten-year phase-in period before restrictions were placed on their access to the US market, the embargo had been imposed on the newly affected nations with only four months notice. The manner in which the embargo had been implemented thus provided US shrimp harvesters with a competitive advantage over foreign harvesters. While the United States required both domestic and foreign harvesters to use TEDs, these measures were not "promulgated or brought into effect together".

3.261. The United States argued that Section 609 was "made effective in conjunction with restrictions on domestic production or consumption". The Appellate Body interpreted this criterion to mean that the measures concerned imposed restrictions not just on the imported product but also with respect to the comparable domestic product.³⁵⁶ This test was met here. The United States required its shrimp trawl vessels that operated where there was a likelihood of intercepting sea turtles to use TEDs at all times, and Section 609 applied comparable standards to imported shrimp. The Appellate Body also stated that the "made effective in conjunction with" requirement was a requirement of "even-handedness", although there was no textual basis for identical treatment of domestic and imported products.³⁵⁷ Again, Section 609 met the test. The statute allowed any nation to be certified - and thus to avoid any restriction on shrimp exports to the United States - if it met criteria for sea turtle safety in the course of shrimp harvesting that were comparable to criteria applicable in the United States. For those nations whose shrimp trawl vessels operated in areas where there was a likelihood of intercepting sea turtles, Section 609 allowed for certification if such nations adopted TEDs requirements comparable to those in effect in the United States.

3.262. The United States considered that the argument made by India, Pakistan and Thailand was based on a misunderstanding of both the relevant facts and of the proper application of Article XX(g). First, United States shrimpers had not been given a "10-year" period in which to comply with TEDs regulations. While it was true that approximately 10 years had elapsed between the time that the United States Government had first begun seeking ways to reduce sea turtle mortality in shrimp trawl nets in 1978 and the time that the first regulations had been promulgated requiring the use of TEDs in 1987, this time could hardly be considered a "grace period" for US shrimpers during which foreign exporters of shrimp to the United States had been somehow disadvantaged. Indeed, to the extent that the US TEDs requirements could be seen as imposing any competitive disadvantage, that disadvantage had been borne by US shrimpers for several years, not those from the complainants. As noted, the 1987 TEDs regulations went into full effect in 1990. Since then, TEDs requirements in the United States had become ever stricter. By contrast, Section 609 was applying to imports of shrimp from the complainants only since 1 May 1996. By the mid-1990's, moreover, the design of TEDs had become extraordinarily advanced in terms of turtle protection (97 per cent effective) and shrimp retention (virtually no shrimp lost). Due to the considerable efforts of the United States and other governments, TED technology was also inexpensive and readily available at that time. Thus, by the time that Section 609 became applicable to the complainants, they were able to reap the benefits of the research and development that the United States had been undertaking on TED technology for many years.

3.263. Secondly, the United States argued that India, Pakistan and Thailand were correct in citing to the statement in the Gasoline Appellate Body report that the "in conjunction with" clause of Article XX(g) generally required "even-handedness" in the imposition of restrictions. But the complainants had left out the Appellate Body's admonition that "[t]here is, of course, no textual basis [in Article XX(g)] for requiring identical treatment of domestic and imported products". In any event, none of the complainants had experienced anything less than even-handed treatment as a consequence of the application of Section 609 to their shrimp imports. Section 609 sought to apply the comparable standards of turtle protection to imported shrimp as to domestic shrimp. To the extent that there was any difference in those standards, US shrimpers were subject to stricter standards than shrimpers from other nations, and had been subject to those standards for much longer. The United States recognized that the period between 29 December 1995 (when the US Court of International Trade ruled that Section 609 applies on a worldwide basis) and 1 May 1996 (when that ruling took effect) was five months. The complainants were correct that the US Administration unsuccessfully sought a one-year delay in the effective date of that ruling. At the same time, the United States undertook considerable efforts to assist the complainants and other nations newly affected by the ruling toward the prompt adoption of TEDs programmes. Thailand, with one of the world�s largest shrimp fleets, had been able to adopt a comprehensive TEDs programme quickly.

3.264. India, Pakistan and Thailand maintained that the embargo, or for that matter, Section 609, had neither been promulgated with nor brought into effect with restrictions on domestic production or consumption. As discussed above, restrictions had first been placed on domestic production, and then, several years later, on the initially affected-nations, and finally, several years later and with only four months notice, on the newly-affected nations. Thus, while US laws and regulations now required TEDs use by both initially-affected nations and newly-affected nations, they had not been promulgated or brought into effect with regulations on US domestic consumption. Moreover, the US measures did not meet the "even-handedness" requirement established by the Appellate Body for purposes of interpreting the "made effective with" requirement of Article XX(g). One reason for this was the disparity in time provided by the United States for US shrimpers, shrimpers from initially-affected nations and shrimpers from newly-affected nations to comply with the TEDs requirement. US shrimpers had been given ten years (or, at least seven if the time during which the US voluntary TEDs programme was in effect excluded) to implement a TEDs requirement. The initially-affected nations had been permitted several years to establish and implement TEDs requirements. However, India, Pakistan and Thailand and the other newly-affected nations had been required to have TEDs requirements in place within four months, or lost access to the US market.

3.265. India, Pakistan and Thailand explained they were not suggesting that there needed to be identical treatment of domestic and imported products. However, the difference in time allowed to phase-in the TEDs requirement clearly disadvantaged the newly-affected nations in very substantial terms. As the United States itself had recognized in statements before the Court of International Trade, four months was not long enough to change domestic regulations, outfit an entire fleet with TEDs and train shrimpers in TEDs use so that such use would be both effective and minimize loss of catch. Advances in TEDs design were hardly sufficient to make up for the severe disadvantages imposed on the newly affected nations by the very short phase-in of the embargo. The haste with which Thailand had been forced to adopt a universal TEDs requirement led to considerable additional cost, waste, uncertainty and disruption. Thailand's current and continuing problem with loss of catch highlighted the problems caused by implementing a TEDs requirement over such a short period of time. The US claim that such disparate treatment did not violate the even-handedness requirement because of advances in TEDs technology was belied by statements made by the United States in the course of US domestic litigation, and by the actual experience of TEDs use in both the United States and Thailand, which showed considerable difficulty in using TEDs effectively without substantial loss of catch.

3.266. Malaysia submitted that the United States had not satisfied the requirement of "even-handedness" spelled out by the Appellate Body Report.³⁵⁸ The requirement that the measure concerned imposed restrictions on both imported and domestic gasoline was correct because if such restrictions were not equally imposed then the objective of the Clean Air Act could not have been achieved. However, in the case at hand, exports of shrimp to the United States from countries which did not use TEDs would not result in the depletion or even extinction of sea turtle populations in the United States. Section 609 allowed any nation to be certified if it met the criteria for sea turtle safety in the course of shrimp harvesting that were comparable to criteria applicable to the United States. It was Malaysia's view that the criteria for certification was subjective and arbitrary as the United States was ultimately to decide whether a nation�s scientific study was credible or not, and would evaluate any information that a nation submitted in support of claims that sea turtles were not present in shrimping grounds or that shrimping operations did not harm sea turtles. Furthermore, countries were subject to yearly review, which created uncertainty and was disruptive to trade.

3.267. The United States argued that the Appellate Body interpreted the criterion "made effective in conjunction with restrictions on domestic production or consumption" to mean that the measures concerned imposed restrictions not just on the imported product but also with respect to the comparable domestic product.³⁵⁹ The Appellate Body also stated that this requirement was one of "even-handedness", and that there was no textual basis for identical treatment of domestic and imported products.³⁶⁰ Section 609 met these tests. The United States required its shrimp trawl vessels that operated where there was a likelihood of intercepting sea turtles to use TEDs at all times. Section 609 applied comparable standards to imported shrimp. The statute allowed any nation to be certified - and thus to avoid any restriction on shrimp exports to the United States - if it met criteria for sea turtle safety in the course of shrimp harvesting that were comparable to criteria applicable in the United States. In particular, for those nations whose shrimp trawl vessels operated in areas where there was a likelihood of intercepting sea turtles, Section 609 allowed for certification if such nations adopted TEDs requirements comparable to those in effect in the United States. In short, the US measures were even-handed as between domestic shrimp production and the shrimp production of the complainants. Complainants' argument that the measures at issue were not made effective "in conjunction with" US domestic TEDs requirements because the United States had adopted the domestic requirements first would, if adopted, be harmful to environmental goals and the world trading system alike. If this suggestion were to become the rule, any country adopting a domestic environmental measure would have little choice but to simultaneously impose the measure internationally, even if uncertain of the need to do so. Otherwise, the country would be forever barred from adopting a measure falling within the scope of Article XX. Nothing in the GATT led to this absurd result.

(e) Chapeau of Article XX

3.268. India, Pakistan and Thailand submitted that, under the chapeau of Article XX, the United States bore the burden of establishing that the embargo had not been applied in a manner which had resulted in arbitrary and unjustifiable discrimination between Members and was not a disguised restriction on international trade.³⁶¹ India, Pakistan and Thailand were of the view that the United States would not be able to establish these requirements. While, as currently written, the embargo applied equally to all Members, a review of the history of the import restrictions established that the newly affected nations, including India, Pakistan and Thailand, had been given substantially less notice than other countries before being forced to comply with TEDs use. While the initially affected nations had been given three years to phase in the requirement of 100 per cent TEDs use, during which period they were permitted to continue exporting shrimp to the United States regardless of the method of harvest, the newly affected nations had been given only four months notice before being subject to the embargo following the CIT's 29 December 1996 Order. Moreover, the relevant US authorities were fully aware that four months was an inadequate period of time in which to outfit the newly affected nations' fleets with TEDs or to train shrimp fishermen to use the equipment properly. Thailand, for instance, which had expended significant time and resources in the installation and implementation of its own Thai Turtle Free Devices, could not be certified by the 1 May 1996 deadline and therefore was subject to the embargo, while many of the initially affected nations were not. Thus, the embargo had been applied in a manner that resulted in arbitrary or unjustified discrimination among nations and was a disguised restriction on trade.

3.269. India, Pakistan and Thailand further argued that, while the United States also required 100 per cent TEDs use by US shrimp trawlers in the Atlantic Area and Gulf Area, this requirement had been gradually implemented over a period of approximately 10 years. The United States thus had not required its own shrimp harvesters to use TEDs within a period of just four months. A similar situation had been explored by the Appellate Body in the Gasoline dispute. In finding that the Gasoline Rule at issue did not meet the requirements of the chapeau of Article XX, the Appellate Body stated as follows:

Consistent with this line of reasoning, a regulatory scheme which had been applied so as to suddenly prohibit importation of shrimp and shrimp products of certain nations unless they met standards that the United States and other nations had been given years to meet constituted arbitrary and unjustifiable discrimination between countries. It further demonstrated that the application of the embargo had resulted in arbitrary or unjustified discrimination between Members and was a disguised restriction on trade. It was clear that while the United States had carefully considered the costs associated with requiring the United States shrimp fleet to use TEDs, such costs had not been taken into account with respect to the newly affected nations. Therefore, the embargo did not meet the requirements of the chapeau of Article XX.

3.270. India, Pakistan and Thailand recalled the legislative history of Section 609 which, in their view, further supported the conclusion that the embargo was a disguised restriction on trade. As previously noted, several United States legislators discussed the embargo in terms of the competitive position of the US shrimp industry. In light of this fact, the United States could not demonstrate that the measure was consistent with the chapeau of Article XX.

3.271. Malaysia submitted that the chapeau of Article XX was concerned with the manner in which that measure was applied, and not with the measure itself. In the event that the Panel in this case was of the view that the measures taken by the United States were consistent with any of the exceptions under Article XX (which Malaysia did not admit) Malaysia submitted that the Panel had to examine the chapeau to Article XX. In the Gasoline case, the Appellate Body held that "disguised restriction" included disguised discrimination on international trade.³⁶³ In that case, there was more than one alternative course of action available to the United States in promulgating regulations implementing the Clean Air Act; these included the imposition of statutory baselines without differentiation as between domestic and imported gasoline. This approach, if properly implemented, could have avoided any discrimination at all. The Appellate Body therefore found that the United States had not pursued the possibility of entering into cooperative arrangements with the governments of Venezuela and Brazil or, if it had, not to the point where it encountered governments that were unwilling to cooperate. With respect to this proceeding, the fact that Malaysia had been allowed only a period of three months to comply with the US requirements as compared to the three years given to the fourteen countries in the wider Caribbean region amounted to an unjustifiable discrimination.

3.272. Malaysia observed that Section 609 had two relevant parts. Section 609(a) provided for the alternative course of action which was the collective effort among countries to conserve sea turtles. Section 609(b) provided for the imposition of the import prohibition. The United States should first exhaust the option under Section 609(a) before resorting to the import prohibition under Section 609(b). In that regard, the United States had not demonstrated that it had exhausted all the options under Section 609(a). Therefore the import prohibition constituted a disguised restriction on international trade. Furthermore, Malaysia submitted that the United States intended to ensure that its domestic shrimp industry would not be unnecessarily disadvantaged. This was evident from the US Congressional Records stating that Section 609 needed to be enacted to complement domestic legislation³⁶⁴ to level the playing field for the US domestic shrimpers. If Section 609 had not been enacted, it would have resulted in the US domestic shrimpers suffering a competitive disadvantage as compared to foreign shrimpers. This was also a form of disguised restriction on international trade.

3.273. Malaysia noted that the United States had not taken into account the actual situation of Malaysia when it listed Malaysia as falling within Section 609. Malaysia was a nesting ground, but was not known for being a feeding ground for sea turtles. This distinction was of prime importance because sea turtles immediately left to their feeding ground after nesting. The nesting season in Malaysia did not overlap with the shrimp trawling season, whereas the United States was both a feeding and nesting ground for sea turtles. It was therefore appropriate to require trawlers to use TEDs in the United States because there was an interaction between the turtles and the trawlers during the shrimping season. Malaysia therefore submitted that the omission by the United States to establish Malaysia's status as a feeding ground before imposing the import prohibition was an unjustifiable discrimination. The application of the import prohibition was therefore clearly a disguised restriction on trade.

3.274. Malaysia noted that the Declaration on Permanent Sovereignty over Natural Resources of 14 December 1962 (UNGA Resolution 1803 XVII) proclaimed that "the right of peoples and nations to permanent sovereignty over their natural wealth and resources" was protected and the permanent right of every state to dispose of its natural wealth and resources should be respected in accordance with their national interest. The concept of permanent sovereignty had not prevented international law from treating conservation issues within a state's territory as a question of common concern in which the international community possessed a legitimate interest. Treaties such as the 1972 World Heritage Convention, the 1973 CITES Convention, the 1979 Berne Convention on the Conservation of the European Wildlife, the 1968 African Convention on the Conservation of Nature and the 1985 ASEAN Convention on the Conservation of Nature and Natural Resources exemplified this point. Migrating species such as sea turtles fell under shared natural resources. A succession of the United Nations General Assembly resolutions had recognized the general principle that states did not have unlimited sovereignty with regard to shared resources. In 1973, UNGA Resolution 3129 XXVIII called for adequate international standards for the conservation and utilization of natural resources common to two or more states to be established, and affirmed that there should be cooperation between states on the basis of information exchange and prior consultation. Article 3 of the 1974 Charter of Economic Rights and Duties of States (UNGA Resolution 3281 (XXIX)) provided that in the exploitation of natural resources shared by two or more countries, each state had to cooperate on the basis of a system of information and prior consultation in order to achieve optimum use of such resources without causing damage to the legitimate interests of others.

3.275. Malaysia was of the view that international law therefore only allowed the conservation of shared natural resources on a cooperative basis and not unilaterally. Malaysia therefore submitted that since Section 609 allowed the United States to unilaterally take actions to conserve a shared natural resource it was therefore in breach of the sovereignty principle under international law. The sovereignty principle was a norm of jus cogens for which no derogation was permitted. No nation had a right under international law to impose on a fishing vessel owned by a Malaysian national fishing in Malaysian waters any requirement other than that imposed by Malaysian law. To do otherwise would be contrary to international law, and GATT being a branch of international law was governed by the fundamental norms of international law. Malaysia further submitted that GATT could not subsist on its own and was still subject to principles of public international law. This principle was recognised in Article 3.2 of the DSU which provided that the DSB should "clarify the existing provisions of the [covered agreements] in accordance with customary rules of interpretation of public international law". The application of the import prohibition was therefore a disguised restriction on international trade.

3.276. The United States argued that the measures relating to imports of shrimp, as required by Section 609 and implemented on the basis of US Department of State Guidelines, were carefully and justifiably tied to the particular conditions of each country exporting shrimp to the United States and, thus, were not applied in a manner that constituted a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevailed. In particular, the criteria for certification under Section 609 were finely tailored to conditions in the exporting country�s shrimp fishery. For example, all nations having shrimp fisheries only in cold waters, where there was essentially no risk of taking sea turtles, were certified under Section 609.³⁶⁵ All nations whose shrimp vessels only harvested shrimp by the use of small-crewed, manually-retrieved nets - means which were highly unlikely to result in high sea turtle mortality - were certified under Section 609.³⁶⁶ And all nations which had adopted turtle conservation programmes comparable to the US programme, including requirements for the use of TEDs in waters where there was a likelihood of intercepting sea turtles, were certified under Section 609.³⁶⁷ In sum, the United States had diligently applied Section 609 in a manner that related to exporting countries based on specific and reasonable criteria tightly tied to the goal of conserving sea turtles.

3.277. Nor were the measures of the United States a "disguised restriction on international trade". In fact, the evidence was overwhelming that United States' sea turtle conservation measures under Section 609 were not some artifice intended to protect the US fishing industry. As reflected by the inclusion of sea turtles in CITES Appendix I, the international community had made the commitment to protect and conserve sea turtles. By virtue of the 1982 United Nations Convention on the Law of the Sea and UNCED Agenda 21, the international community had made the commitment to minimize by-catch of non-target species (including endangered sea turtles) in fishing operations. And, as illustrated by Inter-American Convention on the Protection of Sea Turtles, there had recently developed a specific, multilateral standard requiring the use of TEDs by shrimp trawl vessels in waters where there was a risk of intercepting sea turtles. The strong and growing international consensus regarding sea turtle conservation and the mandatory use of TEDs belied any claim that the US measures encouraging the use of TEDs were some sort of disguised restriction on trade. In addition, the United States had made extensive efforts to disseminate TEDs technology worldwide, including to shrimp fishermen of the complainants. The success of these efforts was shown by the fact that 18 nations had adopted TEDs requirements, including Thailand. The successful efforts of the United States to disseminate TEDs technology rebutted any claim that Section 609 was a disguised restriction on trade, since the United States would hardly be spending resources on helping other countries meet US standards relating to the importation of shrimp if the United States' motivation was to protect US domestic production.

3.278. Furthermore, as recognized by the complainants, Section 609 had become applicable to them as a result of a decision by the US Court of International Trade in a case brought by environmental and conservation groups. These groups pursued the application of Section 609 not because it would protect domestic production but because it would conserve and protect sea turtles. Section 609 also was narrowly crafted to affect imports of shrimp harvested in ways that were harmful to sea turtles. Section 609(b) did not apply to all shrimp. Shrimp harvested in ways that did not harm turtles (such as shrimp harvested by aquaculture, shrimp caught with a wide variety of gear that did not kill turtles, and shrimp harvested in cold or fresh water) were completely outside the scope of Section 609(b). The United States noted that the large majority of shrimp harvested by each of the complainants, and by many other nations, was aquaculture shrimp. Had the United States intended to adopt a disguised restriction on trade in shrimp, Section 609 would not be so narrow in its scope. Finally, the US measures at issue in this case had not disrupted the level of imports of shrimp into the United States. Since 1 May 1996, when these measures became applicable to the complainants and to other nations outside the Wider Caribbean/Western Atlantic region, total US imports of shrimp had remained essentially constant and the price of imported shrimp had declined. If Section 609 were in fact a disguised restriction on trade, one would expect substantially reduced imports and higher prices.

3.279. The United States further argued that none of the arguments advanced by India, Malaysia, Pakistan and Thailand supported a finding that US measures under Section 609 somehow failed to meet the requirements of the Article XX chapeau. The four complainants' argument that they were allowed only three to four months to comply with US requirements under Section 609, while the Wider Caribbean/Western Atlantic countries were allowed three years was not factually accurate. Section 609 applied to shrimp harvested in the Wider Caribbean/Western Atlantic region as of 1 May 1991. It was true that the initial State Department Guidelines allowed those countries to phase in the use of TEDs over three years, so long as they met specific progress toward a comprehensive TEDs programme along the way. But the phase-in for these nations was justified in light of the fact that, at that time (1991-1994), TED technology was neither as well-developed nor as readily available, especially for developing countries. By the mid-1990's, i.e. by the time Section 609 had become applicable to shrimp harvested in the complainants' countries, extraordinarily effective TEDs were both inexpensive and easily available, making the adoption of TEDs programs considerably more feasible. Indeed, as noted, Thailand had adopted such a programme with great speed.

3.280. The United States submitted that Malaysia failed to point out how the different periods between notice and compliance for different nations, in practice, had had any effect on Malaysia. Malaysia provided no indication that it ever intended to adopt a TEDs requirement. Thus, with respect to Malaysia, the time allowed for compliance with Section 609 was simply not relevant. Regarding Malaysia's argument that US measures under Section 609 constituted a disguised restriction on international trade because the United States had not exhausted all collective efforts among countries to conserve sea turtles, the United States recalled that Article XX(b) did not include an "international cooperation" requirement, and the same held true for the Article XX chapeau. Furthermore, the United States in fact had approached Malaysia concerning the negotiation of a sea turtle conservation agreement, and had not received a positive response.

3.281. The United States also rejected Malaysia's argument that the legislative history of Section 609 showed that the statute was intended to benefit US shrimp fisherman, and that this intent constituted a disguised restriction on international trade was based on unidentified legislative history. The shortest answer to this argument was that the legislative history of Section 609, as well as the practice of the United States in certifying nations under Section 609 and disseminating TEDs technology, completely rebutted any argument that Section 609 was a pretence intended to benefit US shrimp fishermen. Malaysia failed to provide any support for its proposition that international law only allowed the conservation of shared natural resources on a cooperative basis, and not unilaterally. It merely referred to a UN resolution advocating cooperation in the exploitation of shared natural resources; Malaysia cited to nothing which indicated that a country should not take measures to conserve natural resources outside its jurisdiction. And indeed, as noted above, Malaysia was a party to CITES, and was obligated for conservation purposes to take trade measures against all countries, even those not a party to CITES. Thus, CITES rebutted Malaysia�s contention that conservation measures under international law must be taken on a "cooperative basis". Other multilateral agreements cited in paragraphs 3.192 and 3.193 similarly served to rebut Malaysia's contention regarding principles of international law. Finally, the United States noted that Malaysia could not cite a single source of international law that directly stated its supposed general principles regarding sovereignty. Therefore, the implied limitations advocated by Malaysia, based on purported general principles of international law, should be disregarded, and the Panel should not depart from the text of the GATT. Similarly, Malaysia cited no international agreement providing that countries had to cooperate in taking trade measures aimed at the conservation of shared natural resources. Multilateral environmental agreements exhorted countries to cooperate, but exhortations did not reflect a shared international consensus that cooperation was a required precondition for the adoption of trade measures. In fact, the very instruments cited by the four complainants showed that cooperation was not a requirement.

3.282. India, Pakistan and Thailand maintained that the US measures had been applied in a manner which constituted arbitrary and unjustifiable discrimination because the US provided longer phase-in periods for domestic shrimpers and for initially affected nations vis-à-vis the newly-affected nations. While allowing longer phase-in periods for domestic shrimpers could have constituted wise domestic policy, the United States had not provided equal consideration to the costs associated with immediate application of the TEDs requirement to newly-affected nations. Such discrimination was in fact specifically recognized by the US government during the litigation before the Court of International Trade. In light of these facts, this Panel should conclude that the US measures constituted unjustifiable discrimination and a disguised restriction on trade. The US attempted to suggest that its discriminatory application of the TEDs requirement was somehow justified because of the difference in available TEDs technology. First, as the complainants had demonstrated, TEDs were not "inexpensive" for their respective fishermen. Moreover, the claim that TEDs approved by the United States were "extraordinarily effective" was belied by recent tests and the high levels of stranding which had occurred in the United States in recent years. Finally, India, Pakistan and Thailand noted that in arguments made before the US Court of International Trade, the United States had cited many reasons why newly-affected nations would have difficulty meeting the four month deadline, including the lack of time to provide significant training and practice in the construction, installation and maintenance of TEDs and the limited funding for the adoption of a TEDs programme. India, Pakistan and Thailand noted that the United States attempted to dismiss the importance of the statements made during the domestic litigation by stating that the issue before the US Court of International Trade was timing. However, there was no factual basis for this differentiation which had resulted in the measures being applied so as to constitute a means of arbitrary and unjustifiable discrimination and a disguised restriction on trade.

3.283. Regarding the interpretation of the phrase "where the same conditions prevail", India, Pakistan and Thailand noted that the Appellate Body in the Gasoline case accepted the views of the parties that the phrase referred to comparative conditions in the exporting country and in the importing country maintaining the measure in dispute and as between exporting countries.³⁶⁸ India, Pakistan and Thailand believed that this was the correct interpretation of the phrase and had demonstrated that the measures at issue unjustly and arbitrarily discriminated between the newly-affected countries and the initially affected countries and between the newly-affected countries and the shrimp industry in the United States. Further, India, Pakistan and Thailand believed that the phrase meant that similarly-situated countries had to be treated equally. For example, while the complainants did not concede that it was legitimate to distinguish between nations based on whether or not they had adopted a production method forced upon them by another Member, this clause made clear that if the United States were to permit entry of shrimp from one certified nation, but to deny entry of shrimp from other certified nations, such action would constitute discrimination between countries in which the same conditions prevailed. In short, to the extent that the fact of certification was legitimate and constituted "the same conditions", certified countries were to be treated equally. In the dispute before the Panel, all certified nations had not been treated equally. Specifically, Thailand had been arbitrarily and unjustifiably discriminated vis-à-vis other certified nations because, without any basis, Thailand had not been given the same opportunity as the initially-affected nations to become certified without disruption of trade.

3.284. India, Pakistan and Thailand did not agree that Section 609 was narrowly crafted to affect imports of shrimp harvested in ways that were harmful to sea turtles. First, as applied, Section 609 prohibited the entry of shrimp caught using TEDs from non-certified countries. Further, Section 609 currently allowed for the importation of shrimp caught using soft-TEDs, even though soft-TEDs had been found to be ineffective at excluding sea turtles. How such shrimp was captured in manner which was any less harmful to sea turtles than simply not using a TED was not clear.³⁶⁹

3.285. Pakistan added that, by refusing to certify Pakistan even though 8 other countries harvesting wild shrimp by manual means had been certified, the US measures had been applied in a manner which constituted a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevailed and a disguised restriction on international trade. In addition, the distinction made by the United States between so-called "cold-water" shrimp fisheries and "warm-water" shrimp fisheries constituted arbitrary and unjustified discrimination where the same conditions prevailed and a disguised restriction on trade. For example, one of the species of sea turtle which did occur in US waters ranged as far north as Canada, yet Canada had been certified as one of the 16 nations that had "shrimp fisheries in only cold waters whether there was essentially no risk of taking sea turtles". Even if the United States had some evidence that its shrimpers along the northern Atlantic coast did not encounter sea turtles often, it was not clear that the same evidence existed with respect to the cold-water shrimp fisheries of other nations. At the very least, such nations should be required to provide the same type of evidence as the nations with warm-water shrimp fisheries that claimed that their shrimp trawl fisheries did not take place in areas where sea turtles occurred.

To Continue With Chapter 3.286

³⁵⁵ Ibid., p. 20.

³⁵⁶ Ibid., p. 19.

³⁵⁷ Ibid., p. 19.

³⁵⁸ Appellate Body Report on United States - Standards for Reformulated and Conventional Gasoline, adopted 20 May 1996, WT/DS2/9.

³⁵⁹ Ibid., p. 19.

³⁶⁰ Ibid., p. 19.

³⁶¹ Ibid., p. 22.

³⁶² Ibid., p. 28.

³⁶³ Ibid., p. 25.

³⁶⁴ Endangered Species Act, 1973 and the Regulations thereunder.

³⁶⁵ The United States noted that 16 nations were currently certified under this criterion.

³⁶⁶ The United States noted that 8 nations were currently certified under this criterion.

³⁶⁷ The United States noted that 19 nations were currently certified under this criterion.

³⁶⁸ Appellate Body Report on United States - Standards for Reformulated and Conventional Gasoline, adopted 20 May 1996, WT/DS2/9, p. 23-24.

³⁶⁹ India, Pakistan and Thailand noted that the United States also argued that the fact that the US litigation involved environmental groups demonstrated that Section 609 was not a disguised restriction on trade. While the complainants would not quibble with the relevance of this point, they would note that one of the parties to the legal action in question was the Georgia Fishermen's Association, Inc.