3.286. Malaysia argued that the agreements referred to by the United States in paragraph 3.277 made reference to the fact that States had to ensure through proper conservation and management measures that the maintenance of living resources was not endangered by over-exploitation and by the use of selective, environmentally safe and cost-effective fishing gear, but did not mention the use of TEDs specifically. These agreements did not in any way fortify the US claim that Section 609 was a measure intended to conserve sea turtles and was not a disguised restriction on international trade. The Inter-American Convention on the Protection of Sea Turtles provided that parties to the regional agreement had to take appropriate and necessary measures in accordance with international law and on the basis of the best available scientific evidence. This included, inter alia, the reduction of the incidental taking of sea turtles in the course of fishing activities through, for instance, the development and use of appropriate gear, including TEDs. However there were still countries which had not recognised the use of TEDs. This factor also did not further the US contention that Section 609 was not a disguised restriction on international trade. Malaysia refuted the US contention that the dissemination of TEDs technology rebutted any claim that Section 609 was a disguised restriction on trade. Malaysia had not gained from the United States in this regard, save for a regional workshop organised by the Thai Department of Fisheries, in cooperation with the Department of Foreign Trade and NMFS, US Department of Commerce. As to the US contention that "Malaysia provided no indication that it ever intended to adopt a TEDs requirement", Malaysia recalled that (i) it had participated in the regional workshop titled "[t]he Utilisation of Shrimp Trawls Equipped with TED" organised by the Department of Fisheries, Thailand, in cooperation with the US Department of Foreign Trade and NMFS, and (ii) Malaysia had undertaken, with SEAFDEC, work to localize where the SEAFDEC developed TED should be used in Malaysia, which had led to the introduction of TEDs at Sigari, Perak. With regard to the US contention that Section 609 had been narrowly crafted so as to exclude any element of a "disguised restriction", Malaysia submitted that the different time period provided by the United States to Malaysia and to the newly affected countries to comply with Section 609 requirements, as compared to the 3 years given to the 14 countries of the wider Caribbean region and a period of about 10 years to the US domestic shrimpers, constituted an unjustifiable discrimination. Even if Malaysia had been given 3 years to phase-in TED use, it would still be unacceptable from a legal and practical point of view. Legally, the same 3 years would still cause the import prohibition inconsistent with GATT Article XIII because a 3 year phase-in would not change the fact that there is a different treatment between the complainants and the initially affected countries, inconsistent with Article XIII. Practically, even after certification, Malaysia would still be subject to a yearly assessment and review by the US State Department, as required under Section 609; such an assessment was subjective and created an element of uncertainty which was disruptive to trade. Moreover, that fact that Malaysia and other uncertified countries had suffered a loss of market share refuted the US contention that Section 609 was not a disguised restriction on trade.

3.287. According to Malaysia, "where the same conditions prevail" applied to both the position of the United States vis-à-vis Malaysia and the position of Malaysia vis-à-vis other countries affected by Section 609. The same conditions had to apply to the United States and Malaysia in order to fulfil the requirements of the chapeau and the treatment had to be the same for other affected countries. Regarding the concept "the same conditions prevail", Malaysia stressed the following facts. The major sea turtle species which were of concern in the United States were the loggerhead and the Kemp's ridley. These two species had been more extensively studied than the other species, in particular in publications addressing mortalities in shrimp trawls. On the other hand, loggerheads rarely nested on Malaysian beaches, and Kemp's ridleys did not occur in Malaysian waters. In Malaysia, the major sea turtle species was the green turtle, followed by the hawksbill, the leatherback and the olive ridley. The high mortality of sea turtles reported in shrimp trawls in the United States actually referred to loggerheads and Kemp's ridleys. These two species lived in nearshore waters where they fed on bottom invertebrates such as crabs, shrimp and mollusc. These habitats were heavily trawled by shrimpers in the United States. The residence of loggerheads and Kemp's ridleys in trawling grounds in the United States naturally accounted for the facts that large numbers of these turtles were caught in shrimp trawl nets, and explained why in the United States it was essential that TEDs be applied to shrimp trawlers to save these two species from extinction. Since neither loggerheads nor Kemp's ridleys lived in nearshore waters in Malaysia, the same conditions did not prevail in Malaysia. Malaysia further argued that green turtles were residents in seagrass beds, which were found in shallow coastal waters, and hawksbill were found in coral reef; trawling was prohibited in these areas. During the nesting season, green turtles remained close to shore, in areas where, again, trawling was prohibited. During long-distance migrations between feeding and nesting grounds, turtles were actively swimming close to the surface of the water, which made them more vulnerable to driftnets and longlines rather than trawlnets. In Malaysia, trawling targeted fish for the most part of the year and, thus, the incidental capture of sea turtles was due to fish trawls and not shrimp trawls. Again, this demonstrated that the same conditions did not prevail in Malaysia.

3.288. With regard to the relevance of public international law in interpreting the chapeau, Malaysia agreed with the United States that the Panel should not depart form the text of the GATT. However, this did not preclude the Panel from following customary rules of interpretation of public international law in deciding this case, as required by Article 3.2 of the DSU. Malaysia stressed that the multilateral agreements cited by the United States in paragraphs 3.192 and 3.193 were primarily used to show that countries had jurisdiction over a matter regardless of where the matter was located. Malaysia questioned which provisions of these multilateral agreements cited by the United States required countries to take conservation measures against a country not party to the agreement and recalled its arguments in this regard, contained in paragraphs 3.274 and 3.275. Malaysia further noted that multilateral environmental treaties generally resorted to the soft law approach and their provisions were written in a persuasive language, as could be seen from the provisions requiring parties to undertake obligations under the agreement. This contrasted with the mandatory language of treaties based on hard law, such as the 1949 Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, and the 1949 Geneva Convention II Relative to the Treatment of Prisoners of War.

3.289. The United States considered that the term "where the same conditions prevail" had to be interpreted "in accordance with its ordinary meaning", in its "context and in the light of its object and purpose".³⁷⁰ As the Appellate Body explained in the Gasoline case, the object and purpose of the Article XX chapeau was generally to prevent the abuse of the Article XX exceptions.³⁷¹ Accordingly, the term "where the same conditions prevail" should include the "conditions" in a country that related to the policy goal of the applicable Article XX exception. In other words, if a measure discriminated among countries based on conditions that were legitimately connected with the policy of an Article XX exception, the measure did not amount to an abuse of the applicable Article XX exception. Here, the United States was invoking Article XX(g), which had the goal of conserving exhaustible natural resources. In particular, the United States submitted that its restrictions on shrimp importation related to its goal of conserving endangered species of sea turtles. Thus the relevant "conditions" in this case were those conditions of shrimp harvesting that related to the conservation of sea turtles. In fact, the United States measures were tailored to the conditions of the exporting country�s shrimp fishery, as those conditions related to sea turtle conservation, as explained in paragraph 3.276.³⁷²

3.290. The United States noted that the only discrimination alleged by the complainants related to the timing of the application of the US measures. However, as already noted, the difference in timing, at most, benefitted the complainants. They had not been subject to measures under Section 609 for a full three years after those measures had been first applied to nations in the wider Caribbean Western Atlantic region. And, by the time Section 609 had been applied to countries outside the wider Caribbean/Western Atlantic region, TEDs had developed to the point where they were extraordinarily effective, easily available, and inexpensive. Nor were the US measures a disguised restriction on international trade.

3.291. India, Pakistan and Thailand replied that, since the United States had failed to show that shrimp trawling was the primary cause of sea turtle mortality in the complainants' waters, it could not demonstrate that it had discriminated between the complainants and other nations based on conditions legitimately connected to the Article XX exceptions. The Preamble to the WTO Agreement, which the United States considered pertinent to interpreting Article XX, required, inter alia, that measures to protect the environment be undertaken "in accordance with the objective of sustainable development" and "in a manner consistent with [Members'] respective needs and concerns at different levels of economic development". India, Pakistan and Thailand were of the view, however, that the United States had failed to demonstrate, in enacting the measure at issue, that it had considered whether it was more appropriate under the concept of sustainable development to address other, more significant, local causes of sea turtle mortality than shrimp trawling. The United States had also failed to demonstrate that it had considered the complainants' needs and concerns based on their level of economic development. Even accepting the US argument that "the condition in this case were those conditions of shrimp harvesting that related to the conservation of sea turtles", there was no justification for allowing the initially affected nations nearly three years in which to attain the required "conditions", while providing the complainants with less than five months to comply. India, Pakistan and Thailand also considered that TEDs had not been "extraordinarily effective" in the United States and the TEDs programme had been very expensive to implement in Thailand.

3.292. India, Pakistan and Thailand stressed they did not contend that the US TED programme had been implemented as a disguised restriction on international trade; the US programme was a response to clear scientific evidence regarding the principal threat to sea turtles swimming along the coastline of the United States. However, India, Pakistan and Thailand contended that extending the same programme outside the United States was a disguised restriction on international trade, because scientific evidence did not demonstrate that shrimp trawling was the principal threat or even an immediate threat to sea turtles elsewhere in the world. India, Pakistan and Thailand were of the view that TEDs were not an "international environmental standard" and believed that TEDs use by many countries did not indicate a recognition of their necessity to protect sea turtles but rather the necessity to adhere to this standard if they desired to sell shrimp in the United States. Thus, the US argument that TED requirement was not a disguised restriction on trade because it was an international environmental standard was unpersuasive. The complainants' contention that the measure acted as a disguised restriction on international trade flowed from the fact that several in Congress who had supported this measure were apparently more concerned with equalizing the costs of environmental regulation imposed on the domestic industry with that imposed on its foreign competitors, regardless of the relative merits of regulating shrimp trawl fisheries, as opposed to taking other measures to protect and increase sea turtle populations in other parts of the world. Furthermore, the dissemination of information on TEDs by the United States had been rather limited in India, Pakistan and Thailand and did not reduce the costs of implementing a universal TEDs programme, or the costs imposed on individual shrimp trawlers. Finally, the fact that the total level of shrimp imports into the United States had not been disrupted did not compel the conclusion that the US measures were not a disguised restriction on trade. The nature of the trade restriction was the imposition of an additional cost on the foreign industry making that industry less cost-competitive in the United States and the risk that the right to export to the United States might be revoked if a country lost certification. The fact that the foreign industry was still able to collectively ship the same amount of shrimp to the United States did not mean that there had been no restriction on international trade. It might mean that overall consumption was increasing or that foreign profitability had been squeezed, discouraging future investment in the exporting countries. This was precisely the intent of those in the Unites States Congress who had sought to impose on foreign shrimp fisheries the additional regulatory costs of protecting sea turtles through the mandatory use of TEDs. These facts contradicted the US assertions that its measures were not a disguised restriction on trade.

3.293. Malaysia responded that the United States had failed to prove that the same conditions had to apply to the United States and Malaysia. The reasons given by the United States in paragraph 276 attempted to show that the same conditions existed between countries which were affected by Section 609. However, Malaysia had proved that the same conditions did not prevail between the United States and Malaysia.

3.294. The United States first noted that, contrary to what was claimed by India, Pakistan and Thailand, nothing in the text of the Article XX chapeau required that a measure address the "primary cause" of an environmental problem. The United States further argued that the US measures under Section 609 were not abuses of the Article XX exceptions, but rather bona fide measures for the conservation of sea turtles. First, the complainants seemed to agree in substance with the United States that the relevant conditions to consider when interpreting the phrase "where the same conditions prevail" were those conditions of shrimp harvesting that related to the conservation of sea turtles. In that regard, the United States reiterated that all exporting nations with the same shrimp-harvesting conditions were treated equally, without discrimination. The complainants had actually benefited from the difference in timing they pointed out. As to the argument that the United States currently did not permit imports of shrimp caught with TEDs from nations that were not certified under Section 609, the United States recalled that none of the complainants were uncertified nations that were attempting to export TED-caught shrimp to the US market. Indeed, the United States was unaware of any uncertified nation that would like to export TED-caught shrimp to the United States. Moreover, the question of the application of Section 609 to TED-caught shrimp from uncertified nations was currently under consideration by a US Appellate Court. Finally, the US measures under Section 609 were not a "disguised restriction on international trade" because they did not represent an "abuse or illegitimate use" of the individual paragraphs of Article XX. To the contrary, the record showed that sea turtles were endangered by shrimp trawling practices, that TEDs prevented such harm, and that, by restricting the importation of shrimp caught without TEDs, Section 609 sought to ensure that the US shrimp market did not contribute to the endangerment of sea turtles.

3.295. The United States further noted that the aggregate US import data provided to the Panel showed that the US measures under Section 609 had not affected aggregate shrimp import quantity or price, and thus had not provided any protection to the domestic industry. These data further supported the point that Section 609 was not a disguised restriction on trade. Finally, the fact that shrimp caught with so-called soft TEDs could be imported into the United States, while hard TEDs had been found more effective missed the point. Once again, the India, Pakistan and Thailand tried to turn the issue from the application of Article XX to questions of sea turtle conservation policy. The United States measures did not amount to a "disguised restriction" regardless of whether the United States allowed the importation of shrimp caught with soft TEDs.

3.296. India, Pakistan and Thailand responded that the United States misapprehended their point when claiming that nothing in the Article XX chapeau required that a measure address the "primary cause" of an environmental problem. The chapeau forbade unjustified discrimination between countries "where the same conditions prevail". The United States claimed that it did not discriminate unfairly against the complainants because it based its discrimination on whether or not a country had a TED programme in place and whether or not a TEDs programme was necessary in the circumstances to protect sea turtles. (In cases in which the United States considered TEDs of limited or no effectiveness in protecting sea turtles, including certain regions in the United States itself that sea turtles were known to inhabit, shrimp trawl industries were exempted from the TEDs requirements.) However, India, Pakistan and Thailand maintained that there was unjustified discrimination between them and countries with no TEDs requirements (including portions of the United States) because the United States had failed to demonstrate in such case that the "same conditions" did not prevail in India, Pakistan and Thailand on one hand, and in those other nations on the other hand. Specifically, the United States had failed to demonstrate that the imposition of a TEDs requirement was any more necessary to protect sea turtles in India, Pakistan and Thailand than it was for those other countries and US regions for which no TEDs were required.

3. Article XXIII:1(a)

3.297. India, Pakistan and Thailand recalled that Section 609 and the resulting embargo and certification process represented a clear infringement of GATT Articles I, XI and XIII. It was well-established that "in cases where there is a clear infringement of the provisions of the General Agreement, or in other words, where measures are applied in conflict with the provisions of the GATT ..., the action would, prima facie, constitute a nullification or impairment" within the meaning of Article XXIII of GATT.³⁷³ In particular, import restrictions had been found to constitute a prima facie case of nullification of impairment and the party imposing the restriction had the burden to rebut the presumption.³⁷⁴

3.298. India and Pakistan further submitted that this case presented a clear-cut example of a measure imposed by one Member nullifying and impairing the rights and benefits of another Member. As noted, the volume and value of Indian and Pakistani shrimp exported to the United States had declined dramatically since the embargo had been imposed. Moreover, the embargo had led to an increase in transaction costs associated with exporting shrimp to the United States since all exporters had to obtain the signature of an authorized government agent before the merchandise was shipped. Furthermore, the US embargo had created a great deal of uncertainty and confusion in the Indian and Pakistani shrimp industry. This was conclusory evidence that the two complainants' rights had been nullified or impaired by the shrimp embargo. In similar circumstances, prior dispute settlement panels had found "the existence of a quantitative restriction should be presumed to cause nullification or impairment not only because of any effect it had on the volume of trade but also for other reasons, e.g. it would lead to increased transaction costs and would create uncertainties which could affect investment plans".³⁷⁵

3.299. Thailand further submitted that, in addition to the fact that Section 609 and the embargo represented a prima facie nullification or impairment of the benefits accruing to Thailand under the General Agreement, the embargo proximately had caused a decline in exports of shrimp and shrimp products to the United States. As noted, from the date of application of the embargo to Thailand to the date on which Thailand had been certified, exports of shrimp from Thailand to the United States had declined by approximately 18 per cent from the same period in 1995. Moreover, since the United States could decertify Thailand without notice or recourse, Thailand's shrimp trade could face similar declines in the future, and, because of this threat, was subject to uncertainties which might limit investment in the shrimp industry in Thailand. In addition, application of the embargo and certification procedures had created uncertainties in the marketplace and had increased transaction costs associated with shrimp trade with the United States.³⁷⁶ Among the increased transaction costs were the cost of installing TEDs on Thailand's commercial shrimp trawl fleet, the cost of creating education programmes to teach Thai shrimp trawlers how to use TEDs, and the cost to the Royal Thai Government of implementing and enforcing the regulation regarding the use of TEDs.

IV. ARGUMENTS PRESENTED BY THIRD PARTIES

1. Australia

4. 1. Australia submitted that its exports of shrimp to the United States had been subject to the requirements laid down under Section 609 since May 1996. The unilateral, and selectively abrupt, imposition by the United States of an import embargo under Section 609 raised important trade and environmental policy concerns, including the fact that it was pursuing the objective of turtle protection through the unilateral imposition of an import embargo rather than working cooperatively at the bilateral level and through multilateral fora to address any transboundary or global issues involved. Australia's concerns were not about the validity of the US environmental objectives to protect and conserve turtles, but the particular measures it had chosen to use in pursuit of these objectives and their consistency with its WTO obligations.

4.2. In spite of having submitted a request for certification in April 1996, Australia had not been certified on 1 May 1996. In support of its request for certification, Australia had presented a detailed submission on its marine turtle conservation regime which extended well beyond protecting turtles from shrimping nets.³⁷⁷ That conservation regime included cooperative programmes with the shrimp industry to limit turtle/trawler interaction. Six of the world's seven species of marine turtles were found in northern Australian waters. They were migratory animals whose populations were shared between Australia and its regional neighbours in the Indo-Pacific. There was international concern over the impact of human activities on turtle populations which included commercial and subsistence hunting, egg harvesting, damage to nesting beaches and feeding areas, fisheries bycatch, marine debris, and boat-strike. The Australian fishing industry was committed to continuous improvement in its understanding and amelioration of the effects of shrimp trawling on the environment generally and specifically on animals which were of conservation significance. Research efforts to minimise bycatch was also well advanced in the Northern Prawn Fishery (NPF).

4.3. Australia submitted that total Australian exports of shrimp were valued at A$ 223 million in 1995/96. Annual exports accounted for 60 to 70 per cent of the total Australian shrimp harvest. Therefore, Australia had a substantial trade interest in this dispute, although direct exports to the US market had not been significant in recent years. Australia had a particular concern with the medium to long term implications of disruption to global markets, increased competition from embargoed shrimp, potential for existing markets to lever down prices, and consequent changes to other countries' import requirements.

4.4. Australia argued that the US measures were inconsistent with Articles I and XI and were not covered by Article III of GATT 1994. Moreover, the United States did not demonstrate that its measures were in conformity with the requirements of Article XX.

4.5. The differential treatment of shrimps from certified and non-certified countries was inconsistent with the requirements of Article I:1 of GATT 1994. The US import restrictions were based solely on country of origin of shrimps, including between WTO Members. The United States had granted certification to some forty countries on the basis that they were cold water shrimping nations, or that they did not use mechanical means to harvest shrimp or that they required the use of TEDs. However, the United States had refused certification to Australia and certain other shrimp exporters, and exports of certain shrimp from these countries were prevented entry into the United States except for specific categories such as aquaculture shrimp. Shrimp from certified countries were not subject to such limitations. Certification was granted not on the basis of any differences in the products exported by certified and non-certified countries but on the basis of differences in their domestic conservation policies. There was nothing in the US certification requirements that provided a basis for considering that shrimp and shrimp products from certified and non-certified countries were not "like" products, and the US measures did not require any differences in products in granting certification. Consequently, the US measures granted an advantage to imports of shrimp and shrimp products from certified countries which was not available to the imports of like products from non-certified countries. This constituted discriminatory treatment of products on the basis of country of origin as the US measures distinguished between imports on the basis of the domestic conservation policies of the exporting countries and not on the basis of differences in the nature or character of the products. The measures were therefore inconsistent with US obligations under Article I:1.

4.6. Australia further argued that the US measures did not come within the scope of Article III as they were not measures relating to internal taxation and regulation of imported goods, but were conditions attached to the importation of a product. The measures constituted an import embargo on shrimps which were not harvested using TEDs and, as such, came within the scope of Article XI. Even if the United States was to claim that the measures were internal regulations enforced at the border, and within the scope of the Note Ad Article III, the measures would still not meet the requirements of Article III. Under the US measures, certification and therefore import approval was contingent upon the exporting nation instituting and enforcing a "comparable" regulatory regime which modified prawn harvesting practices to reduce turtle mortality. Such measures were clearly not intended to be covered by Article III. The Tuna II Panel Report, for instance noted that "Article III calls for a comparison between the treatment accorded to domestic and imported like products, not for a comparison of the policies or practices of the country of origin with those of the country of importation". The Panel also found that Note Ad Article III could, therefore, only apply to "those laws, regulations and requirements that affected or were applied to the imported and domestic products considered as products".³⁷⁸ The US measures distinguished between shrimp and shrimp products on the basis of the domestic conservation policies of the country in which they were harvested. Other than specified exceptions, imports were prevented of products from countries judged not to have a programme to reduce the incidental capture of sea turtles in shrimp fisheries comparable to that in the United States, specifically through the mandatory use of TEDs. This distinction did not relate to shrimp as products and therefore could not be covered by the provisions of Article III.

4.7. With respect to Article XI, Australia submitted that the US measures banned the import of shrimp and shrimp products from non-certified countries except for some specified categories including aquaculture shrimp or shrimp harvested in areas where there was no risk of capturing sea turtles. As certification was granted on the basis of differences in countries' domestic conservation policies, the US measures essentially banned imports of shrimp from countries not meeting certain policy conditions. In Tuna II, the panel found that a ban on the import of tuna or tuna products from any country not meeting certain policy conditions were "prohibitions or restrictions" in the terms of Article XI of GATT.³⁷⁹ The US measures were therefore inconsistent with the requirements of Article XI:1. As they represented import prohibitions and not restrictions, and as the United States had not claimed that the measures related to the application of standards or regulations for the classification, grading or marketing of commodities, the measures did not come within the scope of paragraph 2 of Article XI.

4.8. Australia considered that, by not contesting the inconsistency of the import embargo under other GATT provisions and by invoking the provisions of Article XX, the United States had the burden of demonstrating that it had the exceptional right to maintain measures which were not in conformity with other GATT provisions. Australia did not contest that measures having the claimed objective of protecting animal life and of conserving exhaustible natural resources came within the scope of Article XX(b) and (g). The fundamental issue in the present case was whether the import embargo on certain shrimp caught in other locations, which had been imposed on the basis of unilaterally determined US standards for the protection of turtle life and for the conservation of turtles in the United States, constituted measures which were necessary for the protection of turtles or were related to the conservation of turtles as an exhaustible natural resource.

4.9. In Australia's view, the dispute did not concern the relationship between the GATT and obligations under another international treaty or international legal norms in regard to the use of TEDs in shrimp harvesting in all locations. For instance, the provisions of the Inter-American Convention could only involve a regional standard agreed between parties to that Convention. No party was contesting the GATT consistency of restrictions on trade in sea turtles under other international treaties. As the United States was not required by any other international treaty to impose an import embargo on shrimps from countries such as Australia which did not have regulatory programmes requiring the use of TEDs, conflict between obligations under the GATT and other international treaties was not at issue. The panel had, therefore, to consider whether the United States had demonstrated that import embargoes on certain shrimp, that were imposed on the basis of the regulatory programmes of other countries governing shrimp harvesting in their jurisdiction, met the conditions of Article XX(b) and (g), including the chapeau to Article XX.

4.10. Australia considered that the WTO Agreement on Sanitary and Phytosanitary Measures was not relevant to the present issue because the approach of that Agreement in regard to unilaterally determined measures had no application to circumstances involving measures which did not involve pest or disease control and which applied to animal life and conservation outside the territory of a Member.

4.11. Australia did not contest that measures having the stated purpose of protecting and conserving sea turtles came within the scope of Article XX(b) and (g). However, Australia did not consider that the United States had demonstrated that its discriminatory trade measures on shrimp were either necessary for the protection of sea turtles in all locations or satisfied the conditions attached to the use of discriminatory trade measures for the purpose of sea turtle conservation.

4.12. The only way in which another WTO Member, including Australia, could gain access to the US import market for certain shrimp was to meet the US certification requirements. Except in regard to cold water, artisanal and aquaculture shrimping, the only way in which a Member could be certified was by adopting the same mandatory TED requirement as the United States, and irrespective of the turtle conservation policies of that Member. The United States was not obligated to impose the specific certification requirements on other Members in accordance with either US or Australian obligations under another international treaty. Rather, the United States was imposing a trade measure on other Members with the effect of "burden sharing" in terms of the economic consequences of harvest loss associated with the use of TEDs. US mandatory requirements for the use of TEDs effectively hindered international cooperation in commercial bycatch issues.

4.13. It was difficult to see how the US measures could have any direct effect on the conservation or protection of turtles. For example, shrimp caught with TEDs in non-certified countries were still subject to the embargo. Furthermore, shrimp subject to the embargo could come from countries which had effective policies and programmes for turtle conservation, or were developing such programmes, but which were not certified simply because their policies differed from that of the United States in not mandating the use of TEDs. There could be environmental, commercial and regulatory reasons why a different approach to addressing bycatch issues was appropriate in other countries. The US import embargo therefore prohibited imports from non-certified countries, whether or not the particular shrimp was harvested in a manner that harmed or could harm turtles, and whether or not these countries had shrimp harvesting practices and policies that harmed or could harm shrimp. The embargo could not, by itself, further the US conservation objectives. The only way in which the embargo could possibly contribute to these objectives would be if it was followed by changes in the policies and practices of the exporting countries. As pointed out in the Tuna II Panel Report, measures which could only have a conservation or wildlife protection effect if they resulted in changes in the policies pursued by other countries, could not be primarily aimed at the conservation of an exhaustible natural resource, or at rendering effective restrictions on domestic production or consumption, in the meaning of Article XX(g), nor could they be considered "necessary" for the protection of animal life or health in the sense of Article XX(b).³⁸⁰

4.14. By claiming that discriminatory import restrictions had been imposed for the purposes of ensuring that US conservation measures were not "undermined", while considering that countries remained "free to use any methods they consider appropriate in harvesting shrimp", the United States appeared to be confusing "measures" and "policies". The "measures" in this instance were discriminatory trade measures. The United States had not claimed that access for shrimp from non-certified countries would prevent it from attaching and enforcing bycatch harvesting conditions to shrimp of US origin, or to shrimp from countries with which it had reached agreement on bycatch harvesting conditions, for the purposes of achieving domestically or internationally agreed conservation policies. Nor had the United States claimed that non-certification would prevent it from enforcing any of its bilateral, regional or multilateral obligations under another treaty. As such, the purposes of the trade restrictions would appear to relate to US domestic consensus about trade related domestic conservation policies. The "necessity" to maintain trade measures for the stated purpose of ensuring that domestic non-trade practices were not "undermined" did not translate into a demonstration that the trade measures were "necessary" for the protection of animal life, or that they "related" to conservation of an exhaustible natural resource. Australia further argued that the United States did not demonstrate that its domestic sea turtle conservation measures, or that sea turtle conservation measures involving trade restrictions and agreed upon with other countries, could only be maintained by recourse to discriminatory trade measures against products of third country origin. It did not demonstrate that other GATT consistent measures were not reasonably available to it in order to maintain its own measures, or measures agreed in common with other countries, for the purposes of implementing unilateral or internationally agreed policies in regard to international sea turtle conservation. Indeed, alternatives were specifically identified in Section 609(a)(1) to (4).

4.15. Australia further argued that, in addition to failing to meet the requirements of Article XX(b) and (g), the application of the US measures constituted an "unjustifiable discrimination" and a "disguised restriction on international trade" inconsistent with the requirements of the chapeau of Article XX. The United States had failed to demonstrate the contrary. In particular, it did not supply evidence that it had adequately explored means of addressing its concerns about shrimp harvesting practices and turtle conservation in other countries - the concerns it had used to justify its discriminatory import embargo - through cooperation with the governments concerned. The United States had offered to certain countries to negotiate a multilateral sea turtle conservation agreement but this offer was conditioned on acceptance of the mandatory use of TEDs and therefore could not be regarded as an adequate exploration of the scope for international cooperation on the issues involved. Furthermore, the offer had been made after the imposition of the import ban and the initiation of WTO consultations. The United States sought to defend its measures as consistent with the chapeau of Article XX by stating that the chapeau did not include an international cooperation requirement. However, the United States failed to address the fact that it was difficult to see how a discriminatory trade ban that addressed transboundary and global conservation concerns could meet the requirements of the chapeau of Article XX when the United States had not adequately explored the scope for international cooperation. Accordingly, there must be a presumption that the US measures were being applied in a manner that involved "unjustifiable discrimination" and constituted a "disguised restriction on international trade", in line with the Appellate Body's findings in the Gasoline case. Also relevant to the current dispute was the observation by the Tuna I Panel over the failure to explore the scope for international cooperative arrangements to address conservation objectives "which would seem to be desirable in view of the fact that dolphins roam the waters of many states and the high seas".³⁸¹ In its own submission the United States clearly recognised and identified the transboundary and global aspects of turtle conservation but failed to demonstrate that it had sought to address these aspects in order to avoid discriminatory trade measures through properly exploring the scope for international cooperation.

4.16. Australia noted that this dispute did not concern the validity of the environmental objectives of the US to protect and conserve turtles, but the particular trade measures chosen in pursuit of these objectives and their consistency with its WTO obligations. As observed by the Appellate Body in the Gasoline case, the fact that the US measures were inconsistent with its WTO obligations did not mean that the ability of any WTO Member to take measures to protect the environment was at issue, as "that would be to ignore the fact that Article XX of the General Agreement contains provisions designed to permit important state interests - including the protection of human health, as well as the conservation of exhaustible natural resources - to find expression".³⁸² Furthermore, the preamble to the Marrakesh Agreement Establishing the World Trade Organization stated the desire of WTO Members to conduct their relations in the field of trade and economic endeavour in a way which allowed for the optimal use of the world's resources in accordance with the objective of sustainable development. WTO Members were giving practical effect to this desire through the Committee on Trade and Environment (CTE) in considering the issues raised by the relationship between trade and the environment and with the aim of making international trade and environmental policies mutually supportive.

To Continue With Chapter 4.17

³⁷⁰ Vienna Convention on the Law of Treaties, Article 31.1.

³⁷¹ Appellate Body Report on United States - Standards for Reformulated and Conventional Gasoline, adopted 20 May 1996, WT/DS2/9, p. 24.

³⁷² The United States noted that, even if the Panel were to find discrimination with respect to countries where the same conditions prevailed, such discrimination would be neither "arbitrary" nor "unjustifiable". Section 609 was applied in a manner based on specific and reasonable criteria tied to the goal of conserving sea turtles.

³⁷³ Panel Report on Uruguayan Recourse to Article XXIII, adopted 16 November 1962, BISD 11S/95, paragraph 15.

³⁷⁴ Panel Report on Japanese Measures on Imports of Leather, adopted 15/16 May 1984, BISD 31S/94, paragraphs 47-48, 53, 55- 56.

³⁷⁵ Ibid.

³⁷⁶ Ibid.

³⁷⁷ US Embargo on the Import of Wild-Caught Shrimp, Submission by Australia to the US Secretary of State in support of its request for certification under Section 609(b), April 1996.

³⁷⁸ Panel Report on United States - Restrictions on Imports of Tuna, not adopted, DS29/R, circulated on 10 June 1994, paragraph 5.8.

³⁷⁹ Ibid., paragraph 5.10.

³⁸⁰ Panel Report on United States - Restrictions on Imports of Tuna, not adopted, DS29/R, circulated on 10 June 1994, paragraphs 5.27 and 5.39.

³⁸¹ Panel Report on United States - Restrictions on Imports of Tuna, not adopted, BISD 39S/155, circulated on 3 September 1991, paragraph 5.28.

³⁸² Appellate Body Report on United States - Standards for Reformulated and Conventional Gasoline, adopted on 20 May 1996, WT/DS2/9, p. 30.