VII. FINDINGS

A. INTRODUCTION

7. 1 We note that the dispute arose from the following facts.⁶¹¹ Most sea turtles are distributed around the world, in sub-tropical or tropical areas. Sea turtles are affected by human activity. They have been exploited for their meat, shell and eggs but they are also affected by the pollution of the oceans and the destruction of their habitats. In addition, they are subject to incidental capture in fisheries. Presently, most populations of sea turtles are considered to be endangered or threatened. In this respect, all marine turtles are included in Appendix I to the 1973 Convention on International Trade in Endangered Species (hereafter "CITES")⁶¹² as species threatened with extinction.

7.2 Pursuant to the US Endangered Species Act of 1973 (hereafter "ESA"), all sea turtles that occur in US waters are listed as endangered or threatened species. Research programmes carried out by the United States have led to the conclusion that incidental capture and drowning of sea turtles by shrimp trawlers is a significant source of mortality for sea turtles. The United States National Marine Fisheries Service (hereafter "NMFS") has developed, within a programme aimed at reducing the mortality of sea turtles in shrimp trawls, turtle excluder devices (hereafter "TEDs").⁶¹³ In 1987, the United States issued regulations under the ESA whereby shrimp fishermen are required to use TEDs or tow time restrictions in specified areas where there is a significant mortality of sea turtles in shrimp trawls. Since December 1994, these regulations have eliminated the option for small trawl vessels to restrict tow times in lieu of using TEDs.

7.3 In 1989, the United States enacted Section 609 of Public Law 101-162 (hereafter "Section 609"). Section 609 calls upon the US Secretary of State, in consultation with the US Secretary of Commerce, inter alia to initiate negotiations for the development of bilateral or multilateral agreements for the protection and conservation of sea turtles, in particular with governments of countries engaged in commercial fishing operations likely to have a negative impact on sea turtles. Section 609 further provides that shrimp harvested with technology that may adversely affect certain sea turtles protected under US law may not be imported into the United States, unless the President annually certifies to the Congress that the harvesting country concerned has a regulatory programme governing the incidental taking of such sea turtles in the course of such harvesting that is comparable to that of the United States, that the average rate of that incidental taking by the vessels of the harvesting country is comparable to the average rate of incidental taking of sea turtles by United States vessels in the course of such harvesting, or that the fishing environment of the harvesting country does not pose a threat of incidental taking to sea turtles in the course of such harvesting.

7.4 The United States issued guidelines in 1991 and 1993 for the implementation of Section 609. Pursuant to these guidelines, Section 609 was applied only to countries of the Caribbean/Western Atlantic. In September 1996, the United States concluded the Inter-American Convention for the Protection and Conservation of Sea Turtles with a number of countries of that region. In December 1995, the US Court of International Trade (hereafter "CIT") found the 1991 and 1993 guidelines illegal insofar as they limited the geographical scope of Section 609 to shrimp harvested in the wider Caribbean/Western Atlantic area. The CIT directed the US Department of State to prohibit, no later than 1 May 1996, the importation of shrimp or products of shrimp wherever harvested in the wild with commercial fishing technology which may affect adversely those species of sea turtles the conservation of which is the subject of regulations of the Secretary of Commerce.

7.5 In April 1996, the Department of State published revised guidelines to comply with the CIT order of December 1995. The new guidelines extended the scope of Section 609 to shrimp harvested in all countries. The Department of State further determined that, as of 1 May 1996, all shipments of shrimp and shrimp products into the United States must be accompanied by a declaration attesting that the shrimp or shrimp product in question has been harvested "either under conditions that do not adversely affect sea turtles ... or in waters subject to the jurisdiction of a nation currently certified pursuant to Section 609." The 1996 guidelines define "shrimp or shrimp products harvested in conditions that do not affect sea turtles" to include: "(a) Shrimp harvested in an aquaculture facility ...; (b) Shrimp harvested by commercial shrimp trawl vessels using TEDs comparable in effectiveness to those required in the United States; (c) Shrimp harvested exclusively by means that do not involve the retrieval of fishing nets by mechanical devices or by vessels using gear that, in accordance with the US programme, would require TEDs; (d) Species of shrimp, such as the pandalid species, harvested in areas in which sea turtles do not occur". The 1996 guidelines provided that certification could be granted by 1 May 1996, and annually thereafter to harvesting countries other than those where turtles do not occur or that exclusively use means that do not pose a threat to sea turtles "only if the government of [each of those countries] has provided documentary evidence of the adoption of a regulatory program governing the incidental taking of sea turtles in the course of commercial shrimp trawl harvesting that is comparable to that of the United States and if the average take rate of that incidental taking by vessels of the harvesting nation is comparable to the average rate of incidental taking of sea turtles by United States vessels in the course of such harvesting." For the purpose of these certifications, a regulatory programme must include, inter alia, a requirement that all commercial shrimp trawl vessels operating in waters in which there is a likelihood of intercepting sea turtles use TEDs at all time. TEDs must be comparable in effectiveness to those used by the United States. Moreover, the average incidental take rate will be deemed comparable to that of the United States if the harvesting country requires the use of TEDs in a manner comparable to that of the US programme.

7.6 In October 1996, the CIT ruled that the embargo on shrimp and shrimp products enacted by Section 609 applies to "all shrimp and shrimp products harvested in the wild by citizens or vessels of nations which have not been certified." The CIT found that the 1996 guidelines are contrary to Section 609 when allowing, with a shrimp exporter declaration form, imports of shrimp from non-certified countries, if the shrimp was harvested with commercial fishing technology that did not adversely affect sea turtles. The CIT later clarified its decision in ruling that shrimp harvested by manual methods which do not harm sea turtles, by aquaculture and in cold water, could continue to be imported even from countries which have not been certified under Section 609.

B. RULINGS MADE BY THE PANEL IN THE COURSE OF THE PROCEEDINGS

7.7 In the course of the proceedings, we received two documents called amicus briefs and submitted by non-governmental organizations. These documents were also communicated by their authors to the parties to the dispute. In a letter dated 1 August 1997 and at the second substantive meeting of the Panel, India, Malaysia, Pakistan and Thailand requested us not to consider the content of these documents in our examination of the matter under dispute. At the second substantive meeting of the Panel, the United States, stressing that the Panel could seek information from any relevant source under Article 13 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (hereafter "DSU"), urged us to avail ourselves of any relevant information in the two documents, as well as in any other similar communications.

7.8 We had not requested such information as was contained in the above-mentioned documents. We note that, pursuant to Article 13 of the DSU, the initiative to seek information and to select the source of information rests with the Panel. In any other situations, only parties and third parties are allowed to submit information directly to the Panel. Accepting non-requested information from non-governmental sources would be, in our opinion, incompatible with the provisions of the DSU as currently applied. We therefore informed the parties that we did not intend to take these documents into consideration. We observed, moreover, that it was usual practice for parties to put forward whatever documents they considered relevant to support their case and that, if any party in the present dispute wanted to put forward these documents, or parts of them, as part of their own submissions to the Panel, they were free to do so. If this were the case, the other parties would have two weeks to respond to the additional material. We noted that the United States availed themselves of this opportunity by designating Section III of the document submitted by the Center for Marine Conservation and the Center for International Environmental Law as an annex to its second submission to the Panel.

7.9 None of the parties to the dispute requested the Panel to consult experts. However, we noted that parties had submitted a number of studies by experts and often quoted the same scientific documents to support opposite views. Under those circumstances, we decided, acting on our own initiative, to seek scientific and technical advice pursuant to paragraph 1 and paragraph 2, first sentence of Article 13 of the DSU.⁶¹⁴

7.10 Parties to the dispute were given time to comment in writing on the replies of the experts to the questions of the Panel. However, before and during the hearing of the experts, we recalled that parties should limit their intervention to questions and comments strictly related to the issues raised by the experts. Accordingly, we decided not to take into account in our findings any comment or question raised in relation with the consultation of the experts which would not be strictly related to the scientific issues under discussion with the experts.

C. VIOLATION OF ARTICLE XI:1 OF GATT 1994⁶¹⁵

7.11 We note that all four complainants⁶¹⁶ raise claims regarding the violation of Article XI GATT 1994. India, Pakistan and Thailand submit that the scope of Article XI:1, which provides for general elimination of quantitative restrictions, is comprehensive and applies to all measures instituted or maintained by a Member prohibiting or restricting the importation, exportation or sale for export of products other than measures that take the form of duties, taxes or other charges. Measures prohibited by Article XI:1 include outright quotas and quantitative restrictions made effective through import or export licences. The embargo applied by the United States on the basis of Article 609 constitutes a prohibition or restriction on the importation of shrimp or shrimp products from the complainants and is not in the nature of a "duty, tax, or other charges" within the meaning of Article XI:1. India, Pakistan and Thailand consider that the 1991 and 1994 reports on United States - Restrictions on Imports of Tuna⁶¹⁷ involve a measure virtually identical to the restriction on imports of shrimp and shrimp products at issue in this case. In those cases, the embargo was applied by the United States to imports of tuna from countries that had not implemented conservation programmes comparable to those of the United States to protect dolphins incidentally taken by commercial fishermen harvesting tuna. In both cases, the panels found that the restriction constituted a violation of Article XI.

7.12 Malaysia argues that the import prohibition imposed by the United States under Section 609 falls under Article XI as it bans import of shrimp or shrimp products from any country not meeting certain policy conditions, and are not duties, taxes or other charges. The findings of the Tuna I and Tuna II cases are equally applicable to the facts of this case. The US prohibition on imports of shrimp and shrimp products is therefore contrary to Article XI:1 and cannot be justified under Article XI:2, as this provision does not address the situation at issue.

7.13 The United States argues that since under Article XX nothing in GATT 1994 is to be construed to prevent the adoption or enforcement of the measures at issue, it need not address Article XI. The United States also considers that the complainants have the burden of establishing any alleged violation of GATT 1994. However, the United States does not dispute that, with respect to countries not certified under Section 609, Section 609 amounts to a restriction on the importation of shrimp within the meaning of Article XI:1 of GATT 1994.

7.14 The arguments put forward by the parties raise the general question of the burden of proof, in terms of who bears this burden and in terms of how much has to be proved in the circumstances of this case. Regarding who bears the burden of proof, we recall the well established general principle of law referred to by the Appellate Body in its report on United States - Measure Affecting Imports of Woven Wool Shirts and Blouses from India⁶¹⁸: "the burden of proof rests upon the party, whether complaining or defending, who asserts the affirmative of a particular claim or defence". We consequently consider that it is up to the complainants to demonstrate that the US measure at issue violates Article XI:1 of GATT 1994. The arguments of the parties also raise the question of when a panel should consider that a party has provided sufficient evidence in support of a particular claim or defence. We recall that the Appellate Body in the Wool Shirts case found that "precisely how much and precisely what kind of evidence will be required to establish [a presumption that a claim is valid] will necessarily vary ... from case to case".⁶¹⁹ We therefore have to assess the evidence before us in the light of the particular circumstances of this case. This implies that we may consider any type of evidence, and also that we may reach our conclusions regarding a particular claim on the basis of the level of evidence that we consider sufficient.

7.15 In this respect, we note that the United States, in reply to one of our questions, "does not dispute that with respect to countries not certified under Section 609, Section 609 amounts to a restriction on the importation of shrimp within the meaning of Article XI:1 of GATT 1994".⁶²⁰ This statement of the United States creates a particular situation where the defendant basically admits that a given measure amounts to a restriction prohibited by GATT 1994. It is usual legal practice for domestic and international tribunals, including GATT panels⁶²¹, to consider that, if a party admits a particular fact, the judge may be entitled to consider such fact as accurate.

7.16 Even if the above-mentioned US declaration does not amount to an admission of a violation of Article XI:1, we consider that the evidence made available to the Panel is sufficient to determine that the United States prohibition of imports of shrimp from non-certified Members violates Article XI:1. Article XI:1 reads in part as follows:

We note that Section 609(b)(1) provides that:

Thus, Section 609 expressly requires the imposition of an import ban on imports from non-certified countries. We further note that in its judgement of December 1995, the CIT directed the US Department of State to prohibit, no later that 1 May 1996, the importation of shrimp or products of shrimp wherever harvested in the wild with commercial fishing technology which may affect adversely those species of sea turtles the conservation of which is the subject of regulations of the Secretary of Commerce.⁶²² Furthermore, the CIT ruled that the US Administration has to apply the import ban, including to TED-caught shrimp, as long as the country concerned has not been certified. In other words, the United States bans imports of shrimp or shrimp products from any country not meeting certain policy conditions. We finally note that previous panels have considered similar measures restricting imports to be "prohibitions or restrictions" within the meaning of Article XI.⁶²³

7.17 Therefore, we find that the United States admits that, with respect to countries not certified under Section 609, the measures imposed in application of Section 609 amount to "prohibitions or restrictions" on the importation of shrimp within the meaning of Article XI:1 of GATT 1994. Even if one were to consider that the United States has not admitted that it imposes an import prohibition or restriction within the meaning of Article XI:1, we find that the wording of Section 609 and the interpretation made of it by the CIT are sufficient evidence that the United States imposes a "prohibition or restriction" within the meaning of Article XI:1. We therefore find that Section 609 violates Article XI:1 of GATT 1994.

D. VIOLATION OF ARTICLE XIII:1 AND OF ARTICLE I:1 OF GATT 1994⁶²⁴

7.18 India, Pakistan and Thailand claim that the import prohibition on shrimp and shrimp products from non-certified countries is inconsistent with the most-favoured-nation principle embodied in Article I:1 GATT 1994 because physically identical shrimp and shrimp products from different Members are treated differently by the United States upon importation. This differentiated treatment is based solely on the method of harvest and the conservation policies of the government under whose jurisdiction the shrimp is harvested. Further, even if one were to assume arguendo that the method of harvest does affect the nature of the shrimp, the embargo violates Article I:1 because, pursuant to the embargo, wild shrimp harvested by use of TEDs are forbidden entry into the United States if harvested by a national of a non-certified country, while shrimp harvested by the same method by a national of a certified country is permitted entry into the United States.

7.19 India, Pakistan and Thailand also claim that the embargo as applied is also inconsistent with Articles I:1 and XIII:1 of the GATT 1994 because initially affected countries were given a phase-in period of three years, while newly affected nations were not given a similar period of time. Malaysia further argues that, while newly affected nations generally received only a four month notice, Malaysia actually was given three months (i.e., until 1 April 1996) to adopt a programme complying with the US requirements. For Malaysia, this differential treatment is also discriminatory and inconsistent with Article XIII:1. According to India, Pakistan and Thailand, initially affected countries were given the opportunity to implement the required use of TEDs without substantially interrupting shrimp trade to the United States. Products from these countries have therefore been given an "advantage, favour, privilege or immunity" over like products originating in the territories of other Members, in violation of Article I:1. Likewise, importation of like products from initially affected countries was not similarly prohibited, in violation of Article XIII:1.

7.20 India, Pakistan and Thailand also argue that Section 609 is inconsistent with Article XIII:1 of GATT 1994 because it restricts the importation of shrimp and shrimp products from countries which have not been certified, while like products from other countries which have been certified can be imported freely into the United States. The United States denies entry of shrimp and shrimp products based on the method of harvest, even though it does not affect the nature of the product. Indeed, all foreign shrimp and shrimp products have the same physical characteristics, end-uses and tariff classifications and are perfectly substitutable. Thus, shrimp products which may be imported into the United States pursuant to Section 609 are like shrimp products from non-certified countries which are denied entry. The differential treatment of like products from certified and non-certified countries violates Article XIII:1. Even assuming that the method of harvest does affect the nature of the product, the embargo violates Article XIII because wild shrimp harvested by use of TEDs are forbidden entry into the United States if harvested by a national of a non-certified country, while shrimp harvested by use of TEDs by a national of a certified country are permitted entry into the United States.

7.21 The United States does not agree with the complainants' claims under Articles I and XIII, particularly since, in the US view, the US measure applies equally to all harvesting Members. The United States further argues that, if the Panel makes a finding with respect to Article XI, there will be no need to reach the claims under Articles I and XIII.

7.22 Given our conclusion in paragraph 7.17 above that Section 609 violates Article XI:1, we consider that it is not necessary for us to review the other claims of the complainants with respect to Articles I:1 and XIII:1. This is consistent with GATT⁶²⁵ and WTO⁶²⁶ panel practice and has been confirmed by the Appellate Body in its report in the Wool Shirts case, where the Appellate Body mentioned that "A panel need only address those claims which must be addressed in order to resolve the matter in issue in the dispute."⁶²⁷

7.23 Therefore we do not find it necessary to review the allegations of the complainants with respect to Articles I:1 and XIII:1. On the basis of our finding of violation of Article XI:1, we move to address the defence of the United States under Article XX.

E. ARTICLE XX OF GATT 1994⁶²⁸

1. Preliminary remarks

7.24 The United States claims that the measures at issue adopted pursuant to Section 609, which were found to be inconsistent with Articles XI:1 GATT 1994, are justified under Article XX(b) and (g) of GATT 1994. India, Pakistan and Thailand argue that Article XX(b) and (g) cannot be invoked to justify a measure which applies to animals not within the jurisdiction of the Member enacting the measure. Malaysia contends that, since Section 609 allows the United States to take actions unilaterally to conserve a shared natural resource, it is therefore in breach of the sovereignty principle under international law. The United States responds that Article XX(b) and (g) contain no jurisdictional limitations, nor limitations on the location of the animals or natural resources to be protected and conserved and that, under general principles of international law relating to sovereignty, States have the right to regulate imports within their jurisdiction.

7.25 The relevant parts of Article XX provide as follows:

Article XX

General exceptions

Subject to the requirement that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures:

...

(b) necessary to protect human, animal or plant life or health;

...

(g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption;

...

7.26 The arguments of the parties raise the general question of whether Article XX(b) and (g) apply at all when a Member has taken a measure conditioning access to its market for a given product on the adoption of certain conservation policies by the exporting Member(s). We note that Article XX can accommodate a broad range of measures aiming at the conservation and preservation of the environment.⁶²⁹ At the same time, by accepting the WTO Agreement, Members commit themselves to certain obligations which limit their right to adopt certain measures. We therefore consider it important to determine first whether the scope of Article XX encompasses measures whereby a Member conditions access to its market for a given product on the adoption of certain conservation policies by the exporting Member(s).

7.27 Pursuant to Article 3.2 of the DSU and in accordance with Appellate Body decisions⁶³⁰, we should, when trying to clarify the scope of Article XX, have recourse to customary rules of interpretation of public international law. We note that Article 31(1) of the Vienna Convention on the Law of Treaties (1969) (hereafter the "Vienna Convention") provides that:

Therefore, in order to determine the scope of Article XX, it is necessary to consider not only the terms in their ordinary meaning, but also their context and the object and purpose of GATT 1994 and the WTO Agreement itself.⁶³¹

7.28 Article XX contains an introductory provision, or chapeau, and a number of specific requirements contained in successive paragraphs. As mentioned by the Appellate Body in its report in the Gasoline case⁶³², in order for the justification of Article XX to be extended to a given measure, it must not only come under one or another of the particular exceptions - paragraphs (a) to (j) - listed under Article XX; it must also satisfy the requirements imposed by the opening clause of Article XX. We note that panels have in the past considered the specific paragraphs of Article XX before reviewing the applicability of the conditions contained in the chapeau. However, as the conditions contained in the introductory provision apply to any of the paragraphs of Article XX, it seems equally appropriate to analyse first the introductory provision of Article XX.

7.29 We also recall that the Appellate Body considered, in the Gasoline case⁶³³, that the chapeau by its express terms addresses, not so much the questioned measure or its specific contents, but rather the manner in which that measure is applied.⁶³⁴ The Appellate Body further underscored that "the purpose and object of the introductory clause of Article XX is generally the prevention of 'abuse of the exceptions of [what was later to become] Article [XX]'". Hence, the chapeau determines to a large extent the context of the specific exceptions contained in the paragraphs of Article XX. Therefore, we shall first determine whether the measure at issue satisfies the conditions contained in the chapeau. If we find this to be the case, we shall then examine whether the US measure is covered by the terms of Article XX(b) or (g).

7.30 Finally, we keep in mind the well-established practice according to which when an affirmative defence, such as Article XX, is invoked, the burden of proof should rest on the party asserting it.⁶³⁵ We therefore consider that the burden of proving that the measure at issue is justified under Article XX rests on the United States, as the party asserting this affirmative defence.

2. Chapeau of Article XX

7.31 India, Pakistan and Thailand argue that the embargo applied by the United States is implemented in a manner that constitutes a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail insofar as the newly affected nations, including India, Pakistan and Thailand, have been given substantially less notice than the other countries, whether the United States or initially affected countries, before being forced to comply with TEDs requirements. They maintain that there is not only a discrimination between exporting countries, but also between exporting countries and the United States. Furthermore, India, Pakistan and Thailand consider that, before requiring TEDs application from them, the United States should have demonstrated that the same conditions do not prevail between India, Pakistan or Thailand and the countries with no TEDs requirement. Moreover, for these complainants, the legislative history of Section 609, which includes discussions of this section in terms of the competitive position of the US shrimp industry, further supports the conclusion that the embargo is a disguised restriction on international trade. The effect of the restriction was not so much reduced importation as the additional cost on the foreign industry, making it less competitive, and the risk that the right to export might be revoked. Malaysia claims that disguised restrictions include disguised discrimination in international trade, and that it has been subject to such discrimination because it was given only a few months to comply with the US requirements as opposed to three years in the case of the initially affected countries.

7.32 The United States argues that the measures related to import of shrimp were carefully and justifiably tied to the particular conditions of each country exporting shrimp to the United States. All exporting nations with the same shrimp harvesting conditions are treated equally, with no discrimination. For the United States, the evidence is overwhelming that the conservation measures under Section 609 are not some artifice intended to protect the US fishing industry. The United States argued that the strong and growing international consensus regarding sea turtle conservation and the mandatory use of TEDs belies any claim that the US measures are some sort of disguised restriction on trade. In addition, the United States maintains that the extension of the application of Section 609 to other countries than the United States and the wider Caribbean/Western Atlantic area has not led to a decrease in the quantities imported nor to an increase in prices.

7.33 In order to apply Article XX in this case, we must, as mentioned in paragraph 7.27 above, interpret it in line with Article 31(1) of the Vienna Convention. More particularly, the chapeau of Article XX must be interpreted on the basis of the ordinary meaning of its terms, in their context and in the light of the object and purpose of GATT 1994 and the WTO Agreement. We consider first if the terms of the chapeau of Article XX explicitly address the issue of whether Article XX contains any limitation on a Member's use of measures conditioning market access to the adoption of certain conservation policies by the exporting Member. In this connection, we note that the chapeau prohibits such application of the measure at issue as would constitute "arbitrary or unjustifiable discrimination" between countries where the same conditions prevail. We note that the US measure at issue applies to all Members seeking to export to the United States wild shrimp retrieved mechanically from waters where sea turtles and shrimp occur concurrently. We consider those Members to be "countries where the same conditions prevail", within the meaning of Article XX. We further note that some of those countries have been "certified" and can export shrimp to the United States whereas some have not and are subject to an import ban. Consequently, discriminatory treatment is applied to shrimp from non-certified countries. Pursuant to the chapeau of Article XX, a measure may discriminate, but not in an "arbitrary" or unjustifiable" manner.

7.34 We therefore move to consider whether the US measure conditioning market access on the adoption of certain conservation policies by the exporting Member could be considered as "unjustifiable" discrimination. As was recalled by the Appellate Body in the Gasoline case, "the text of the chapeau of Article XX is not without ambiguity". The word "unjustifiable" has never actually been subject to any precise interpretation.⁶³⁶ The ordinary meaning of this term is susceptible to both narrow and broad interpretations. While the ordinary meaning of "unjustifiable" confirms that Article XX is to be applied within certain boundaries, it does not explicitly address the issue of whether Article XX should be interpreted to contain any limitation on a Member's use of measures conditioning market access on the adoption of certain conservation policies by the exporting Member. For that reason, it is essential that we interpret the term "unjustifiable" within its context and in the light of the object and purpose of the agreement to which it belongs.

7.35 Turning to an examination of the context of the terms and the object and purpose of the WTO Agreement, we note that the notion of "context", on the one hand, and of "object and purpose", on the other hand, are intimately linked. Indeed, Article 31(2) of the Vienna Convention provides that the context for the purpose of treaty interpretation comprises the text of the agreement, including its preamble and annexes. By the same token, determining the object and purpose of an agreement implies an examination of the text of the agreement and of its preamble. Consequently, we consider that the context of the chapeau of Article XX cannot be distinguished from that of Article XX as a whole. Furthermore, as the WTO Agreement is an integrated system including GATT 1994⁶³⁷, we shall consider as the context of the chapeau and of Article XX as a whole not only the other relevant provisions of GATT 1994 together with its preamble and annexes, but also the WTO Agreement, including its preamble and its other annexes. For the same reasons, the object and purpose to be considered is not only that of GATT 1994, but that of the WTO Agreement as a whole.

7.36 GATT panels had the occasion to address the context and the object and purpose of Article XX. The 1989 panel on United States - Section 337 of the Tariff Act of 1930 considered that:

Referring, inter alia, to the above-mentioned report, the panel in the Tuna I case found that:

To Continue With Chapter 7.37

⁶¹¹ For a more detailed presentation of the factual aspects of this case, see Section II of this Report.

⁶¹² Done at Washington, on 3 March 1973, 993 UNTS 243, 12 ILM 1085 (1973), entered into force on 1 July 1975.

⁶¹³ A TED is a grid trapdoor installed inside a trawling net that is designed to allow shrimp to pass to the back of the net while directing sea turtles and other unintentionally caught large objects out of the net.

⁶¹⁴ For a detailed account of the Panel's consultation with scientific experts, see Section V of this Report.

⁶¹⁵ For a more detailed presentation of the main arguments of the parties, see Section III of this Report.

⁶¹⁶ India, Pakistan, Malaysia and Thailand are hereafter referred to as the "complainants".

⁶¹⁷ Panel Report on United States - Restrictions on Imports of Tuna, 3 September 1991, DS21/R, not adopted (hereafter "Tuna I"), and Panel Report on United States - Restrictions on Imports of Tuna, 16 June 1994, DS29/R, not adopted (hereafter "Tuna II").

⁶¹⁸ Adopted on 23 May 1997, WT/DS33/AB/R (hereafter "Wool Shirts"), p. 14.

⁶¹⁹ Op. Cit., p. 14.

⁶²⁰ See para. 3.143 of this Report.

⁶²¹ See Panel Report on EEC - Programme of Minimum Import Prices, Licences and Surety Deposits for Certain Processed Fruits and Vegetables, adopted on 18 October 1978, BISD 25S/68, where the panel, at para. 4.9, inter alia "noted the assertion by the representative of the Community that this system was a system which fell within the purview of Article XI and XI alone ... Having noted the foregoing, the Panel considered that the minimum import price system, as enforced by the additional security, was a restriction 'other than duties, taxes or other charges' within the meaning of Article XI:1". In EEC - Quantitative Restrictions against Imports of Certain Products from Hong Kong, adopted on 12 July 1983, BISD 30S/129, the panel noted, in para. 31, that the EC itself referred to the products concerned as subject to quantitative restrictions. The panel further noted that "no GATT justification had been advanced for the quantitative restrictions referred to in paragraph 31 above" and concluded that "the relevant provisions of Article XI were not complied with".

⁶²² United States Court of International Trade: Earth Island Institute v. Christopher, ruling of 29 December 1995 (913 F. Supp. 559).

⁶²³ See Panel Report in the Tuna I case, Op. Cit., para. 5.17-5.18, and Panel Report in the Tuna II case, Op. Cit., para. 5.10. Speaking of the relevance for panels of previous reports, the Appellate Body has stated, with respect to adopted panel reports: "Adopted panel reports are an important part of the GATT acquis. They are often considered by subsequent panels. They create legitimate expectations among WTO Members, and, therefore, should be taken into account where they are relevant to any dispute". (Appellate Body Report on Japan - Taxes on Alcoholic Beverages, adopted on 1 November 1996, WT/DS8, DS10, DS11/AB/R, p. 14) Regarding unadopted panel reports, the Appellate Body agreed with the panel in the same case that: "a panel could nevertheless find useful guidance in the reasoning of an unadopted panel report that it considered to be relevant". (Appellate Body Report on Japan - Taxes on Alcoholic Beverages, Op. Cit., p. 15)

⁶²⁴ For a more detailed presentation of the main arguments of the parties, see Section III of this Report.

⁶²⁵ See, e.g., Panel report on Canada - Administration of the Foreign Investment Review Act, adopted on 7 February 1984, BISD 30S/140, para. 5.16.

⁶²⁶ See, e.g., Panel Report on Brazil - Measures Affecting Desiccated Coconut, adopted on 20 March 1997, WT/DS22/R, para. 293.

⁶²⁷ Op. Cit., p. 19.

⁶²⁸ For a more detailed presentation of the main arguments of the parties, see Section III of this Report.

⁶²⁹ See, e.g., Appellate Body report on United States - Standards for Reformulated and Conventional Gasoline (hereafter "Gasoline"), WT/DS2/AB/R, adopted on 20 May 1996, which provides, at p. 30: "WTO Members have a large measure of autonomy to determine their own policies on the environment (including its relationship with trade), their environmental objectives and the environmental legislation they enact and implement. So far as concerns the WTO, that autonomy is circumscribed only by the need to respect the requirements of the General Agreement and the other covered agreements".

⁶³⁰ See, e.g., Appellate Body Report in the Gasoline case, Op. Cit., p. 17-18.

⁶³¹ See Appellate Body report on Brazil - Measures Affecting Desiccated Coconut, adopted on 20 March 1997, WT/DS22/AB/R, p. 15. Where appropriate, we must also consider GATT and WTO panel and Appellate Body reports. See footnote 623 above.

⁶³² Op. Cit., p. 22.

⁶³³ Ibid., p. 22.

⁶³⁴ See also the panel report on United States - Imports of Certain Automotive Spring Assemblies, adopted on 26 May 1983, BISD 30S/107, which specified, at para. 56, that "the preamble of Article XX made it clear that it was the application of the measure and not the measure itself that needed to be examined."

⁶³⁵ See Appellate Body Report in the Wool Shirts case, Op. Cit., p. 16, and the GATT cases cited in footnote 23 to that report. In that case, the Appellate Body mentioned that "Articles XX and XI:2(c)(i) are limited exceptions from obligations under certain other provisions of the GATT 1994, not positive rules establishing obligations in themselves. They are in the nature of affirmative defences. It is only reasonable that the burden of establishing such a defence should rest on the party asserting it". Therefore, we shall apply this principle when we review the US arguments under Article XX.

⁶³⁶ Previous panels considered situations of discrimination related to import prohibitions. The Panel Report on United States - Prohibition on Imports of Tuna and Tuna Products from Canada, adopted on 22 February 1982, BISD 29S/91, considered, at para. 4.8, that the measure had been taken exclusively against imports from Canada, but that similar actions had been taken against imports from other countries, and then for similar reasons. The panel concluded that if Canada had been discriminated against, it might not necessarily have been in an arbitrary or unjustifiable manner.

⁶³⁷ See Appellate Body Report on Brazil - Measures Affecting Desiccated Coconut, Op. Cit., pp. 11-12.

⁶³⁸ Adopted on 7 November 1989, BISD 36S/345, para. 5.9 (emphasis added).

⁶³⁹ Op. Cit., para. 5.22 (emphasis added, footnote omitted). See, also, Panel Report on Canada - Administration of the Foreign Investment Review Act, Op. Cit., para. 5.20.