7.38 The Appellate Body has also discussed the relationship of Article XX(g) to GATT as a whole, in terms that would apply to the relationship to GATT of Article XX taken in its entirety:

7.39 While the Appellate Body has noted that the rights that Members do have under Article XX must, of course, be respected, it has also noted the existence of limits and conditions on the scope of Article XX. It has expressed those limits and conditions as follows in respect of its analysis of the object and purpose of the chapeau of Article XX:

7.40 We note that the chapeau to Article XX provides that "nothing in [GATT 1994] shall be construed to prevent the adoption or enforcement ... of measures" otherwise in conformity with Article XX conditions. However, we consider that this wording is not affected by the findings quoted above. As the Appellate Body also put it, Article XX "needs to be read in its context and in such a manner as to give effect to the purposes and objects of the General Agreement" and "the purpose and object of the introductory clauses of Article XX is generally the prevention of 'abuse of the exceptions of ... [Article XX]'."⁶⁴³ We deduce from this that, when invoking Article XX, a Member invokes the right to derogate to certain specific substantive provisions of GATT 1994 but that, in doing so, it must not frustrate or defeat the purposes and objects of the General Agreement and the WTO Agreement or its legal obligations under the substantive rules of GATT by abusing the exception contained in Article XX.

7.41 We consider this finding of the Appellate Body to be an application of the international law principle according to which international agreements must be applied in good faith, in light of the pacta sunt servanda principle.⁶⁴⁴ The concept of good faith is explained in Article 18 of the Vienna Convention which states that "A State is obliged to refrain from acts which would defeat the object and purpose of a treaty".⁶⁴⁵

7.42 We consequently turn to the consideration of the object and purpose of the WTO Agreement, of which GATT 1994 and Article XX thereof are an integral part. We note that the preamble of an agreement may assist in determining its object and purpose.⁶⁴⁶ On the one hand, the first paragraph of the Preamble of the WTO Agreement acknowledges that the optimal use of the world's resources must be pursued "in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means of doing so in a manner consistent with [Members'] respective needs and concerns at different levels of economic development". On the other hand, the second paragraph of the Preamble of GATT and the third paragraph of the WTO Preamble refer to "entering into reciprocal and mutually advantageous arrangements directed to the substantial reduction of tariffs and other barriers to trade and to the elimination of discriminatory treatment" in international trade relations. While the WTO Preamble confirms that environmental considerations are important for the interpretation of the WTO Agreement, the central focus of that agreement remains the promotion of economic development through trade; and the provisions of GATT are essentially turned toward liberalization of access to markets on a nondiscriminatory basis.

7.43 We also note that, by its very nature, the WTO Agreement favours a multilateral approach to trade issues. The Preamble to the WTO Agreement provides that Members are "resolved ... to develop an integrated, more viable and durable multilateral trading system [and] ... determined to preserve the basic principles and to further the objectives underlying this multilateral trading system" (emphasis added). Article III:2 of the WTO Agreement also mentions that:

This approach is also expressed in Article 23.1 of the DSU which stresses the primacy of the multilateral system and rejects unilateralism as a substitute for the procedures foreseen in that agreement.

7.44 Therefore, we are of the opinion that the chapeau Article XX, interpreted within its context and in the light of the object and purpose of GATT and of the WTO Agreement, only allows Members to derogate from GATT provisions so long as, in doing so, they do not undermine the WTO multilateral trading system, thus also abusing the exceptions contained in Article XX. Such undermining and abuse would occur when a Member jeopardizes the operation of the WTO Agreement in such a way that guaranteed market access and nondiscriminatory treatment within a multilateral framework would no longer be possible. As was recalled by previous panels, GATT rules "are not only to protect current trade but also to create the predictability needed to plan future trade".⁶⁴⁸ The protection of expectations of Members as to the competitive relationship between their products and the products of other Members is therefore an important principle to be taken into account by panels when reviewing a particular measure. We are of the view that a type of measure adopted by a Member which, on its own, may appear to have a relatively minor impact on the multilateral trading system, may nonetheless raise a serious threat to that system if similar measures are adopted by the same or other Members. Thus, by allowing such type of measures even though their individual impact may not appear to be such as to threaten the multilateral trading system, one would affect the security and predictability of the multilateral trading system. We consequently find that when considering a measure under Article XX, we must determine not only whether the measure on its own undermines the WTO multilateral trading system, but also whether such type of measure, if it were to be adopted by other Members, would threaten the security and predictability of the multilateral trading system.

7.45 In our view, if an interpretation of the chapeau of Article XX were to be followed which would allow a Member to adopt measures conditioning access to its market for a given product upon the adoption by the exporting Members of certain policies, including conservation policies, GATT 1994 and the WTO Agreement could no longer serve as a multilateral framework for trade among Members as security and predictability of trade relations under those agreements would be threatened. This follows because, if one WTO Member were allowed to adopt such measures, then other Members would also have the right to adopt similar measures on the same subject but with differing, or even conflicting, requirements. If that happened, it would be impossible for exporting Members to comply at the same time with multiple conflicting policy requirements. Indeed, as each of these requirements would necessitate the adoption of a policy applicable not only to export production (such as specific standards applicable only to goods exported to the country requiring them) but also to domestic production, it would be impossible for a country to adopt one of those policies without running the risk of breaching other Members' conflicting policy requirements for the same product and being refused access to these other markets. We note that, in the present case, there would not even be the possibility of adapting one's export production to the respective requirements of the different Members. Market access for goods could become subject to an increasing number of conflicting policy requirements for the same product and this would rapidly lead to the end of the WTO multilateral trading system.⁶⁴⁹

7.46 We find support for our reasoning in the Tuna II case⁶⁵⁰ where the panel considered a similar issue and found as follows:

The principle underlying our interpretation of Article XX of GATT 1994 was apparently also at the origin of the findings of the 1952 panel on Belgian Family Allowances. This panel addressed a charge imposed by Belgium on imported products purchased by public bodies when these goods originated in a country whose system of family allowances did not meet specific requirements. In that context, the panel considered that "the Belgian legislation on family allowance was not only inconsistent with the provisions of Article I ... , but was based on a concept which was difficult to reconcile with the spirit of the General Agreement".⁶⁵³

7.47 In light of this analysis of the terms and context of the chapeau of Article XX in the light of the object and purpose of the WTO Agreement, we turn to a consideration of whether the US measure challenged in this case falls within the scope of Article XX.

7.48 The United States argues that the intent of Section 609 is to protect and conserve the life and health of sea turtles by requiring that shrimp imported into the United States has not been harvested in a manner that will harm sea turtles. As a result of judgements of the US Court of International Trade (hereafter "CIT"), the US Administration currently has to apply the import ban, including on TED-caught shrimp, as long as the country concerned has not been certified.⁶⁵⁴ In addition, certification is only granted if comprehensive requirements regarding use of TEDs by fishing vessels are applied by the exporting country concerned, or if the shrimp trawling operations of the exporting country take place exclusively in waters in which sea turtles do not occur. Consequently, Section 609, as applied, is a measure⁶⁵⁵ conditioning access to the US market for a given product on the adoption by exporting Members of conservation policies that the United States considers to be comparable to its own in terms of regulatory programmes and incidental taking.

7.49 Accordingly, it appears to us that, in light of the context of the term "unjustifiable" and the object and purpose of the WTO Agreement,⁶⁵⁶ the US measure at issue constitutes unjustifiable discrimination between countries where the same conditions prevail and thus is not within the scope of measures permitted under Article XX. However, before making a definitive finding on this issue, we must consider several arguments put forward by the United States that relate generally to our analysis of Article XX.

7.50 The United States argues that the Panel should consider the many examples of import bans under various international agreements that show that Members may take actions to protect animals, whether they are located within or outside their jurisdiction. We are of the view that these treaties show that environmental protection through international agreement - as opposed to unilateral measures -have for a long time been a recognized course of action for environmental protection.⁶⁵⁷ We note that this US argument addresses the issue of a potential jurisdictional scope of Article XX. However, we consider that this argument bears no direct relation to our finding, which rather addresses the inclusion of certain unilateral measures within the scope ratione materiae of Article XX. In addition, in the present case, we are not dealing with measures taken by the United States in application of an agreement to which it is party, as the United States does not claim that it is allowed or required by any international agreement (other than GATT 1994) to impose an import ban on shrimp in order to protect sea turtles. Rather, we are limiting our finding to measures - taken independently of any such international obligation - conditioning access to the US market for a given product on the adoption by the exporting Member of certain conservation policies. In this regard, we note that banning the importation of a particular product does not per se imply that a change in policy is required from the country whose exports are subject to the import prohibition. For instance, a Member may ban a product on the ground that it is dangerous, and accept a similar product that is safe. This is clearly different from adopting a policy pursuant to which only countries that adopt measures restricting all of their production to products considered safe by a particular Member may export to the market of that Member. We note that a judgement of the CIT interpreting Section 609⁶⁵⁸ ruled that the US Administration has to apply the import ban, including on TED-caught shrimp, as long as the country concerned has not been certified. Currently, certification is only granted if comprehensive requirements regarding use of TEDs by fishing vessels are applied by the exporting country concerned.

7.51 The United States further argues that the complainants confuse the difference between extrajurisdictional application of a country's law and the application by a country of its law, within its jurisdiction, in order to protect resources located outside its jurisdiction. However, we note that we are not basing our finding on an extra-jurisdictional application of US law. Many domestic governmental measures can have an effect outside the jurisdiction of the government which takes them. What we found above was that a measure cannot be considered as falling within the scope of Article XX if it operates so as to affect other governments' policies in a way that threatens the multilateral trading system, as described in paragraph 7.45 above. For instance, a US requirement, that US norms regarding the characteristics of a given product be met for that product to be allowed on the US market, would not constitute such a threat. Such types of measures are contemplated by the WTO Agreement on Technical Barriers to Trade and the Agreement on Sanitary and Phytosanitary Measures. However, requiring that other Members adopt policies comparable to the US policy for their domestic markets and all other markets represents a threat to the WTO multilateral trading system. As affirmed by the Appellate Body in its report in the Gasoline case, "Members have a large measure of autonomy to determine their own policies on the environment ..., their environmental objectives and the environmental legislation they enact and implement"⁶⁵⁹, circumscribed only, so far as concerns the WTO, by the need to respect the requirements of the General Agreement and the other covered agreements. Therefore, a Member's measure which conditions access to its market on the adoption by the exporting Member of certain conservation policies is a denial of such autonomy.

7.52 The United States argues that the right of WTO Members to take measures under Article XX to conserve and protect natural resources is reaffirmed and reinforced by the Preamble to the WTO Agreement. Although we do not disagree in general with this statement, we are not persuaded that this argument is a reason to change our finding. Whilst the central focus of that Agreement is to promote economic development through trade, we note that the Preamble acknowledges that the optimal use of the world's resources must be pursued "in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means of doing so in a manner consistent with [Members'] respective needs and concerns at different levels of economic development". Thus the Preamble endorses the fact that environmental policies must be designed taking into account the situation of each Member, both in terms of its actual needs and in terms of its economic means. Moreover, the record before us and, in particular, the answers of the experts to the questions of the Panel, strongly suggest that the environmental issues at stake in this case should be evaluated to a large degree in light of local and regional conditions. They also suggest that conservation measures should be adapted, inter alia, to the environmental, social and economic conditions prevailing where they are to be applied. We further note that the 1992 Rio Declaration on Environment and Development⁶⁶⁰ recognises the right of States to design their own environmental policies on the basis of their particular environmental and developmental situations and responsibilities.⁶⁶¹ It also stresses the need for international cooperation⁶⁶² and for avoiding unilateral measures. In this light, we consider that the Preamble does not justify interpreting Article XX to allow a Member to condition access to its market for a given product on the adoption of certain conservation policies by exporting Members in order to bring them into line with those of the importing Member. On the contrary, the diversity of the environmental and development situations underlined by the Preamble can best be taken into account through international cooperation. The Preamble also implies that attempts to generalize standards of environmental protection would require multilateral discussion, especially when, as here, developing countries are involved. Therefore, we do not consider that the wording of the Preamble referred to by the United States should lead us to a different conclusion than the one reached above.

7.53 The United States further claims that sea turtles are a shared global resource and that, therefore, it has an interest and a right to impose the measures at issue. Firstly, the United States argues that sea turtles are a shared global resource because they are highly migratory creatures which travel through large expanses of sea, within the range of thousands of kilometres, from the jurisdiction of one Member to those of other Members. Secondly, the United States also argues that, even if sea turtles were not migratory at all, they may still represent a shared global resource in terms of biological diversity in the protection of which the United States may have a legitimate interest. Information brought to the attention of the Panel, including documented statements from the experts, tends to confirm the fact that sea turtles, in certain circumstances of their lives, migrate through the waters of several countries and the high sea. This said, even assuming that sea turtles were a shared global resource, we consider that the notion of "shared" resource implies a common interest in the resource concerned. If such a common interest exists, it would be better addressed through the negotiation of international agreements than by measures taken by one Member conditioning access to its market to the adoption by other Members of certain conservation policies. We note in this respect that Article 5 of the 1992 Convention on Biological Diversity provides that:

We consider that this provision is evidence that "matters of mutual interest" have normally to be addressed primarily through international cooperation.⁶⁶⁴ Therefore, we find that if, as alleged by the United States, sea turtles are shared global resources, that would not call for a change in our finding. Instead, it suggests that the United States should have entered into international cooperation with the aim of developing internationally accepted conservation methods, including with the complainants.

7.54 In addition, the United States argues that nothing in Article XX requires a Member to seek negotiation of an international agreement instead of, or before adopting unilateral measures. In any event, the United States claims it offered to negotiate but the complainants did not reply.

7.55 Regarding whether there is an obligation for a Member to negotiate, we recall our finding in paragraph 7.45 above that the WTO multilateral trading system would be undermined if Members were allowed to adopt measures making access of other Members to their market conditional upon the adoption by the exporting Members of certain conservation policies because it would not be possible for Members to meet conflicting requirements of such a nature. This is clearly a situation where elaboration of international standards would be desirable. We note in that respect that the WTO Agreements on Technical Barriers to Trade and on Sanitary and Phytosanitary Measures promote the use of international standards.⁶⁶⁵ We also recall our consideration in paragraph 7.52. The nature of the measures that the United States was seeking to obtain from the exporting countries concerned and the principles recalled in several international environmental agreements⁶⁶⁶ imply that a country seeking to promote environmental concerns of such a nature should engage into international negotiations. The negotiation of a multilateral agreement or action under multilaterally defined criteria is clearly a possible way to avoid threatening the multilateral trading system.

7.56 We note that Section 609 contains provisions calling upon the US Secretary of State to initiate negotiations as soon as possible for the development of bilateral or multilateral agreements for the protection and conservation of the species of sea turtles covered by that Section.⁶⁶⁷ The judgement of the CIT which was handed over on 29 December 1995 required the US Administration to apply Section 609 on a world-wide basis (and no longer only to the Wider Caribbean/Western Atlantic region) by no later than 1 May 1996. This implied that, unless the exporting countries decided to use TEDs in their shrimp trawling activities - either of their own initiative or through negotiations - the import ban on wild shrimp would be applied to them as of that date. The United States told us of its efforts to have the deadline set in the CIT judgement postponed. However, we have no evidence that the United States actually undertook negotiations on an agreement on sea turtle conservation techniques which would have included the complainants before the imposition of the import ban as a result of the CIT judgement. From the replies of the parties to our question on this subject, in particular that of the United States, we understand that the United States did not propose the negotiation of an agreement to any of the complainants until after the conclusion of negotiations on the Inter-American Convention for the Protection and Conservation of Sea Turtles, in September 1996, i.e. well after the deadline for the imposition of the import ban of 1 May 1996. Even then, it seems that the efforts made merely consisted of an exchange of documents. We therefore conclude that, in spite of the possibility offered by its legislation, the United States did not enter into negotiations before it imposed the import ban.⁶⁶⁸ As we consider that the measures sought by the United States were of the type that would normally require international cooperation, we do not find it necessary to examine whether parties entered into negotiations in good faith and whether the United States, absent any result, would have been entitled to adopt unilateral measures.

7.57 Finally, we note that the United States argues that the use of TEDs has become a recognized multilateral environmental standard. In support of this, the United States firstly contends that the international community has long recognized the need to protect endangered species such as sea turtles. Secondly, several international conventions require parties to adopt conservation policies and urge them to ensure, through proper conservation measures, the maintenance of living resources, including non-target species caught in fishing operations. In support of these statements, the United States refers to the 1982 United Nations Convention on the Law of the Seas⁶⁶⁹ and to paragraph 17.46(c) of the 1992 Agenda 21.⁶⁷⁰ Thirdly, the United States claims that, either as a result of the Inter-American Convention on the Protection and Conservation of Sea Turtles or of their own initiative, 19 countries currently require TEDs on shrimp trawl vessels subject to their jurisdiction.

7.58 Moving to examine whether international obligations exist with regard to the protection of sea turtles, we first note that both the United States and the complainants have elaborated at length on the policies they have developed to protect sea turtles. Both the United States and the complainants have referred to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). Parties to the dispute are all parties to CITES and the turtles species covered by the US measures at issue are all listed in Appendix I (Species threatened with extinction). The endangered nature of the species of sea turtles mentioned in Annex I as well as the need to protect them are consequently not contested by the parties to the dispute. However, CITES is about trade in endangered species and the subject of the US import prohibition (shrimp) is not the endangered species whose protection is sought through the import ban. We also note that the United States has mentioned that CITES neither authorizes nor prohibits the sea turtles conservation measures which are at issue in this dispute.⁶⁷¹ Therefore, we consider that CITES, even though its object is to contribute to the protection of certain species, does not impose on its members specific methods of conservation such as TEDs.

7.59 We also note that the development of the use of TEDs is the result of regional agreements or voluntary individual practices of States. In our opinion, the existence of regional agreements and individual practices may not as such suffice to reach the conclusion that the use of TEDs has become a recognized multilateral environmental standard applicable to the complainants. We derive from the submissions of the United States that the application of TEDs based on a convention is only regional. Moreover, if the provisions of the multilateral agreements referred to by the United States (the 1982 United Nations Convention on the Law of the Seas and the 1992 Agenda 21) effectively address the objective of limiting by-catches of non-target species in trawling operations, they do not require the application of specific methods nor, a fortiori, the use of TEDs.⁶⁷² Finally, even if a number of countries individually require TEDs on their shrimp trawlers, the fact that the complainants and third parties have objected to their use makes it difficult to conclude that the mandatory use of TEDs has been customarily accepted as a multilateral environmental standard applicable to the complainants.⁶⁷³

7.60 In conclusion, we do not consider that any of the arguments raised by the United States would justify a finding different from that reached in paragraph 7.49 above. We consider that our findings do not question the legitimacy of environmental policies, including those promoted through multilateral conventions.⁶⁷⁴ We consider our findings to be in line with the principles embodied in many international agreements pursuant to which international cooperation is to be sought before having recourse to unilateral measures. Furthermore, the risk of a multiplicity of conflicting requirements clearly is reduced when requirements are decided in multilateral fora. Moreover, we do not suggest that import markets must exist as an incentive for the destruction of natural resources. Rather, we address a particular situation where a Member has taken unilateral measures which, by their nature, could put the multilateral trading system at risk.

7.61 In reaching our conclusions, we based ourselves on the current status of the WTO rules and of international law. As far as the WTO Agreement is concerned, we considered that certain unilateral measures, insofar as they could jeopardize the multilateral trading system, could not be covered by Article XX. Our findings with respect to international norms confirm our reasoning regarding the WTO Agreement and GATT. General international law and international environmental law clearly favour the use of negotiated instruments rather than unilateral measures when addressing transboundary or global environmental problems, particularly when developing countries are concerned. Hence a negotiated solution is clearly to be preferred, both from a WTO and an international environmental law perspective. However, our findings regarding Article XX do not imply that recourse to unilateral measures is always excluded, particularly after serious attempts have been made to negotiate; nor do they imply that, in any given case, they would be permitted. Nevertheless, in the present case, even though the situation of turtles is a serious one, we consider that the United States adopted measures which, irrespective of their environmental purpose, were clearly a threat to the multilateral trading system and were applied without any serious attempt to reach, beforehand, a negotiated solution.

7.62 We therefore find that the US measure at issue is not within the scope of measures permitted under the chapeau of Article XX.

3. Article XX(b) and (g)

7.63 In line with our approach described in para. 7.29 above, we do not find it necessary to examine whether the US measure is covered by the terms of Article XX(b) or (g).

F. ARTICLE XXIII:1(a) OF GATT 1994

7.64 We note that India, Pakistan and Thailand claim that the measure at issue represents a clear infringement of Articles I, XI and XIII of GATT 1994 and that it is 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 GATT ... the action would, prima facie, constitute a nullification or impairment ..." within the meaning of Article XXIII of GATT.⁶⁷⁵

7.65 We have found that the US measure at issue violates Article XI and is not justified under Article XX. We therefore conclude that there is a presumption of nullification or impairment within the meaning of Article 3.8 of the DSU, and that it is for the United States to rebut it. We do not consider that the United States has succeeded in rebutting the presumption that its breach of GATT has nullified or impaired benefits accruing to the complainants under GATT 1994.

VIII. CONCLUSIONS

8. 1 In the light of the findings above, we conclude that the import ban on shrimp and shrimp products as applied by the United States on the basis of Section 609 of Public Law 101-162 is not consistent with Article XI:1 of GATT 1994, and cannot be justified under Article XX of GATT 1994.

8.2 The Panel recommends that the Dispute Settlement Body request the United States to bring this measure into conformity with its obligations under the WTO Agreement.

IX. CONCLUDING REMARKS

9.1 We note that the issue in dispute was not the urgency of protection of sea turtles. The matter we have been asked to review is Section 609 as interpreted by the CIT and as applied by the United States on the date this Panel was established. It was not our task to review generally the desirability or necessity of the environmental objectives of the US policy on sea turtle conservation. In our opinion, Members are free to set their own environmental objectives. However, they are bound to implement these objectives in such a way that is consistent with their WTO obligations, not depriving the WTO Agreement of its object and purpose. We recall the statement contained in the 1996 report of the Committee on Trade and Environment for the Singapore Ministerial Conference to the effect that there should not be nor need be any policy contradiction between upholding and safeguarding an open, equitable and non-discriminatory multilateral trading system on the one hand and acting for the protection of the environment on the other.⁶⁷⁶ We also note that we are bound to make findings on the basis of the existing norms, without prejudice to any potential developments in the relevant fora. In our view, and based on the information provided by the experts, the protection of sea turtles throughout their life stages is important and TEDs are one of the recommended means of protection within an integrated conservation strategy. We consider that the best way for the parties to this dispute to contribute effectively to the protection of sea turtles in a manner consistent with WTO objectives, including sustainable development⁶⁷⁷, would be to reach cooperative agreements on integrated conservation strategies, covering, inter alia, the design, implementation and use of TEDs while taking into account the specific conditions in the different geographical areas concerned.

To Continue With Annex I

⁶⁴⁰ Op. Cit., p. 16.

⁶⁴¹ Appellate Body Report in the Gasoline case, Op. Cit., p. 18 (emphasis added).

⁶⁴² Ibid., p. 22.

⁶⁴³ Ibid., referring to EPTC/C.11/50, p. 7; quoted in GATT, Analytical Index: Guide to GATT Law and Practice, Updated 6th Edition (1995), Volume I, p. 564.

⁶⁴⁴ Good faith in the application of treaties is generally considered as a fundamental principle of treaty law. See Article 26 (Pacta Sunt Servanda) of the Vienna Convention, which provides that "Every treaty in force is binding upon the parties to it and must be performed by them in good faith." See judgement of the International Court of Justice of 27 August 1952 in the Case Concerning Rights of Nationals of the United States of America in Morocco (France v. United States), ICJ Report 1952, p. 176, at p. 212, where the Court stated that "The power of making the valuation [a power granted by the 1906 Act of Algesiras] rests with the customs authorities, but it is a power which must be exercised reasonably and in good faith" (emphasis added).

⁶⁴⁵ This rule, which applies to the period between the moment when a State has expressed its consent to be bound by a treaty and its entry into force, nevertheless seems to express a generally applicable principle. See Patrick Daillier & Alain Pellet, Droit International Public (1994), p. 216.

⁶⁴⁶ See, e.g., Ian Sinclair, The Vienna Convention on the Law of Treaties, 2nd edition (1984), p. 130.

⁶⁴⁷ The emphasis on multilateralism is also found in the General Agreement on Trade in Services, where the second paragraph of its Preamble states that Members wish to "establish a multilateral framework of principles and rules for trade in services ... " (emphasis added). Similarly, the Preamble to the Agreement on Trade-Related Aspects of Intellectual Property Rights stresses the need for a multilateral approach (TRIPS Agreement, Preamble, paras. 3 and 7). See also Marrakesh Declaration, 15 April 1994, para. 2.

⁶⁴⁸ Panel Report on United States - Taxes on Petroleum and Certain Imported Substances, adopted on 17 June 1987, BISD 34S/136, para. 5.2.2.

⁶⁴⁹ We note that the United States referred to Article XX(e) as evidence that GATT refutes any argument that trade measures generally should not have effects on the internal affairs of exporting countries. We note however that this provision does not permit a Member to make entry of imported goods into its territory conditional upon the exporting Member's policy on prison labour. This paragraph only refers to the products of prison labour.

⁶⁵⁰ Op. Cit.

⁶⁵¹ The footnote in the report referred to the Panel Report on Canada - Administration of the Foreign Investment Review Act, Op. Cit., para. 5.20 and to the Panel Report on United States - Section 337 of the Tariff Act of 1930, Op. Cit., para. 5.27.

⁶⁵² The report of the panel in the Tuna II case was not adopted. We nonetheless recall the findings of the Appellate Body in its report on Japan - Taxes on Alcoholic Beverages, Op. Cit., that unadopted panel reports have no legal status in the GATT or WTO system but that a panel can nevertheless find useful guidance in the reasoning of an unadopted panel report that it considers to be relevant. We consider that the reasoning of the panel in the Tuna II case, in the light of the similarities between the issues addressed by that panel and the present Panel, is relevant in the present case and provides useful guidance.

⁶⁵³ Adopted on 7 November 1952, BISD 1S/59, para. 8.

⁶⁵⁴ United States Court of International Trade: Earth Island Institute v. Christopher, rulings of 8 October (942 F. Supp. 597) and 25 November 1996 (948 F. Supp. 1062).

⁶⁵⁵ As described in para. 7.45.

⁶⁵⁶ See paragraph 7.34.

⁶⁵⁷ We note in this respect that the WTO Committee on Trade and Environment endorsed and supported "multilateral solutions based on international cooperation and consensus as the best and most effective way for governments to tackle environmental problems of a transboundary or global nature. WTO Agreements and multilateral environmental agreements (MEAs) are representative of efforts of the international community to pursue shared goals, and in the development of a mutually supportive relationship between them due respect must be afforded to both". (Report (1996) of the Committee on Trade and Environment, WT/CTE/1, 12 November 1996, para. 171).

⁶⁵⁸ United States Court of International Trade: Earth Island Institute v. Christopher, rulings of 8 October and 25 November 1996, Op. Cit.

⁶⁵⁹ Op. Cit., p. 30.

⁶⁶⁰ See Rio Declaration on Environment and Development, The Final Text of Agreements Negotiated by Governments at the United Nations Conference on Environment and Development (UNCED), 3-14 June 1992, Rio de Janeiro, Brazil.

⁶⁶¹ Rio Declaration on Environment and Development, Op. Cit., Principle 2: "States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction." (Emphasis added)  Principle 11 states that:  "States shall enact effective environmental legislation. Environmental standards, management objectives and priorities should reflect the environmental and development context to which they apply. Standards applied by some countries may be inappropriate and of unwarranted economic and social cost to other countries, in particular developing countries."  In this respect, we note that whilst incidental drowning in shrimp nets may be the single most important source of turtle mortality along the East coast of the United States, in other countries egg harvesting and direct sea turtle harvest are factors affecting significantly the survival of sea turtles.

⁶⁶² Rio Declaration on Environment and Development, Op. Cit., Principle 12: "Environmental measures addressing transboundary or global environmental problems should, as far as possible, be based on an international consensus".

⁶⁶³ We also note that the 1979 Bonn Convention on the Conservation of Migratory Species of Wild Animals (to which some parties to this dispute are not parties) lists the relevant species of sea turtles in Annex I as "Endangered Migratory Species" and provides in its preamble as follows: "The contracting parties [are] convinced that conservation and effective management of migratory species of wild animals requires the concerted action of all States within the national boundaries of which such species spend any part of their life cycle;"

⁶⁶⁴ It appears that WTO bodies support this multilateral approach. See footnote 657 to para. 7.50 above.

⁶⁶⁵ See, e.g., Agreements on Technical Barriers to Trade, fourth preambular paragraph and Articles 2 and 9, Agreement on Sanitary and Phytosanitary Measures, Article 3.

⁶⁶⁶ See, e.g., the 1992 Convention on Biological Diversity, the 1979 Bonn Convention on the Conservation of Migratory Species of Wild Animals. See, also, the 1992 Rio Declaration on Environment and Development.

⁶⁶⁷ Section 609(a)(1) to (4).

⁶⁶⁸ We note in this respect that, in the Gasoline case, the Appellate Body considered that a strong implication arose from the fact that the United States had not pursued the possibility of entering into cooperative arrangements, which would have been a means of alleviating the discrimination suffered by foreign refiners vis-à-vis US refiners. In that case, the Appellate Body concluded that the discrimination was not "inadvertent or unavoidable" and that the measure at issue constituted "unjustifiable discrimination" and a "disguised restriction on international trade".

⁶⁶⁹ UN Doc.A.CONF.62/122, Articles 61(2), 61(4) and 119(1)(b).

⁶⁷⁰ Agenda 21: Programme of Action for Sustainable Development, United Nation Conference on Environment and Development (UNCED), 3-14 June 1992, Rio de Janeiro, Brazil.

⁶⁷¹ See para. 3.168 of this Report.

⁶⁷² One of the experts referred to the FAO Code of Conduct for Responsible Fisheries, unanimously adopted on 31 October 1995 by the FAO Conference. This non-binding text provides for a broad range of guidelines for governments and those involved in fisheries activities with the aim of promoting responsible, sustainable fisheries. We note that the provisions of this document promote, inter alia, the further development and application of selective and environmentally safe fishing gear and practices in order to maintain biodiversity and to conserve the population structure and aquatic ecosystems. Existing proper selective and environmentally safe fishing gear and practices should be recognized and accorded a priority in establishing conservation and management measures. Catches of non-target species, both fish and non fish species, should be minimized (Article 6.6). The Code also provides that its provisions should be interpreted and applied in accordance with the principles, rights and obligations established in the WTO Agreement (Article 11.2.1) and mentions that States should cooperate to develop internationally acceptable rules or standards for trade in fish and fishery products in accordance with the principles, rights and obligations established in the WTO Agreement (Article 11.2.13). Finally, the Code also provides that when a State introduces changes to its legal requirements affecting trade in fish and fishery products with other States, sufficient information and time should be given to allow the States and producers affected to introduce, as appropriate, the changes needed in their processes and procedures. In this connection, consultations with affected States on the time frame for implementation of the changes would be desirable (Article 11.3.4). This Code, even though it is not binding, is evidence of the methods currently favoured for the promotion and development of conservation methods (see, inter alia, the 1992 Convention on Biodiversity or the 1982 Convention on the Law of the Seas).

⁶⁷³ See Article 38.1(b) of the Statute of the International Court of Justice and Brownlie, Principles of Public International Law, 4th edition (1990), pp. 4-5, quoting Brierly: "what is sought for [a custom to be considered as a general practice accepted as law] is a general recognition among States of a certain practice as obligatory".

⁶⁷⁴ We do not question either the fact generally acknowledged by the experts that TEDs, when properly installed and used and adapted to the local area, would be an effective tool for the preservation of sea turtles.

⁶⁷⁵ The complainants referred to the Panel Report on the Uruguayan Recourse to Article XXIII, adopted on 16 November 1962, BISD 11S/95, para. 15.

⁶⁷⁶ See Report (1996) of the Committee on Trade and Environment, Op. Cit., para. 167.

⁶⁷⁷ See para. 7.42.