Australia - Measures Affecting Importation of Salmon Report of the Panel (Continued) 4. Application of GATT 1994 and the SPS Agreement 8.29 Canada first claims that the measure in dispute violates GATT 1994. We note that this dispute relates to trade in goods (in casu, imports of certain fresh, chilled or frozen salmon products) and that on its face GATT 1994 applies. 8.30 Canada next invokes the SPS Agreement. Both parties agree that the SPS Agreement applies to the measure in dispute. Article 1.1 of the SPS Agreement provides that it applies to "all sanitary and phytosanitary measures which may, directly or indirectly, affect international trade. Such measures shall be developed and applied in accordance with the provisions of this Agreement". Neither of the parties to this dispute contests that the measure at issue affects international trade. We agree that it does so. 8.31 With respect to the question whether the measure in dispute is a "sanitary measure", paragraph 1 of Annex A to the SPS Agreement defines what is considered to be a "sanitary measure" for purposes of the SPS Agreement. Australia claims that the measure in dispute falls under the following two definitions of a "sanitary measure": "[a]ny measure applied: (a) to protect animal ... life or health within the territory of the Member from risks arising from the entry, establishment or spread of pests, diseases ... or disease-causing organisms; (b) to protect ... animal life or health within the territory of the Member from risks arising from ... disease-causing organisms in foods ...". 220 8.32 According to Australia, the measure at issue is applied to protect the life and health of animals in Australia, more particularly salmonids and other aquatic animals. The protection of human life or health is not at issue in this dispute. With respect to the definition of a "sanitary measure" in paragraph 1(a), Australia argues that the measure at issue is intended to protect Australian salmonids and other aquatic animals against 24 disease agents ("diseases ... or disease-causing organisms") of concern to it. 221 To justify that its measure also falls under the definition of a "sanitary measure" in paragraph 1(b), Australia notes that, if allowed into Australia, Canadian salmon would be used as food (for human consumption). According to Australia, this food could incidentally enter Australian waterways, (e.g., through waste disposal) where it might be consumed (as feedstuff) by salmon or other fish and thus adversely affect animal health with any of the 24 diseases of concern. 8.33 Canada argues that the measure in dispute only falls under the definition of a "sanitary measure" contained in paragraph 1(a) of Annex A. Canada refers to the first introductory paragraph of the "Salmon Import Risk Analysis, Final Report" of December 1996, put forward by Australia as the risk assessment on which its measure is based ("1996 Final Report"). That paragraph, entitled "Purpose of paper", states that the main issues discussed are, inter alia, "the likelihood of disease entry and establishment" and "the consequences that may arise from that disease entry and establishment". 222 Canada submits that there is no mention of assessing risks to salmon from disease-causing organisms in food and that one would not expect such an assessment when the product in question is intended for human consumption. 8.34 In the circumstances at hand, we consider that the definition of a "sanitary measure" in paragraph 1(a) encompasses the coverage sought by Australia under the definition in paragraph 1(b). The definition in paragraph 1(a) deals with risks arising from "the entry, establishment or spread of pests, diseases ... or disease-causing organisms" in general. In the context of disease-causing organisms, the definition in paragraph 1(b) is limited in the sense that it only addresses risks arising from "disease-causing organisms in foods, beverages or feedstuffs" (hereafter also referred to as food-borne risks). We are of the view that, even though both definitions of a "sanitary measure" invoked by Australia might be applicable to the measure in dispute, the objectives for which that measure is being applied are more appropriately covered by the definition in paragraph 1(a). These objectives have been clearly expressed by Australia on several occasions. 8.35 First, QP86A itself provides that the import of salmon products is prohibited unless they have been "subject to such treatment as in the opinion of the Director of Quarantine is likely to prevent the introduction of any infectious or contagious disease, or diseases or pest affecting persons, animals or plants". 223 Second, in the 1996 Decision as well, the risk against which protection is required is stated to be "the probability of establishment of ... diseases". None of the Australian measures submitted to the Panel are limited to, or even explicitly mention, food-borne risks. Third, also the 1996 Final Report, submitted by Australia as the risk assessment on which its measure is based, assesses the risks related to "disease entry and establishment" and "the consequences that may arise from that disease entry and establishment". 224 Even though the Report is based on the premise that the imported product is food intended for human consumption, it does not only address risk to fish life or health arising from this "food" infected with diseases in the event this "food" were to end up in Australian waterways and be eaten by individual fish. The scope of the 1996 Final Report is, indeed, much wider in that it assesses risk related to the entry, establishment and further spread of these diseases in Australia more generally. 8.36 In this respect we also note that all Australian measures submitted to the Panel, as well as the 1996 Final Report, are explicitly presented by Australia as "quarantine" measures or documents, (e.g., Quarantine Proclamation 86A, the 1988 Conditions issued by the Director of Quarantine, the 1996 Final Report is subtitled "An assessment by the Australian Government of quarantine controls on ..."). Without defining the word "quarantine" as it is used in the SPS Agreement, we consider that the concept of "quarantine" more generally is commonly understood to relate to avoiding the spread of pests or diseases (in the sense of the definition of a "sanitary measure" in paragraph 1(a)). It is not limited to protecting the life or health of individual human beings or animals against food-borne risks (in the sense of the definition in paragraph 1(b)). 225 8.37 On these grounds, we find that, even though both definitions of a "sanitary measure" invoked by Australia might be applicable to the measure in dispute, in the specific circumstances of this case we need to examine this measure as a measure applied "to protect animal ... life or health within [Australia] from risks arising from the entry, establishment or spread of pests, diseases ... or disease-causing organisms" in the sense of paragraph 1(a) of Annex A to the SPS Agreement. Given our earlier considerations in paragraph 8., we thus find that the SPS Agreement applies to the measure in dispute. 5. Relationship between the SPS Agreement and GATT 1994 8.38 We found that both GATT 1994 and the SPS Agreement apply to the measure in dispute. The question now arises which of these we should examine first. 8.39 Canada recognizes that the SPS Agreement provides for obligations additional to those contained in GATT 1994, but, nevertheless, first addresses its claim under Article XI of GATT 1994. Australia invokes Article 2.4 of the SPS Agreement, which presumes GATT consistency for measures found to be in conformity with the SPS Agreement226, to first address the SPS Agreement. We note, moreover, that (1) the SPS Agreement specifically addresses the type of measure in dispute, and (2) we will in any case need to examine the SPS Agreement, whether or not we find a GATT violation (since GATT consistency is nowhere presumed to constitute consistency with the SPS Agreement). In order to conduct our consideration of this dispute in the most efficient manner, we shall, therefore, first address the claims made by Canada under the SPS Agreement before addressing those put forward under GATT 1994. 227 D. THE SPS AGREEMENT 1. Burden of proof 8.40 Turning first to the question of burden of proof under the SPS Agreement, we note the following statement of the Appellate Body in its Report on EC - Hormones: "The initial burden lies on the complaining party, which must establish a prima facie case of inconsistency with a particular provision of the SPS Agreement on the part of the defending party, or more precisely, of its SPS measure or measures complained about. When that prima facie case is made, the burden of proof moves to the defending party, which must in turn counter or refute the claimed inconsistency". 228 In this dispute it is thus for Canada to establish a prima facie case of inconsistency of the Australian measure at issue with each of the provisions of the SPS Agreement Canada invokes. Once this is done, it is for Australia to counter or refute the claimed inconsistency. In other words, if Canada "adduces evidence sufficient to raise a presumption that what is claimed is true, the burden then shifts to [Australia], who will fail unless it adduces sufficient evidence to rebut the presumption". 229 8.41 In this respect - and especially following comments made by Australia at the interim review stage that our legal reasoning and findings do not reflect an objective assessment of the matter before us, undertake a de novo risk assessment and are based on motives or intent - we stress that in examining this case we did not attempt (nor are we, in our view, allowed) to conduct our own risk assessment or to impose any scientific opinion on Australia. We only examined and evaluated the evidence - including the information we received from the experts advising the Panel - and arguments put before us in light of the relevant WTO provisions and, following the rules on burden of proof set out above, based our findings on this evidence and these arguments. 2. Sequence of claims to be addressed 8.42 Canada claims, in the following order, violations of Articles 3.1 and 3.3, Articles 5.1, 5.2, 5.5 and 5.6 and Articles 2.2 and 2.3 of the SPS Agreement. Australia addresses these claims in a different order, first presenting arguments under Article 2 of the SPS Agreement and further following a numerical order. 8.43 The question thus arises which of these provisions of the SPS Agreement we should address first in this particular dispute. 8.44 We note that Article 3, the first Article invoked by Canada, provides in relevant part: "1. To harmonize sanitary and phytosanitary measures on as wide a basis as possible, Members shall base their sanitary or phytosanitary measures on international standards, guidelines or recommendations, where they exist, except as otherwise provided for in this Agreement, and in particular in paragraph 3. 2. Sanitary or phytosanitary measures which conform to international standards, guidelines or recommendations shall be deemed to be necessary to protect human, animal or plant life or health, and presumed to be consistent with the relevant provisions of this Agreement and of GATT 1994. 3. Members may introduce or maintain sanitary or phytosanitary measures which result in a higher level of sanitary or phytosanitary protection than would be achieved by measures based on the relevant international standards, guidelines or recommendations, if there is a scientific justification, or as a consequence of the level of sanitary or phytosanitary protection a Member determines to be appropriate in accordance with the relevant provisions of paragraphs 1 through 8 of Article 5. Notwithstanding the above, all measures which result in a level of sanitary or phytosanitary protection different from that which would be achieved by measures based on international standards, guidelines or recommendations shall not be inconsistent with any other provision of this Agreement". According to Article 3.2, if the measure in dispute conforms to international guidelines, it shall be presumed to be consistent with both the SPS Agreement and GATT 1994. In that event, there would, at first sight, be no further need to address the SPS provisions at issue other than Article 3 (in casu, Articles 2 and 5). This could be a reason to first address Article 3. 230 However, in the particular circumstances of this case, several considerations lead us to not first examine Article 3. 8.45 First, Australia - in this case the WTO Member imposing the sanitary measure - does not claim that its measure conforms to international guidelines. Australia submits, inter alia, that there are no international guidelines for some of the diseases of concern and that the measure at issue validly aims at a higher level of protection than that reflected in the international guidelines referred to. Therefore, the reason to address Article 3 first, because it could lead to a presumption of consistency with all other SPS provisions, does not apply in this case. 8.46 Second, the dispute before us concerns the importation of salmon products, which according to Australia could carry up to 24 diseases. Paragraph 3(b) of Annex A to the SPS Agreement indicates that the international standards, guidelines or recommendations referred to in Article 3 for animal health (the concern at issue in this dispute) are those developed under the auspices of the International Office of Epizooties ("OIE"). Both parties agree that the International Aquatic Animal Health Code adopted by the OIE in 1995 ("OIE Code") provides international guidelines on a disease-by-disease basis. However, they also agree that as of today no relevant OIE guideline exists which deals with salmon on a product specific basis. Moreover, both parties also agree that OIE guidelines do not exist for all of the 24 diseases of concern to Australia. Therefore, even if we were to examine first, if and how many relevant international guidelines exist and second address the question of whether Australia deviates from these guidelines, we would thereafter still need to examine either (1) in the event Australia does deviate from any such guidelines contrary to Article 3, whether the measure in dispute could not be based on Australia's concern for any of the other diseases for which no international guideline exists (in casu, under Articles 2 and 5); or (2) in the event Australia's measure is based on and/or conforms to any such guidelines, whether that part of the measure for which no guidelines exist, is consistent with the provisions of the SPS Agreement other than Article 3 (in casu, Articles 2 and 5). In this respect, we are of the view, however, that the fact that in this case no international guidelines exist for all 24 diseases of concern does not mean that an international guideline which applies to only one of these diseases cannot be relevant (or, according to the language of Article 3.1, does not "exist") for the measure at issue. 8.47 For the reasons mentioned above, even if we were to start our examination of this dispute under Article 3, we would in any event be referred to and thus still need to address Articles 2 and 5. To conduct our examination of this case in the most efficient manner, we shall, therefore, first address Articles 2 and 5. 8.48 Article 2, entitled "Basic Rights and Obligations", elaborates on the basic rights and obligations of WTO Members under the SPS Agreement. Article 5, under the heading "Assessment of Risk and Determination of the Appropriate Level of Sanitary or Phytosanitary Protection", provides, inter alia, more detailed obligations with respect to risk assessment, establishes the objectives of minimizing negative trade effects and of achieving consistency in levels of protection and specifies that sanitary measures should not be more trade-restrictive than required. The Appellate Body Report on EC - Hormones on several occasions stressed the close relationship between Articles 2 and 5 (in particular between Articles 2.2 and 5.1 and Articles 2.3 and 5.5, all of which are at issue in this dispute). 231 The Appellate Body repeatedly noted that the more general Article 2 imparts meaning to and is part of the context of the more specific Article 5 and that both Articles should constantly be read together. 232 However, even if we read Articles 2 and 5 together during our examination of this case, in practice we still have to decide which set of Canadian claims (those under Article 2 or those under Article 5) to address first. Since in this particular case, (1) Canada itself first presents its claims under Article 5, before addressing those under Article 2, and (2) the provisions invoked by Canada under Article 5 (i.e., Articles 5.1, 5.2, 5.5 and 5.6) all provide for more specific and detailed rights and obligations than the "Basic Rights and Obligations" set out in rather broad wording in the provisions invoked by Canada under Article 2 (i.e., Articles 2.2 and 2.3) 233, we consider it more appropriate in the circumstances of this dispute to first deal with Canada's claims under Article 5. 234 3. Canada's claims under Articles 5.1 and 5.2: Sanitary measures are to be based on a risk assessment 8.49 Canada submits that the measure in dispute is inconsistent with Articles 5.1 and 5.2, which provide as follows: "1. Members shall ensure that their sanitary or phytosanitary measures are based on an assessment, as appropriate to the circumstances, of the risks to human, animal or plant life or health, taking into account risk assessment techniques developed by the relevant international organizations. 2. In the assessment of risks, Members shall take into account available scientific evidence; relevant processes and production methods; relevant inspection, sampling and testing methods; prevalence of specific diseases or pests; existence of pest- or disease-free areas; relevant ecological and environmental conditions; and quarantine or other treatment". Both parties agree that the OIE Code, in particular its Section 1.4 on "Import risk analysis" 235 which, inter alia, provides "Guidelines for Risk Assessment", contains "risk assessment techniques developed by the relevant international organizations" to be taken into account by Australia under Article 5.1. 8.50 Canada does not challenge the measure at issue under Article 5.3 (elaborating on the "relevant economic factors" to be taken into account in a risk assessment) nor do we see any reason to further examine this provision. 8.51 We recall that Articles 5.1 and 5.2 may be viewed as one of the specific applications of the basic obligations contained in Article 2.2236, which provides as follows: "Members shall ensure that any sanitary or phytosanitary measure is applied only to the extent necessary to protect human, animal or plant life or health, is based on scientific principles and is not maintained without sufficient scientific evidence, except as provided for in paragraph 7 of Article 5". (underlining added) As stated by the Appellate Body in EC - Hormones: "... Articles 2.2 and 5.1 should constantly be read together. Article 2.2 informs Article 5.1: the elements that define the basic obligation set out in Article 2.2 impart meaning to Article 5.1". 237 8.52 For these reasons, we consider, more particularly, that Articles 5.1 and 5.2 - in the words of the Appellate Body in EC - Hormones when dealing with the relationship between Articles 2.3 and 5.5 - "may be seen to be marking out and elaborating a particular route leading to the same destination set out in" Article 2.2. Indeed, in the event a sanitary measure is not based on a risk assessment as required in Articles 5.1 and 5.2, this measure can be presumed, more generally, not to be based on scientific principles or to be maintained without sufficient scientific evidence. We conclude, therefore, that if we find a violation of the more specific Article 5.1 or 5.2 such finding can be presumed to imply a violation of the more general provisions of Article 2.2. We do recognize, at the same time, that given the more general character of Article 2.2 not all violations of Article 2.2 are covered by Articles 5.1 and 5.2. (a) The salmon products in dispute other than those from adult, wild, ocean-caught Pacific salmon 238 8.53 Canada claims that Australia maintains the measure at issue with respect to the salmon products in dispute other than those from adult, wild, ocean-caught Pacific salmon, without any form of risk assessment. Australia acknowledges that the salmon products at issue in this dispute are not limited to adult, wild, ocean-caught Pacific salmon. Australia argues that it had initially set in train a risk assessment of all salmonid product of Canadian or US origin, but that it acceded to the request from Canada and the United States in late 1994 that priority be accorded to a risk assessment on adult wild, ocean-caught Pacific salmon, which would reduce the complexity of the process in regard to a product of higher commercial significance for Canada and the United States. Australia submits that since, thereafter, Canada never requested to extend the product coverage of Australia's risk assessment to all Canadian salmon, Australia cannot be reasonably expected to have a formal risk assessment for all salmon products at issue. In this respect, Australia refers to Article 5.1 which requires a risk assessment "as appropriate to the circumstances". 8.54 We recall that the scope of the measure in dispute covers salmon products (1) imported from Canada, (2) for human consumption, (3) which are fresh, chilled or frozen and (4) which originate from any of six species of salmon identified by Canada (pink salmon, chum salmon, coho salmon, sockeye salmon, chinook or king salmon, all five being Pacific salmon; and Atlantic salmon). 239 Within this broad category of salmon products at issue five subdivisions can be made: (1) adult, wild, ocean-caught Pacific salmon; (2) adult, wild, freshwater-caught Pacific salmon; (3) adult Pacific salmon cultured in seawater on the Pacific coast; (4) adult Atlantic salmon cultured in seawater on the Pacific coast; and (5) adult Atlantic salmon cultured in seawater on the Atlantic coast. 240 Of the salmon products at issue, Australia only claims to have a risk assessment for the first of these five categories, namely those from adult, wild, ocean-caught Pacific salmon. This category represents the majority of Canadian exports of uncooked salmon. 241 With respect to this category of salmon products Australia submits that the measure in dispute is based on the "Salmon Import Risk Analysis, Final Report" published by the Department of Primary Industries and Energy in December 1996 (hereafter referred to as the "1996 Final Report"). With respect to the other four categories of salmon products in dispute, Australia concedes that it has not conducted or relied upon a risk assessment in the sense of Article 5. In its Rebuttal Submission Australia states the following: "The risk has been assessed in relation to diseases or disease agents in adult, wild, ocean caught uncooked salmon of Canadian and US origin. The Final Report of December 1996 is an assessment of the risk. There is no other risk assessment. No formal assessment has been undertaken on all uncooked salmon of Canadian origin. It was the intention to undertake such a risk assessment, but the product coverage was subsequently limited to the Pacific salmon at the request of Canada and the USA". 242 (underlining added) The 1996 Final Report itself explains its limited scope as follows: "Canada and the United States have requested access for salmon products without reference to the species. However Australia, after consulting with the United States and Canada, has so far addressed the import of wild, ocean-caught Pacific salmon only. This allows more focused debate on the disease issues associated with Pacific salmon. Other classes of product, including aquaculture product and product derived from other species and/or locations, are expected to be characterised by different disease factors". 243 (underlining added) To this Australia adds in its first submission that "to the extent that a disease agent is common to the wild Pacific and other Canadian salmon products, the conclusions [reached in the 1996 Final Report] are equally valid for all fresh, chilled and frozen salmon of Canadian origin". 244 8.55 Canada counters that it only suggested to Australia to proceed first with an assessment of adult, wild, ocean-caught Pacific salmon, on the understanding that an assessment of other salmon products would soon follow. Canada further submits that given that Australia has prohibited the importation of all uncooked salmon, and not only adult, wild, ocean-caught Pacific salmon, it is obliged by the SPS Agreement to assess risk with respect to all uncooked salmon; Australia is not entitled to limit its assessment to adult, wild, ocean-caught Pacific salmon. 8.56 In addressing this issue, we note that Article 5.1 does not qualify - either in terms of application in time or product coverage - the substantive obligation imposed on all WTO Members to base their sanitary measures on a risk assessment. As far as the application in time of the SPS Agreement is concerned, we refer to the Appellate Body Report on EC - Hormones, which confirmed that the SPS Agreement applies to sanitary measures enacted before, but maintained after, the entry into force of the SPS Agreement. 245 In particular Article 2.2 - in light of which Article 5.1 has to be read - confirms this reading. It provides that sanitary measures have to be "based on scientific principles" and "not maintained without sufficient scientific evidence". (emphasis added) 8.57 As to the product coverage of Article 5.1, the reference contained in Article 5.1 to base sanitary measures on an assessment "as appropriate to the circumstances" cannot, in our view, annul or supersede the substantive obligation resting on Australia to base the sanitary measure in dispute (irrespective of the products that measure may cover) on a risk assessment. We consider that the reference "as appropriate to the circumstances" relates, rather, to the way in which such risk assessment has to be carried out. 246 Only Article 5.7 allows for an exception to the obligation to base sanitary measures on a risk assessment, namely "in cases where relevant scientific evidence is insufficient". In such event "a Member may provisionally adopt sanitary or phytosanitary measures on the basis of available pertinent information". Article 5.7 adds, however, that "[i]n such circumstances, Members shall seek to obtain the additional information necessary for a more objective assessment of risk and review the sanitary or phytosanitary measure accordingly within a reasonable period of time". In this dispute Australia has not invoked Article 5.7. Nor do we consider that this provision applies to the measure in dispute, given the fact that it was imposed more than 20 years ago and can thus hardly be seen as a measure "provisionally" adopted. Articles 5.2 and 5.3, in turn, only qualify the way in which a risk assessment has to be carried out, not the substantive obligation to base a sanitary measure on a risk assessment. 8.58 Furthermore, we do not consider that Canada's request or agreement to initially limit the scope of Australia's risk assessment to adult, wild, ocean-caught Pacific salmon overrides Australia's substantive obligation to base the sanitary measure in dispute on a risk assessment for all salmon products covered by that measure. We recall, in this respect, that to the extent Canada brought a complaint under QP86A the scope of this dispute is wider than adult, wild, ocean-caught Pacific salmon. As to the second argument forwarded by Australia on this issue247, we do not consider - nor has Australia claimed - that the 1996 Final Report (which is explicitly limited to adult, wild, ocean-caught Pacific salmon) constitutes a risk assessment, in the sense of Article 5.1, for the other categories of salmon products covered by the measure in dispute. We do, however, agree with Australia that some of the evidence, assessments and conclusions contained in the 1996 Final Report might be relevant for the risk assessment to be carried out (or relied upon) for the other categories of salmon products and that, therefore, a completely new risk assessment for these other categories of salmon products might not be necessary. In support of this, we note the opinion of the following scientific experts advising the Panel248: Burmaster (Transcript, para. 14): "... here we have, in this situation, multiple fish diseases, potentially multiple fish diseases and potentially multiple target species of fish. The question has arisen if there are ten diseases of fish - ten different diseases - and five different fish species, to make up a hypothetical argument, do we have to multiply those and do fifty, ten times five, different risk assessments? I think, as a practical matter one need not have to do fifty different risk assessments. I think that there are ways to sort through that, it may be that you would have to do one or two or smaller number of risk assessments not a full number of fifty". Rodgers (Answer to Panel Question 11, Rodgers answers, page 15249: "Some of the data and findings contained in the Australian Final Report dealing with wild ocean-caught adult Pacific salmon could be validly used in a risk assessment for the four other categories of salmon [adult wild freshwater-caught Pacific salmon, adult Pacific salmon cultured in seawater on the Pacific coast, adult Atlantic salmon cultured in seawater on the Pacific coast and adult Atlantic salmon cultured in seawater on the Atlantic coast]. However, there are additional factors to consider for aquacultured species and wild freshwater-caught species, as opposed to wild ocean-caught fish. These would include the presence of known vectors (and alternative host species), the access of anadromous fish to water supplies, protected water sources ...". Wooldridge (Answer to Panel Question 4, Wooldridge answers, page 10): "With regard to imports of other products of other species known to carry the same diseases, information on the existence of such products is important in two respects. First, a comparison with other products may provide data necessary to assess the probability of exposure, transmission and consequences of a given disease post-entry within a country or region. Secondly, the information on the existence of such products is an important part of the overall risk analysis (as opposed to the risk assessment) and should be sought as part of that analysis ... Whether a complete risk assessment of any other particular product is required depends on the precise situation; in certain circumstances it may be enough to demonstrate that a particular product containing a given disease agent, and subject to similar use and disposal pathways, has been imported regularly for many years with no detected disease consequences". To continue with Australia - Measures Affecting Importation of Salmon: Section 8.59 220 Paragraph 1(a) and (b) of Annex A. 221 The 24 diseases of concern to Australia are summed up in Table 3 of the descriptive part. 222 DPIE, Salmon Import Risk Analysis, Final Report, December 1996, p.3. 223 QP86A, p.2, emphasis added, see para. 8.10. 224 1996 Final Report, p.3. 225 The New Shorter Oxford English Dictionary defines "quarantine" as "[a] period of isolation, orig. of forty days, imposed on a person, animal, or thing that might otherwise spread a contagious disease" (Clarendon Press, Oxford, Vol. 2, p.2440, emphasis added). Webster's New Encyclopedic Dictionary (Könermann, Cologne, 1994, p.828) defines "quarantine" as "2: a restraint upon the activities or movements of persons or the transport of goods designed to prevent the spread of disease or pests" (emphasis added). 226 SPS Article 2.4 provides as follows: "Sanitary or phytosanitary measures which conform to the relevant provisions of this Agreement shall be presumed to be in accordance with the obligations of the Members under the provisions of GATT 1994 which relate to the use of sanitary or phytosanitary measures, in particular the provisions of Article XX(b)". 227 In this respect, we follow the approach taken in the Panel Reports on EC - Hormones, complaints by the United States and Canada, adopted 13 February 1998 (modified on appeal on other grounds), WT/DS26/R/USA and WT/DS48/R/CAN, para. 8.42, and para. 8.45, respectively. 228 Adopted 13 February 1998, WT/DS26/AB/R, para. 98. See also the Panel Reports on EC - Hormones, op. cit., respectively, at paras 8.51 and 8.54. 229 Appellate Body Report on United States - Measure Affecting Imports of Woven Wool Shirts and Blouses from India, adopted 23 May 1997, WT/DS33/AB/R, p.14. 230 We note that the Panels in EC - Hormones started their examination under Article 3 (op. cit., US complaint, paras. 8.45 and 8.56 ff.; Canadian complaint, paras. 8.48 and 8.59 ff.). 231 Op. cit., paras. 180, 212, 238 and 250. 232 Ibid. 233 In this respect we note, however, that not only Article 5, but also most other provisions of the SPS Agreement provide for more details on the basic rights and obligations set out in Article 2. 234 In this respect we refer to the Appellate Body Report on EC - Regime for the Importation, Sale and Distribution of Bananas, adopted 25 September 1997, WT/DS27/AB/R, para. 204, which in a different context applied a similar reasoning: "Although Article X:3(a) of the GATT 1994 and Article 1.3 of the Licensing Agreement both apply, the Panel, in our view, should have applied the Licensing Agreement first, since this agreement deals specifically, and in detail, with the administration of import licensing procedures. If the Panel had done so, then there would have been no need for it to address the alleged inconsistency with Article X:3(a) of the GATT 1994". 235 OIE Code, pp.29-37. 236 Para. 8.48 and Appellate Body Report on EC Hormones, op. cit., para. 180. 237 Op. cit., para. 180. 238 The salmon products addressed in this section are the salmon products in dispute from (1) adult, wild, freshwater-caught Pacific salmon; (2) adult Pacific salmon cultured in seawater on the Pacific coast; (3) adult Atlantic salmon cultured in seawater on the Pacific coast; and (4) adult Atlantic salmon cultured in seawater on the Atlantic coast. 239 Para. 8.21. 240 In its answer to original Panel Question 2, Canada stated that it only harvests adult salmon for export and that it does not harvest wild Atlantic salmon for export. 241 According to figures submitted by Canada (not contested by Australia), adult, wild, ocean-caught Pacific salmon represents seven-year average (1990-1996) of 58 % of all Canadian uncooked salmon for export (see Table 1 in the descriptive part). 242 Australia, Rebuttal Submission, para. 84. See also Australia's answer to Panel Question 2, Australia answers, p.4: "Australia has not done a risk analysis on farmed Pacific salmon or on commercially produced Atlantic salmon (which, in Canada, all originates from farms)". 243 1996 Final Report, p.25. 244 Australia, First Submission, para. 137. 245 Op. cit., paras. 126-130. 246 See further in para. 8.70. 247 Para. 8.54 in fine. 248 We only refer to three of the four experts advising the Panel since only these three have expressed an opinion on this issue. 249 See also Rodgers, Transcript, para. 28.

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