* WTO Document No. WT/DS58/R. This text is reproduced and reformatted from the decision appearing at the World Trade Organization Website (visited 5/21/98)<http://www.wto.org/wto/dispute/distab.htm>. For reasons of space limitation, ILM is printing only the Introduction, Findings, and Conclusions sections of the report. The full text of the Panel report can be obtained through the offices of the WTO or on their Website. Footnotes within the text of this document retain the original numbering.

1 Codified at 16 U.S.C. 1537 note, amending the Endangered Species Act of 1973, 16 U.S.C. § 1531 et seq.

2 61 Fed. Reg. 17342, (19 April 1996).

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

6l2 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”.

6l7 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.

6l9 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 HI 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 GAIT 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.

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.l 1/50, 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, BISD34S/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 IS/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)(l) 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(l)(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 US/95, para. 15.

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

677 See para. 7.42.