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> US — Shrimp (Article 21.5 — Malaysia), para. 122
> US — Shrimp (Article 21.5 — Malaysia), para. 123
> US — Shrimp (Article 21.5 — Malaysia), para. 124
> US — Shrimp (Article 21.5 — Malaysia), para. 130
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E.2.1 US — Shrimp (Article 21.5
— Malaysia),
para. 122 back to top
(WT/DS58/AB/RW)
We concluded in United States — Shrimp that, to avoid “arbitrary
or unjustifiable discrimination”, the United States had to provide all
exporting countries “similar opportunities to negotiate” an
international agreement. Given the specific mandate contained in Section
609, and given the decided preference for multilateral approaches voiced
by WTO Members and others in the international community in various
international agreements for the protection and conservation of
endangered sea turtles that were cited in our previous Report, the
United States, in our view, would be expected to make good faith efforts
to reach international agreements that are comparable from one forum of
negotiation to the other. The negotiations need not be identical.
Indeed, no two negotiations can ever be identical, or lead to identical
results. Yet the negotiations must be comparable in the sense
that comparable efforts are made, comparable resources are invested, and
comparable energies are devoted to securing an international agreement.
So long as such comparable efforts are made, it is more likely that “arbitrary
or unjustifiable discrimination” will be avoided between countries
where an importing Member concludes an agreement with one group of
countries, but fails to do so with another group of countries.
E.2.2 US — Shrimp (Article 21.5 — Malaysia), para. 123
back to top
(WT/DS58/AB/RW)
Under the chapeau of Article XX, an importing Member may not treat
its trading partners in a manner that would constitute “arbitrary or
unjustifiable discrimination”. With respect to this measure, the
United States could conceivably respect this obligation, and the
conclusion of an international agreement might nevertheless not be
possible despite the serious, good faith efforts of the United States.
Requiring that a multilateral agreement be concluded by the
United States in order to avoid “arbitrary or unjustifiable
discrimination” in applying its measure would mean that any country
party to the negotiations with the United States, whether a WTO Member
or not, would have, in effect, a veto over whether the United States
could fulfil its WTO obligations. Such a requirement would not be
reasonable. For a variety of reasons, it may be possible to conclude an
agreement with one group of countries but not another. The conclusion of
a multilateral agreement requires the cooperation and commitment of many
countries. In our view, the United States cannot be held to have engaged
in “arbitrary or unjustifiable discrimination” under Article XX solely because one international negotiation resulted in
an agreement while another did not.
E.2.3 US — Shrimp (Article 21.5 — Malaysia), para. 124
back to top
(WT/DS58/AB/RW)
As we stated in United States — Shrimp, “the protection
and conservation of highly migratory species of sea turtles … demands concerted and cooperative efforts on the part of the many
countries whose waters are traversed in the course of recurrent sea
turtle migrations”. Further, the “need for, and the appropriateness
of, such efforts have been recognized in the WTO itself as well as in a
significant number of other international instruments and declarations”.
For example, Principle 12 of the Rio Declaration on Environment and
Development states, in part, that “[e]nvironmental measures addressing
transboundary or global environmental problems should, as far as
possible, be based on international consensus”. Clearly, and “as far
as possible”, a multilateral approach is strongly preferred. Yet it is
one thing to prefer a multilateral approach in the application of
a measure that is provisionally justified under one of the subparagraphs
of Article XX of the GATT 1994; it is another to require the conclusion
of a multilateral agreement as a condition of avoiding “arbitrary
or unjustifiable discrimination” under the chapeau of Article XX. We
see, in this case, no such requirement.
E.2.4 US — Shrimp (Article 21.5 — Malaysia), para. 130
back to top
(WT/DS58/AB/RW)
At no time in United States — Shrimp did we refer to the
Inter-American Convention as a “benchmark”. The Panel might have
chosen another and better word — perhaps, as suggested by Malaysia,
“example”. Yet it seems to us that the Panel did all that it should
have done with respect to the Inter-American Convention, and did so
consistently with our approach in United States — Shrimp. The
Panel compared the efforts of the United States to negotiate the
Inter-American Convention with one group of exporting WTO Members with
the efforts made by the United States to negotiate a similar agreement
with another group of exporting WTO Members. The Panel rightly used the
Inter-American Convention as a factual reference in this exercise of
comparison. It was all the more relevant to do so given that the
Inter-American Convention was the only international agreement that the
Panel could have used in such a comparison. As we read the Panel Report,
it is clear to us that the Panel attached a relative value to the
Inter-American Convention in making this comparison, but did not view
the Inter-American Convention in any way as an absolute standard. Thus,
we disagree with Malaysia’s submission that the Panel raised the
Inter-American Convention to the rank of a “legal standard”. The
mere use by the Panel of the Inter-American Convention as a basis for
a comparison did not transform the Inter-American Convention into a
“legal standard”. Furthermore, although the Panel could have chosen
a more appropriate word than “benchmark” to express its views,
Malaysia is mistaken in equating the mere use of the word “benchmark”,
as it was used by the Panel, with the establishment of a legal standard.
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The texts reproduced here do not have the legal standing of the original
documents which are entrusted and kept at the WTO Secretariat in Geneva.
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