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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 fulfill 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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