Topics handled by WTO committees and agreements
Issues covered by the WTO’s committees and agreements


Environmental Multilateral Agreements


> 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

E.2.1 US — Shrimp (Article 21.5 — Malaysia), para. 122     back to top

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

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

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

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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