RESTRICTEDWORLD TRADE
ORGANIZATIONWT/DSB/M/50
14 December 1998
(98-5046)
Dispute Settlement Body
6 November 1998
MINUTES OF MEETING
Held in the Centre William Rappard
on 6 November 1998
Chairman:  Mr. Kamel Morjane (Tunisia)
Subjects discussed: Page
1. United States - Import Prohibition of Certain Shrimp and Shrimp Products....................1
(a) Report of the Appellate Body and Report of the Panel...............................................................1
2. Australia – Measures Affecting Importation of Salmon .....................................................18
(a) Report of the Appellate Body and Report of the Panel.............................................................18
1. United States - Import Prohibition of Certain Shrimp and Shrimp Products
(a) Report of the Appellate Body (WT/DS58/AB/R)  and Report of the Panel (WT/DS58/R and
Corr. 1)
The Chairman drew attention to the communi cation from the Appellate Body contained in
document WT/DS58/13 transmitting the Appellate B ody Report in "United States - Import Prohibition
of Certain Shrimp and Shrimp Products", which ha d been circulated in document WT/DS58/AB/R in
accordance with Article 17.5 of the DSU.  He said that in accordance with the Decision on Procedures
for the Circulation and Derestriction of WTO docu ments contained in WT/L/160/Rev.1, the Appellate
Body Report and the Panel Report had been circulated as unrestricted documents.  He recalled that
under Article 17.14 of the DSU "An Appellate Body  report shall be adopted by the DSB and
unconditionally accepted by the parties to the dispute unless the DSB decides by consensus not to
adopt the Appellate Body Report within 30 days following its circulation to the Members.  This
adoption procedure is without prejudice to the right of Members to express their views on anAppellate Body report".
The representative of Thailand said that the long and arduous legal proceedings regarding this
case had reached an important stage in the dispute settlement process.  He thanked the Panel and the
Appellate Body for their effort and contribution as well as the Secretariat for its work and assistance.
He recalled that Thailand had brought this case to the DSB not so much for its economic interest, butas a matter which involved the fundamental principle of the multilateral trading system.  As a result of
a unilateral action by one Member, Thailand had to reflect seriously upon the principle enshrined in
the basic philosophy of GATT, namely the re spect for multilateralism and trade without
discrimination.  Thailand believed that the application of unilateral and extraterritorial measures was
unacceptable and incompatible with the multilateral trading system.  Both the reputation andcredibility of the WTO, as a  result of many years of negotiations and the observed disciplines which
had established a delicate balance of rights and obligations among Members, could be underminedWT/DSB/M/50
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and weakened by such measures.  Under the multilateral trading system, no country could impose
unilaterally its trade policies on other trading partners through a restrictive embargo.  The unilateral
application of Section 609 had brought to the fore the arbitrary and discriminatory effects of such
import prohibition.
Thailand attached importance to the conservation issues and believed that sea turtles were
worthy of conservation.  However, its real concern was the manner in which conservation had been
carried out and whether the US measure was consistent with the basic GATT-principles.  The scope of
application of this measure, in the context of Article XX of GATT 1994, had raised a number of
important questions.  Thailand had stated before the Panel that any decision with regard to this case
would have profound systemic implications, consequences and repercussions for the conduct of world
trade and the behaviour of trading nations.  His country was pleased with the conclusion reached and
upheld by the Appellate Body that “…this measure has been applied by the United States in a mannerwhich constitutes arbitrary and unjustifiable discrimination....., contrary to the requirements of the
chapeau of Article XX” (paragraph 186).  Thailand supported the Panel’s ruling that the US embargo
constituted a “threat to the multilateral trading system ”, and that it was inconsistent with Article XI:1
of GATT 1994 and could not be justified under Article XX.  The Panel had rightly stated in paragraph
7.45 of its Report that if the interpretation of Article XX were to be followed which would allow aMember to provide market access contingent upon the adoption by the exporting Members of certain
policies, including conservation policies, the GATT 1994 and the WTO Agreement could no longer
serve as a multilateral framework for trade among Members, as security and predictability of trade
relations under those agreements would be threatened.  In its concluding remarks contained in part IX
of its Report, the Panel had stated that Members were bound by obligations to implement their policyobjectives in such a way that “is consistent with their WTO objectives, not depriving the WTO
Agreement of its object and purpose”.
He wished to express his country's views, in particular with regard to the Appellate Body
Report, in the light of what it perceived as grave and legitimate concerns arising out of the
observations and decision of the Appellate Body.  It was necessary to express the views upon theadoption of the Reports in the interest of long-term viability and sanctity of the dispute settlement
system, which was vital for preserving the balance of rights and obligations embodied in the rule-
based multilateral trading system.  His delegation’s concerns related to both procedural and
substantive issues.
With regard to the procedural issues, it was apparent that the Appellate Body had used this
case to extend its authority beyond that granted to it under  the WTO Agreement.  Article 17.6 of the
DSU limited the jurisdiction of the Appellate Body to issues of law covered in panel reports and legalinterpretations developed by panels.  Article 19.2 of the DSU prohibited the Appellate Body from
adding to or diminishing the rights and  obligations provided in the covered agreements.  However, the
Appellate Body had failed to respect these negotiated limitations in several instances.  He drew
attention to the fact that the Appellate Body had made at least six new findings of facts, based on its
oral hearing which had then been used in its interpretation of the chapeau of Article XX.  Although ineach instance the findings had supported the appellees, the Appellate Body might have exceeded its
jurisdictional limits under Article 17.6 of the DSU.  In the Appellate Body Report on "Australia -
Measures Affecting Importation of Salmon", which had recently been circulated, a different approach
to the same problem had been taken by another A ppellate Body's division.  In paragraph 193 of that
Report, the Appellate Body had refrained from making new factual findings on a sanitary andphytosanitary issue, due to the absence of factual findings at the Panel level and/or facts that had not
been disputed by the parties.
Another procedural flaw concerned the Appellate Body’s treatment of amicus curiae  briefs
submitted by non-governmental orga nizations (NGOs).  Hi s delegation believed that Members, not
the Appellate Body, should decide the extent to which NGOs might be involved in a disputesettlement process.  Thailand's long-standing position was that the WTO Agreement did not giveWT/DSB/M/50
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NGOs the right to submit amicus  briefs, nor did it allow Members to attach amicus  briefs to their
submissions that did not reflect their point of vi ew.  The Appellate Body’s conclusion in paragraph
107 of its Report had defied the rights and obligations of Members and the basic intention under the
DSU.  The argument contained therein indicated that the Appellate Body had taken into consideration
more than the issues of law and legal interpretation.  By ruling against the appellees, the AppellateBody had given NGOs the right to make submissions  that had exceeded the rights of Members not
participating in this dispute.  It had thus diminished the rights of Members under the WTO Agreement
in contravention of Article 19.2 of the DSU.  It  had also intruded upon Members' prerogative as
negotiators to establish the bounds of participation in the WTO.  Such issues should be decided by
Members.  The Appellate Body, which was only a judiciary, was in this case writing the rules of
participation with Members standing in judgement of its actions.  This reversal of roles was
anomalous and unforeseen.
The Appellate Body’s decision with respect to the amicus  briefs involved one element which
was not clear.  The Appellate Body had issued a preliminary ruling accepting three amicus  briefs
attached to the US submission from various environmental organisations.  One further brief had been
sent directly to the Appellate Body.  The Appellat e Body had undertaken in its preliminary ruling to
explain the legal basis for its decision to accept this brief.  But this had not been done.  No referencehad been made to this brief in its final decision, de spite a letter sent to the Appellate Body by three
Ambassadors complaining about this preliminary ruling.  The letter had been entirely ignored.   The
Appellate Body did not have the authority nor was entitled within the parameter of the DSU to receive
this amicus  brief.  It had a responsibility to respond to the letter and to discuss its legal grounds for
accepting this brief.  The Appellate Body had not only demonstrated its lack of respect for Membersby accepting this brief without explanation or legal justification.  Furthermore, by ignoring the legal
arguments raised in the letter it had diminished the rights of Members under the WTO Agreement,
while adding unreasonably to the rights of NGOs.  The DSU did not grant the Appellate Body the
right “to seek” information.  Instead, the Appellate Body had arbitrarily assumed this right to the
detriment of the system.
Thailand was also concerned that the “evolutionary” interpretative approach newly adopted
by the Appellate Body was a formula for adding to or diminishing the rights and obligations of
Members.  The WTO Agreement was a finely balanced and carefully negotiated document containing
clear commitments.  It was therefore disconcerting that the Appellate Body had adopted an
interpretative formula that could lead to unpredictable results.  As demonstrated by the results in this
case, this had diminished business confidence an d had affected the interpretation of rights and
obligations of Members in ways which were not contemplated under the WTO Agreement.
With regard to substantive issues, his delegation regretted that the Appellate Body's decision
seemed to be oriented towards political factors at the expense of legal principles.  Unlike the Panel
Report, which had shown great sensitivity to the needs of the multilateral trading system, the
Appellate Body Report had deferred to underlying political concerns.  While the WTO should not
operate in a public relations vacuum, their concerns s hould not be used to invalidate negotiated treaty
obligations.  External factors should not be allowed to destabilise and undermine the balance of rights
and obligations achieved.  It was evident to the complaining parties and to the United States, that this
case could have been resolved on the basis of the chapeau of Article XX.  The US failure to seek a
multilateral cooperative solution to the environm ental problem before implementing a unilateral
solution, had also been cited by the Appellate Body in the Gasoline  case
1.  That case had also been
resolved on the basis of the chapeau of Article XX.  Thailand believed that the Appellate Body’s
analysis of Article XX(g) had not been called for.  While his country supported environmental causes
in general, and acknowledged that the new environmental awareness in the WTO was positive, it was
deeply concerned that given the breadth of the Appellate Body’s decision on Article XX, this case
                                                     
1 WT/DS2AB/RWT/DSB/M/50
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could be viewed as an invitation to unilateral actions instead of encouraging greater multilateral
cooperation on environmental issues.
He wished to draw attention to two other problematic points with regard to the Appellate
Body’s decision on Article XX(g).  First, this decision permitted Members to discriminate against
products based on non-product related processes and production methods (PPMs).  This was a
fundamental and impermissible alteration of the present balance of the rights and obligations of
Members under the WTO Agreement.  Thailand considered that this would result in explosive growth
in the number of environmental, and perhaps labour measures applied to PPMs and justified under
Article XX.  The right to discriminate based on like products had not been negotiated in the Uruguay
Round.  The Appellate Body, upon its own will, had altered the balance of rights and obligations
under the WTO Agreement.
Second, the Appellate Body’s theory of “evolutionary” interpretation had been applied to
render Article XX(b) and the “necessary” test  therein meaningless.  Despite its findings in other cases
with regard to its respect for the principle of “effectiveness”, if the Appellate Body had wished to give
meaning to Article XX(b), it would not have clung to an interpretation of Article XX(g) that rendered
most, if not all of Article XX(b), meaningless.  It was possible that the Appellate Body would soon
conclude that human beings were exhaustible natural resources, if not, animal life would enjoy greaterprotection than humans.  His delegation was gravel y concerned that the Appellate Body’s decision
would have serious systemic implications for the future application of the WTO rules and disciplines.
The decision might have already opened a floodgate of greater abusive use of trade-related
environmental measures in future.  Regrettably, as a result of the Appellate Body's questionable
judgment, the number of trade-related environment disputes was likely to multiply.  Thailand hopedthat in future the Appellate Body would demonstr ate greater sensitivity with respect to the limits
imposed on its jurisdiction, and greater respect for the sensitivity of Members.
The DSU would only be effective if it had Me mbers' confidence.  Confidence in the dispute
settlement mechanism was linked both to the decision-making process and to compliance with the
decisions of the Appellate Body and panels.  Without compliance, the validity and worth of the DSUwould be put into doubt.  Thailand believed that compliance with the Appellate Body’s decision in
this case meant the removal of the US embargo.  The Appellate Body had found that this should be
done prior to any discussions on a multilateral agreement for the protection of sea turtles.  His country
supported this finding and wished that this unilateral shrimp embargo be removed immediately.  If, as
a last resort, trade-related environmental measures were to be imposed, the application of regulatory
schemes to assure due process and the equal treatment of all Members would be required.  Whether
these shortcomings or short-sightedness were unintentional or deliberate, there was a need for them tobe rectified to the benefit and viability of the system.  In order for the system to remain credible,
effective and viable, such a system should not only be able to adjust to an undergoing evolution with
time, but also be objective in its functioning as well as prudent and judicious in assuring due process,
while evading political pressure.  Thus far the dispute settlement mechanism had proven to be the
success of the WTO.  However, its success did not imply that it was without faults or shortcomings.He believed that the ability to address and rectify these shortcomings would enable the system to
achieve greater success.  This matter should be further pursued and seriously examined in the DSU
review.  Thailand joined the consensus in favour of the adoption of the Reports and requested that the
United States bring its measure into full compliance with the Appellate Body’s ruling.
The representative of Pakistan thanked the Appellate Body's members for their time and effort
devoted to this case.  Both the Panel and the Appellate Body had reached the right conclusion that the
measure of the United States prohibiting imports of shrimp and shrimp products from some countries
was inconsistent with its obligations under the GATT 1994.  Pakistan appreciated the fact that the
Appellate Body Report had delved into a broad range of legal and factual issues pertaining to this
case, but was disappointed with the reasoning contained in the Report.  His country was particularlyconcerned about the implications of this Report for the dispute settlement system and the WTO.  ItWT/DSB/M/50
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was also concerned that the Appellate Body had us ed this case as an instrument for extending its
powers beyond those that permitted under the DSU.
Under Article 17.6 of the DSU appeals were limited to issues of law covered in panel reports
and legal interpretations developed by panels.  Furthermore, under Article 19.2 of the DSU, the
Appellate Body was not allowed to add or subtract the rights and obligations of Members provided inthe covered agreements.  He regretted that in both respects, the Appellate Body had exceeded its
authority.  The Appellate Body, by giving a new interpretation to certain DSU provisions had
overstepped the bounds of its authority by undermining the balance of rights and obligations of
Members.  For example, the DSU did not give NGOs the right to submit amicus  briefs or to give
Members permission to attach briefs to their submissions that did not reflect their views.  The  DSU
did not give NGOs greater rights to make submissions than those enjoyed by Members.  The
Appellate Body had disregarded the jurisdictional lim its agreed by Members.  In Pakistan's view, the
"evolutionary" interpretative approach of the Appellate Body was a recipe for adding to and
diminishing the rights and obligations of Members.   The WTO system was based on certain rights
and obligations that had been carefully negotiated in successive rounds of trade negotiations.  These
rights and obligations should be preserved and protected.
The Report raised serious questions concerning the scope of the Appellate Body's authority
and these issues should be addressed in the DSU review.  The Appellate Body had encroached upon
the authority of both Members and negotiators of the WTO Agreement.  Furthermore, it had tried to
expand its authority beyond that mandated to it in the Uruguay Round negotiations.  At the present
meeting, he wished to elaborate on some important  concerns regarding the Appellate Body Report.
First, Pakistan was concerned about the Appe llate Body's increasing power and the selective
enforcement of the DSU provisions.  In this case, the Appellate Body had clearly exceeded its limited
mandate set forth in Article 17 of the DSU to examine issues of law covered in panel reports and legal
interpretations developed by the Panel.  Second, the Panel's factual findings that the United States had
violated the chapeau of Article XX by failing to pursue a cooperative solution before the imposition
of its unilateral embargo had been upheld by the Appellate Body and would have been sufficient toresolve this case.  The Appellate Body did not need to make new and independent findings of the facts
reflected in the footnotes to its decision nor to ex amine Article XX(g).  By examining Article XX(g),
the Appellate Body had opened the door to simila r unilateral actions.  Third, the Appellate Body's
theory of "evolutionary" interpretations to justify its findings that animal life fell within
Article XX(g), had rendered Article XX(b) and the higher standards contained therein meaningless.
The Appellate Body's adoption of the theory of evolutionary interpretations had undermined the
predictability of the dispute settlement system.  Fourth, the logical result of the Appellate Body's
interpretation was to expand Article XX(g) dangerously, thereby opening the door to trade-related
environmental measures that would threaten the viability of other commitments negotiated in the
Uruguay Round.  Members would now appear to have a limitless discretion to invoke Article XX(g)
regardless of jurisdictional and sovereignty considerations and the intent of drafters of the WTO
Agreement.  Effectively, the Appellate Body's decision permitted Members to discriminate againstproducts based on non-product related PPMs.  Finall y, the Appellate Body had also undermined the
authority of Members on issues concerning the participation of NGOs.  Those Members who had
negotiated the DSU were aware that it had never been intended to permit NGOs to submit amicus
briefs to panels and to the Appellate Body.  Pakistan strongly believed that Members, not the
Appellate Body, should determine the extent to  which NGOs might participate in the dispute
settlement process.
His delegation was concerned that the Appellate Body had issued a preliminary ruling
regarding the amicus  brief but had ignored the Appellees' request to make a timely ruling on a more
fundamental issue, namely whether the US notice of appeal had satisfied the DSU requirements.  The
Appellate Body had not only ignored two requests by three Appellees for a preliminary ruling on this
matter, it had also failed to appreciate that its decision on this question should have been made before
the issue of the amicus  brief had been addressed.  Pakistan was committed to the protection ofWT/DSB/M/50
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environment, including the protection of endangered species.  Its environmental protection
programme dated as far back as the 1960s.  However, Pakistan did not believe that the Uruguay
Round Agreement had elevated environmental concerns to the extent raised by the Appellate Body.
His country was concerned that the Appellate Body's decision might lead to more frequent use of
trade-related environmental measures.  Notwithstanding these concerns, Pakistan supported theconclusions of the Appellate Body Report and, like other complaining parties, requested that the DSB
adopt the Report and that the United States bring its measure into compliance with the Appellate
Body's ruling.
The representative of Malaysia welcomed the rulings of both the Panel and the Appellate
Body that the measure of the United States was inconsistent with its obligations under the WTO
Agreement.  It was therefore imperative that this import prohibition be removed immediately and
unconditionally.  In this regard, in paragraph 188 of its Report, the Appellate Body had recommendedthat the DSB request the United States to bring its measure -- the import ban on shrimp and shrimp
products -- found by the Panel to be inconsistent with Article XI of GATT 1994, and found by the
Appellate Body not to be justified under Article XX of GATT 1994, into conformity with its
obligations under the WTO Agreement.  Malaysia expected that the United States would lift its import
ban.  The United States should also, inter alia  eliminate all conditions that had caused the measure to
be applied in a manner that constituted "unjustifiable discrimination" and "arbitrary discrimination"
between countries where those conditions prevailed.   Since May 1996, when the prohibition had
come into effect, Malaysian exports of wild harvest shrimp had ceased.  His country therefore urged
the United States to remove immediately the import prohibition as recommended by the Panel and the
Appellate Body.  The United States, like other Members, had an obligation to bring its laws andpolicies into conformity with its obligations under the WTO Agreement.
A number of issues with regard to the Appellate Body's decision had raised systemic
questions and should therefore be addressed by Members in order to preserve the credibility of the
dispute settlement mechanism.  In particular, Malaysia was concerned about the issue of amicus briefs
submitted by NGOs wh ich had been raised on two occasions in this dispute.  First, during the Panel
proceedings on 28 July 1997 when the Panel had received a brief directly from the Center for Marine
Conservation (CMC), the Center for International Environmental Law (CIEL) and the World Wild
Fund for Nature (WWF) on 16 September 1997, with similar copies to the complainants.  For the
second time this matter had been raised during the Appellate Body proceedings  when the United
States had attached to its submission of 23 July 1998, three Exhibits: i.e., amicus  briefs from three
groups of NGOs (paragraph 79 of the Appellate Body Report).   In addition, on 3 August 1998, CIEL
had sent a revised version of its brief directly to the Appellate Body.
Malaysia considered that the legal reasoning of  the Appellate Body in paragraphs 99 to 110 of
its Report was flawed.  In paragraph 101, the Appellate Body had stressed two basic legal
propositions:  (i) only Members had access to the dispute settlement process of the WTO and not
individuals or international organizations whether governmental or non-governmental;  and (ii) only
Members who were parties to a dispute or third parties had a legal right to make submissions, and hada legal right to have those submissions considered by a panel.  It was therefore difficult to understand
the Appellate Body's interpretation that NGOs which were not parties or third parties to the dispute,
could make submissions to the Panel or the Appellate Body in the form of amicus  briefs.  In
particular, after the Appellate Body had stated that the first issue of appeal -- whether the Panel had
erred in finding that accepting non-requested information from NGOs would be incompatible with theDSU provisions -- raised by the appellant "is mo st appropriately addressed" by examining what a
panel was authorized to do under the DSU.   Th e term "most" implied that the two basic legal
propositions mentioned above should be taken into consideration by the Appellate Body.
In its examination of what the panel was authorized to do under the DSU, the Appellate Body
had referred to Article 13 of the DSU.  It had recognized that the Panel, based on Articles 12 and 13of the DSU, had "ample and extensive authority to undertake and to control the process by which itWT/DSB/M/50
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informs itself both of the relevant facts of the dispute and of the legal points and principles applicable
to such facts" (paragraph 106).   Then the Appellate  Body had stated that it believed that "…the word
'seek' "must not necessarily be read in too literal a manner as the Panel did".   In order to substantiate
this point, the Appellate Body had referred to a hypothetical case in paragraph 107, which in
Malaysia's view was far-fetched, because an individual or a body would never ask a panel forpermission to file a statement or a brief if the two basic legal propositions had been taken into
account.  The Appellate Body's view that the di stinction between "requested" and "non-requested"
information vanished was untenable.  It should not be permitted for NGOs to submit amicus  briefs
directly to a panel.  Malaysia requested that the DSB adopt the Report at the present meeting and that
the import ban on shrimp and shrimp products be lift ed immediately by the United States.   He wished
to join previous speakers in requesting that the A ppellate Body's failure to act within the bounds of its
jurisdiction be examined during the DSU review.
The representative of India said that the issues raised in both Reports were of fundamental
importance to WTO law since they concerned Articles XI and XX of GATT 1994.  The  findings of
the Panel and the Appellate Body had impinged on the crucial relationship between trade and
environment,  a matter that was the subject of ongoing debate and discussion in the WTO.  India waspleased with the final outcome of this dispute, namely that the US measure had been found to be
inconsistent with the WTO rules.  His country's main concern related to the manner in which the
Appellate Body had treated the dispute and had arrived at some untenable conclusions based on its
flawed reasoning.  He requested that India's views be fully recorded in the minutes of the meeting in
accordance with Article 16.3 of the DSU.
The Panel Report had stated in no uncertain terms that the US measure was in violation of
Article XI:1 of GATT 1994.  Since this issue had not been raised before the Appellate Body, this
Panel's finding had been accepted by the appellant.  The Appellate Body had recommended that the
DSB request the United States to bring its measure found by the Panel to be inconsistent withArticle XI of GATT 1994 into conformity with it s obligations under that agreement.  India fully
supported this finding of the Panel as endorsed by the Appellate Body and expected that the United
States would comply with this unequivocal recommendation.
The Panel had emphatically stated, based on sound legal reasoning, that accepting non-
requested information from non-governmental sources would be incompatible with the DSU
provisions.  It had explained that the initiative to seek information and to select the source ofinformation rested with the Panel, and the Panel alone.  It had stated  that only the parties to the
dispute and third parties could submit information directly to panels.  His delegation fully agreed with
the Panel's reasoning on this matter.  However, India believed that the Panel had erred in prompting
the parties to the dispute, at the end of the second hearing, to consider submitting documents sent to
the Panel by NGOs as their own submissions.  Panels  were not expected to influence parties as to
what should or should not form part of their su bmissions.  In doing so, the Panel might have acted
inconsistently with both the letter and spirit of the DSU.
The Appellate Body had reversed the Panel's finding that accepting non-requested
information from NGOs was incompatible with the DSU provisions.   However, the Appellate Body'sfindings and conclusions on this issue had not been based on sound legal reasoning but on its belief
that the word "seek" in Article 13 of the DSU had been read by the Panel in too literal a manner.
India disagreed with this reasoning.  The Panel had interpreted the word "seek" in Article 13 of the
DSU fully in  accordance with the general rule of  interpretation of the Vienna Convention on the Law
of Treaties: i.e., that a treaty shall be interpreted in good faith in accordance with the ordinarymeaning to be given to the terms contained ther ein.  The word "seek", in its ordinary meaning,
implied a pro-active search on the part of the subject, which in this case was the Panel.  Therefore, the
right for the Panel to seek information which was different from NGOs having the unimpeded right to
submit information to panels.  The Appellate Body had alleged that the Panels' reading of the word
"seek" was too formal and technical.   His delegation considered it unusual that the Appellate BodyWT/DSB/M/50
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had stated this, because the discipline of law was both formal and technical,  and the WTO constituted
a forum in which legally binding commitments had been undertaken by Members.  He wished to point
out that the Appellate Body had blurred the distinction between a request for information (i.e, to seek)
and acceptance or rejection thereof which both, logically and legally, represented two different steps.
When the DSU referred to "seeking" this implied the first step.   It was obvious that information first
sought by a panel could later be accepted or rejected.  While the Panel had the right to accept or reject
information, it was incorrect to reason like the Appellate Body that it did not matter whether
information had been specifically sought or not.  If the contention of the Appellate Body was correct
then the word would not have been "seek".  India,  therefore, believed that the Appellate Body might
have interpreted one of the important provisions of DSU loosely and wrongly, which could upset the
balance of rights and obligations of Members.  It was India's  understanding that the DSU negotiators
had never envisaged a situation under which non-Members could send unsolicited information to apanel, much less a situation in which a panel would acknowledge such unsolicited information.
He drew attention to the Appellate Body's ruling on the admissibility of the briefs by NGOs
appended to the US submission.  The Appellate Body had first issued a preliminary ruling that it had
decided to accept for consideration, insofar as they might be pertinent, the legal arguments made bythe various NGOs in the three briefs attached to the appellant’s submission as well as the revised
version of one particular NGO brief sent directly to  it.  Subsequently, the Appellate Body had asked
the United States to what extent it agreed with the legal arguments set out in the briefs appended to its
submission.  The United States had, inter alia, stated that (i) it was not adopting these views as
separate matters to which the Appellate Body had to respond;  and (ii) it agreed with the legalarguments in the NGOs' submissions to the extent that those arguments concurred with its arguments
set out in its main submission.  The US position with regard to the annexes to its own submission had
been far from unequivocal.  However, the Appellat e Body had decided to take into account these
briefs prior to being informed of the US approach.  India was concerned that in taking into account
these briefs, the Appellate Body had acted without proper authority.  Furthermore, the Appellate Body
had not responded to the objections raised by the Appellees with regard to its preliminary ruling
which had rendered the Appellate Body to assume,  at least partly,  the role of the Appellant.
The  Panel had made a clear and unambiguous finding that the US measure was not within the
scope of measures permitted under the chapeau of Article XX.  After the burden of proof had been
placed on the United States as a party asserting the affirmative defence, the Panel had interpreted the
chapeau of Article XX in accordance with the Vienna Convention.   India believed that the Panel wasright in examining the object and purpose of the WTO Agreement as well as the context of the term
"unjustifiable".  The Panel was also right in interpreting Article XX narrowly,  and in stating that if
Article XX were interpreted to permit countries to take trade measures so as to force other countries to
change their policies within their jurisdiction, the balance of rights and obligations of Members would
be seriously impaired.  The Panels' reasoning was irreproachable when it had found that a measurecould not be considered as falling within the scope of Article XX if it was so operated as to affect
other government’s policies in a way that threatened the multilateral trading system.  The Panel had
further explained that if the interpretation of the chapeau of Article XX  were to be followed, which
would allow a Member to adopt measures conditioning access to its market for a given product upon
the adoption by the exporting Members of cert ain policies, then GATT 1994 and WTO would no
longer serve as a multilateral framework for trade among Members because the security and
predictability of trade relations under those agreements would be threatened.  If one Member were
allowed to adopt measures similar to the US measure, then other Members would have the equal right
to adopt such measures with different or even conflic ting requirements.  If this were to be taken to its
logical conclusion this would lead to the end of the multilateral trading system.  Finally, the Panel hadreferred to incontrovertible evidence that there was a broad  preference for internationally negotiated
multilateral environmental agreements over unilateral measures  such as the one taken by the United
States.  India fully shared both the Panel's legal reasoning and its findings in this regard.WT/DSB/M/50
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The Appellate Body had reversed the Panels' fi nding that the US measure was not within the
scope of measures permitted under the chapeau of Article XX.  In doing so, the Appellate Body had
suggested that the Panel had not followed all the steps in its application of the customary rules of
interpretation of public international law.  India believed that the Panel had interpreted the words in
the chapeau in accordance with the ordinary meanin g in the light of the object and purpose of the
treaty involved.  The Appellate Body had faulted the Panel for failing to scrutinize the immediate
context of the chapeau and for not examining the object and purpose of the chapeau of Article XX.
However, India believed that the Appellate Body might have erred in its application of the Vienna
Convention.  First, the context in accordance with Article 31 of the Vienna Convention was the text,
preamble and annexes of the Treaty (Agreement) as a whole.  Also, the object and purpose referred to
in the Vienna Convention would appear to apply to the whole Treaty (Agreement) rather than specific
parts thereof, as suggested by the Appellate Body.  It is difficult to deny that the object and purpose ofGATT 1994 (of which Article XX was an integral part) was the smooth functioning of the multilateral
trading system.  Article XX was a limited and cond itional exception to GATT 1994.  It could not have
an overarching object and purpose as suggested by the Appellate Body.   If this was true, almost any
measure taken by a Member could be justified under Article XX.  This certainly was not the intention
of the drafters of this Article.  His delegation, therefore, believed that the Panel was right inexamining the US measure vis-à-vis its impact on the multilateral trading system.
The Appellate Body had faulted the Panel for following the wrong sequence i.e, proceeding
from the chapeau rather than first examining the US  measure vis-à-vis the paragraphs (b) or (g) of
Article XX.  The Appellate Body had stated that the "appropriate method" had been suggested in the
Gasoline  case through the two-tiered approach.  First, provisional justification of the measure through
the provisions (a) to (j) of Article XX; and second, appraisal of the same measure under the chapeau
of Article XX.  However, the Appellate Body had previously stated that each case had to be
considered on its own merit and on an individual basis.  It therefore seemed unusual that a strait-
jacket approach had to be advocated by the Appellate Body with respect to all cases involvingArticle XX.  He noted that in its submission, the United States had not objected to the Panel's
approach of proceeding from the chapeau and that during an oral hearing, the United States had not
seriously questioned the Panel's methodology.
The Appellate Body had then proceeded to exam ine an issue not considered by the Panel; i.e,
the US measure vis-à-vis Article XX(g).  It had justified this as it had to complete the legal analysis
not done by the Panel.  The Appellate Body's decision could be questioned both on the grounds ofjudicial economy -- a concept expounded by the Appellate Body -- and whether there was a need to
do this in this case.  With regard to the issue of lack of justification of the US measure vis-à-vis the
chapeau of Article XX, the Appellate Body had reached the same conclusion as the Panel.  He drew
attention to the fact that in the Salmon  case, the Appellate Body had refrained from making new
factual findings on a sanitary and phytosanitary issue, in the absence of factual findings made at thePanel level and/or facts that were not disputed by the parties.  The same logic could have guided the
Appellate Body in this case.  In stead, the Appellate Body had decided to examine the US measure vis-
à-vis paragraph(g) in Article XX.  In so doing, the Appellate Body had made the point that the words
of Article XX(g) "exhaustible natural resources" had been crafted more than 50 years ago and that
they should therefore be read by a treaty interpreter in "the light of contemporary concerns of thecommunity of nations about the protection and conservation of the environment".  This notion
expounded by the Appellate Body based on its evolutionary approach to interpretation was dangerous
and not agreed by Members.  Reference to "contemporary concerns" to justify a changed
interpretation of the words "exhaustible natural resources" had amounted to either an amendment or
an authoritative interpretation of the existing agreement which could only be done by Members.  TheAppellate Body had acknowledged this fact in its report  on "US-Measure Affecting Imports of
Woven Wool Shirts and Blouses from India".  In  that report the Appellate Body had noted that
Article IX of the WTO Agreement provided that the Ministerial Conference and the General Council
had the exclusive authority to adopt interpretations of the WTO Agreements.  Therefore, in theWT/DSB/M/50
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present case, India believed that the Appellate Body had clearly overstepped its authority and its
mandate under the DSU.
Furthermore, Members taking measures under Article XX preferred paragraph (g) to (b)
thereof.  This was due to the "necessity" test in corporated in paragraph (b) which was difficult to
meet.   This explained the  US preference for assessing its measures pursuant  to Article XX(g).  The
Appellate Body had found that the US measure was made effective in conjunction with domestic
restrictions, as required by Article XX(g).  But in doing this, the Appellate Body had expanded the
scope of  paragraph (g) well beyond the intention of its drafters.  If the present decision of the
Appellate Body were deemed applicable to all futu re measures, then the door would open to unilateral
measures aimed at discrimination based on non- product related PPMs.  This decision had the
unfortunate effect of rendering paragraph (b) of Article XX totally redundant and meaningless whichhad not been intended either by the original drafters or the Uruguay Round negotiators.  While the
Appellate Body had taken considerable efforts to  explain why it had considered the US measure as
falling within the scope of Article XX(g), it had no t responded to the point of the appellees that if
animal life were deemed to fall both within Article XX(b) and XX(g), most of Article XX(b) would
be rendered meaningless.
He noted that the Appellate Body had cited the Preamble to the WTO Agreement which
included references to environmental protection and sustainable development and had asserted that
this should "add colour, texture and shading" to its interpretation of WTO Agreements.  He underlined
that the very next paragraph in the preamble referred to a "need for positive efforts designed to ensurethat developing countries and especially the least developing among them, secure a share in the
growth in international trade commensurate with the needs of their economic development".  India
hoped that future panels and the Appellate Body would ensure that this preambular provision also
added "colour, texture and shading" to their interpretation of special and differential treatment
provisions of various WTO Agreements.
His delegation shared the concern expressed by some other delegations that the Appellate
Body had not appeared to have adequately dealt with the issue of the notice of appeal.  His delegation
believed that the Appellate Body had acted out of political considerations and had strayed away from
an objective consideration of issues of law.  Th e Appellate Body had been established under the DSU
as the supreme judicial authority of the WTO with the specific mandate to examine issues of law
contained in panel reports and to review legal interpretations developed by panels.  The AppellateBody was an organ of the DSU and not vice versa.  It appeared that by this approach the Appellate
Body had transcended the strict boundaries of law and had entered into the political domain strictly
preserved for Members.  With regard to amicus  briefs, the Appellate Body had appeared to have let
itself to be overawed by the campaign of NGOs of major trading entities.  India had consistently
maintained that NGOs had a useful role to play in their respective countries but in the WTO, whichwas characterised by a contractual relationship between governments, NGOs could not have a direct
role and could not be accorded privileges greater than those enjoyed by Members, as the Appellate
Body had done in this case.  The Appellate Body had an important role, but if it exceeded its mandate
and authority under the DSU, like in this case, this w ould have the effect of adding to or diminishing
the rights and obligations of Members under the various Agreements.  This would not be in theinterest of either Members or the dispute settlement mechanism.
He wished to reiterate India's firm and irrevo cable commitment to the goals of environmental
protection and sustainable development.   However, his country believed that it was up to Members
and not within the mandate of the Appellate Body to try to meet environmental concerns.   In thisregard, important work was currently underway in the Committee on Trade and Environment (CTE).
For many centuries,  the essential harmony between the environment and the man had been a central
precept in Indian society.  India had a well-est ablished history of protecting endangered species,
including sea turtles.  In his country's view, environmental concerns were best met through
internationally negotiated multilateral environmen tal agreements, rather than by unilateral tradeWT/DSB/M/50
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measures such as the US measure in this case.  I ndia expected the United States to fully comply with
the recommendations of the Panel and the Appellate Body in order to bring its measure into
conformity with its obligations under the WTO Agreement.  He expressed his country's appreciation
for the work of the Panel and the Appellate Body and for the assistance of the Secretariat.
The representative of the United States said that her country had appealed the Panel's findings
regarding the application of Article XX to the US shrimp-turtle law and the discretion of panels under
the DSU to accept information that had not been requested.  The United States was pleased that the
Appellate Body both had reversed the Panel's analysis of Article XX in its entirety, and had found that
nothing in the DSU limited the ability of panels to accept and consider non-requested information,
including amicus curiae  briefs.  The Appellate Body had found no inconsistency between the United
States' legislation and its WTO obligations.  However, it had found fault with certain aspects of theadministration of the law.  The United States disagreed with the Appellate Body's conclusion that the
administration of the law constituted arbitrary and unjustifiable discrimination.  However, the
Appellate Body had also made a number of importa nt and positive findings that helped clarify the
critical relationship between WTO rules and measures taken to protect the environment.  With these
considerations, the United States could agree to the adoption of the Appellate Body Report.  At thepresent meeting, she wished to underline a number of  important findings made by the Appellate Body.
The Appellate Body had found that the Panel had erred in creating a test for excluding certain
measures from the scope of Article XX that had no basis in the text of the Article and had rejected the
Panel's findings that measures encouraging exporting countries to comply with certain policies werea priori incapable of justification under Article XX.  In its analysis, the Appellate Body had
underlined the importance of the interpretation of the WTO Agreement of the Preamble's emphasis on
the goal of supporting sustainable development, including the protection and preservation of the
environment.  Applying this approach with respec t to Article XX(g), the Appellate Body had agreed
with the United States that Article XX(g) applied to renewable biological resources, and was notlimited, as complainants had claimed, to depletable mineral resources.  It had also found that the US
shrimp-turtle law, by encouraging exporting countries to adopt sea turtle conservation programmes,
was directly connected with the policy of sea turtle conservation, and thus was a measure "relating" to
conservation.  It was also of considerable significance that the Appellate Body had not accepted the
complainants' argument that some sort of jurisdictional limitations would prevent the use of
Article XX(g) with respect to the measures in question.  The United States was pleased that the
Appellate Body had emphasized that Article XX had to be "read by a treaty interpreter in light ofcontemporary concerns of the community of nations about the protection and conservation of the
environment."
For these reasons, the United States believed that the Appellate Body Report had far-reaching
importance with respect to the evolving relationship between the WTO rules of trade andenvironmental conservation measures adopted by Members.  Throughout this dispute settlement
proceeding, all parties to the dispute had emphasized the importance they attached to the protection of
sea turtles, recognized internationally as being threatened with extinction.  The United States
appreciated this and hoped that it would be possible to build upon it to work together in addressing
this critical conservation issue effectively and comprehensively.  In this regard, her country welcomedthe Appellate Body's statement that sovereign states could and should "adopt effective measures to
protect endangered species, such as sea turtles."
The representative of the European Communities said that his delegation, which had
participated in the proceedings of the Panel and the Appellate Body as a third party, welcomed the
Appellate Body Report.  At the present meeting, he did not wish to enter into details regarding the
various legal points addressed and clarified by the Appellate Body.  He would only stress that the
Appellate Body had given important guidance on how Article XX should be understood and used
when dealing with environment and conservation related measures, thereby shedding some light on
the scope for the use of those measures in relation to the WTO rules.  The Community was pleasedWT/DSB/M/50
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that the Appellate Body had not only implicitly upheld  the EC's suggestion to read the chapeau in the
light of a "reasonable" test, but had also confirmed what constituted a proper relationship between the
chapeau and the subparagraphs in Article XX.
With  regard to environmental and conservation problems, the Community strongly supported
the Appellate Body's reasoning which encouraged Members to make genuine efforts to reach
negotiated solutions.  This had consistently been the EC's approach.  This reasoning had inspired the
EC suggestions to further clarify the relationship between the trade provisions in Multilateral
Environmental Agreements (MEAs) and WTO rules as a disincentive to unilateral action in the
environmental and conservation area.  The Community believed that this ruling provided important
legal clarification and guidance to those wishing to take measures for the protection of the
environment or for conservation purposes, which required respect for Article XX of GATT 1994.  TheCommunity hoped that the ruling of the Appellate Body would create momentum for an open, frank
and non-polarised discussion on the relationship between environment-related measures and WTO
rules.
The representative of Brazil said that his delegation wished to make a statement at the present
meeting since it believed that the DSB was an appropriate forum to discuss the function of the dispute
settlement mechanism.  It was well-known that in practice any decision of a panel or the Appellate
Body with regard to a specific case would go beyond such a specific case.  Although no binding
precedents had been created, the findings and conclusions of panels and the Appellate Body adopted
by the DSB had created expectations concerning future interpretations of the DSU and the WTOAgreement.  Therefore, in light of these systemic implications of decisions and recommendations
pertaining to a specific case, Brazil wished to state its position with regard to certain findings of the
Appellate Body.  His delegation was exercising the right under Article 17.14 of the DSU, that the
adoption procedure was without prejudice to the right of Members to express their views on an
Appellate Body report.
Brazil wished to refer to the Appellate Body's interpretation of Article 13 of the DSU.  This
interpretation had modified the Panel's correct decision which had dealt appropriately with this issue.
In Brazil's understanding, the terms of Article 13 of the DSU were very clear.  It was up to a panel,
solely on its own initiative, to seek additional inform ation to that already provided by the parties and
the third parties to the dispute.  The panel decide d where to seek information and what information
was required.  He underlined that there was nothing new in this interpretation of Article 13 of theDSU, and Brazil had stated the same position an d its concerns at the DSB meeting on 25 September
1997 with regard to an amicus brief sent by the WWF to the panel and to several Heads of Delegation.
This position had also been expressed by Brazil in the consultations on the Agreement between the
WTO and the IMF.
Brazil did not believe that the word: "to seek" and its Spanish and French translations,
"recabar" or "demander" was equivalent to the word: "to accept", "aceptar" or "accepter".  This was
not a faithful interpretation of the simple and clear terms of the Agreement.  In Brazil's view this still
applied even beyond an interpretation which the Appellate Body had characterized as too literal and
unnecessarily formal and technical, and had considered the context and purpose of Article 13 of theDSU.  As stated by the Panel, "Accepting non-requested information from non-governmental sources
would be, in our opinion, incompatible with the provisions of the DSU as currently applied."
(paragraph 7.8).  The fundamental issue was not the nature of the information or the source of the
information received by the Panel.  The essential point was the consequence of the Appellate Body's
finding.  In Brazil's view, the interpretation of th e Appellate Body had placed on the Panel the burden
of explaining why it had considered that a particular piece of information it had received which had
not been requested was relevant while another, also not requested, was irrelevant.  As stated by the
Appellate Body, in this task of trying to sort ou t a large number of unsolicited information, the Panel
might deviate its attention from the issues of the case and incur in a violation of its jurisdiction
beyond its terms of reference.  Brazil believed that it would not be just to place this burden on theWT/DSB/M/50
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Panel.  His country did not consider that the "ample and extensive authority" of the Panel, which was
necessary for it to exercise its functions adequately would be affected by a literal interpretation of the
terms of Article 13 of the DSU.  On the contrary, it would be preserved.  As stated by the Appellate
Body, " a panel's authority includes the authority to decide not to seek  such information or advice at
all" (paragraph 104).  This did not mean that Article 13 could not be modified.  It was another matterif in the context of the DSU review Members decided to change the DSU provisions.  This issue was
still open and it would be up to Members through the collective judgement to assume the political
responsibility of such a juridical innovation.  The standard of interpretation in the DSU was that of
strict interpretation.  As stated in Article 3.2 of the DSU, the aim of this strict interpretation was to
preserve the rights and obligations of Members.  Therefore, decisions and recommendations of the
DSB "could not add to or diminish the rights and obligations provided in the covered agreements."
The representative of Australia said that this dispute had generated considerable public
interest and there was a great need for a balanced consideration of the issues involved.  Australia,
which had participated in this dispute as a third party, had direct trade interests in access to the US
shrimp market.  At the same time, it recognized the significance of the findings of the Reports for
discussions on the relationship between the WTO rules and environmental policies.  It would beunfortunate if this case was represented as evidence of a conflict between trade and environmental
objectives.  A careful analysis of the issues had demonstrated that this was not so.  The Appellate
Body's findings did not call into question the legitimacy of the environmental objectives of protecting
sea turtles involved in the US measure.  The Appellate Body's findings had affirmed that such an
objective could be accommodated under Article XX of GATT 1994.  In particular, the AppellateBody had affirmed that the WTO rules appeared to be compatible with the Rio Declaration's emphasis
on the importance of international cooperation to address transboundary and global environmental
problems.  The findings had confirmed that a key consideration in the determination of the existence
of unjustifiable discrimination under Article XX was whether cooperative approaches had been
pursued, or whether a measure reflected a unilateral, non-consensual approach to addressing theenvironmental problem of concern.  In this respect, the WTO rules seemed to strongly reinforce the
importance of intergovernmental dialogue on global and transboundary environmental problems.
This was a key ingredient in avoiding unnecessary or inappropriate trade-restrictive measures.
The Appellate Body's findings had also highlighted the importance of basic fairness and due
process, and appropriate flexibility in the administration of any measure that was to meet the
requirements of Article XX.  This was a significant guiding principle which deserved carefulattention.  Strict adherence to this principle could play a major role in promoting mutually supportive
trade and environment policies.  Article XX contained a set of carefully constructed legal texts.  Their
application in this case indicated their continuing robustness.  The Appellate Body's finding had
pointed to some important aspects of these tests which deserved further consideration.  He reiterated
that the overriding issue in this case was the means used to advance the environmental objectives.The findings highlighted important considerations that should guide Members in designing measures
that complied with the requirements of Article XX.
The representative of Mexico said that, like other Members, his country welcomed the overall
outcome of the Appellate Body Report.  Mexico considered that it was correct to reach the conclusion
that the measure imposed by the United States was incompatible with Article XI:1 of GATT 1994 and
that it was not included among the general exceptions provided for in Article XX of GATT 1994.  It
also considered that the Appellate Body had righ tly recommended that the United States bring its
measure into conformity with its WTO obligations.  Mexico shared the concerns expressed by
Thailand, Pakistan, Malaysia and India.  In particular, his country was concerned about threeconclusions of the Appellate Body.  First, the conclusion that "exhaustible natural resources" within
the meaning of GATT Article XX(g) included living species threatened with extinction.  In Mexico's
view, this interpretation was contrary to the letter and spirit of that sub-paragraph, and the Appellate
Body had overstepped its authority in a manner that was damaging to the dispute settlement system.
Second, Mexico was concerned about the Appellat e Body's interpretation with regard to PPMs.WT/DSB/M/50
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Members might now impose restrictions based on PPMs that were not related to a product.  Third,  the
Appellate Body's conclusion with regard to the role of NGOs had represented a great danger for future
dispute settlement cases.  The Appellate Body's findings, in particular in paragraphs 107 to 110 of its
Report, that non-requested information might be included in the dispute, was contrary to the DSU
provisions and had paved the way for diverse groups not related to the WTO to become activeparticipants in proceedings, with the result that cases would be discussed at a political level at the
expense of argumentation of a legal nature.  Mexico wished to join in the consensus in favour of the
adoption of the Appellate Body Report.  However, in view of the systemic concerns expressed at the
present meeting, his country wished to request that Members take the necessary steps to avoid any
distortion of the nature of the matters referred to the dispute settlement system.
The representative of Switzerland said that her delegation welcomed the Appellate Body
Report.  She noted that the Appellate Body had upheld the Panel's conclusion that the US measure
aimed at prohibiting imports of shrimps from certain states was not consistent with the WTO rules.
The significance of this decision was clear since it reiterated the importance of the respect of the
fundamental principle of non-discrimination of tr ade measures.  The Appellate Body's decision had
demonstrated several interesting elements.  First, in order to interpret Article XX of GATT 1994, theAppellate Body had decided to foll ow the approach developed in the Gasoline  case.  The method of
interpretation which had been applied had a dual advantage.  It had respected the structure and
underlying logic of Article XX and had abided by the rules of the interpretation of international
treaties.  The interpretation of Article XX by the Appellate Body had provided some useful
interpretative aspects concerning the amount of freedom for Members in ensuring conservation ofexhaustible natural resources.  In particular, her delegation welcomed the fact that the Appellate Body
had specifically referred to international environmen tal legislation in reaching its conclusion that sea
turtles were exhaustible natural resources in the sense of Article XX(g) and  therefore they were
covered by special measures of protection.  This openness had demonstrated that the multilateral
trading system was not closed with regard to other legal regulations at the multilateral level.
The representative of the Philippines wished to state his country's position on the Appellate
Body Report.  The Philippines agreed with the methodology adopted by the Appellate Body, namely
(i) provisional justification by reason of characterization of the measure under the exceptions
specified under Article XX;  and (ii) if necessary, further appraisal of the same measure under the
introductory clauses of Article XX.  The Appellat e Body had found that the US measure fell within
the exceptions specified in Article XX, in particular paragraph (g) thereof relating to the conservationof exhaustible natural resources.  The Appellate Body  had found it necessary to refer to international
conventions and declarations such as the 1982 UN Convention on the Law of the Sea, the Resolution
on Assistance to Developing Countries and the C onvention on the Conservation of Migratory Species
of Wild Animals.  However, treaties and declarations entered into, or formulated in other international
forums were not part of WTO law.  Members were subject to the provisions of the WTO law and thecustomary rules of international law.  These treaties and declarations did not constitute part of
customary international law.   Members might have obligations under those treaties and declarations
in other international forums but not in the WTO.  The Philippines believed that, by referring to those
treaties and declarations, the Appellate Body had not taken into consideration the basic customary
international law principle of pacta sunt servanda .  The body of international treaties did not
constitute one single code of conduct, they were instead an accumulation, each treaty separate and
independent from the other.  It might seem that environmental concerns had been advanced as a result
of the Appellate Body's findings.  However, closer examination would suggest the opposite.
Members would now act more prudently in assuming  new commitments in other international forums
because of their possible implications for the WTO.  In the Philippines' view,  the Appellate Body'sfindings would not serve environmental concerns and could have long term adverse effects on such
concerns.  The Appellate Body, having decided to examine the issue of the exceptions specified in
Article XX should have also examined Article XX(b) in relation of Article XX(g).  However, it had
failed to do so.  Thus, even assuming that human beings, plants and animals were exhaustible natural
resources, Article XX (b) provided a specific rule in  the context of the totality of the exceptions underWT/DSB/M/50
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Article XX.  In this regard, the disciplines of the SPS Agreement should have been applied.  At this
stage, the Philippines did not wish  to further elaborate on this matter.
The representative of Hong Kong, China said that his authorities attached great importance to
the objectives of sustainable development and the protection of endangered species including sea
turtles.  However, he could not agree that these objectives should be achieved through unilateral
measures in breach of the WTO rules, like the US measure examined in this case.  Hong Kong, China
had participated as a third party in the proceedings of the Panel and the Appellate Body.  His
delegation welcomed the Appellate Body's recommendations that the United States should be
requested to bring its measure, which had been found to be inconsistent with Article XI of GATT
1994 and was not justified under Article XX of GATT 1994, into conformity with its obligations
under the WTO Agreement.  In its 1996 report, the CTE had endorsed and had supported multilateralsolutions based on international cooperation and consensus as the best and most effective way for
governments to deal with environmental problems of a transboundary or global nature.  Hong Kong,
China reaffirmed its commitment to such solutions a nd was prepared to work constructively with all
governments including the United States towards their achievement.  Many aspects of the Appellate
Body Report merited further consideration by Members in the CTE or other appropriate WTO bodies.Hong Kong, China wished to highlight some of the key findings in the Report which it believed had
important systemic implications for the WTO.
First, Hong Kong, China was pleased that the Appellate Body had recognized that the WTO
rules and multilateral environmental solutions could be complementary.  In particular, it hadunderscored the importance of all economies acting together bilaterally, plurilaterally or multilaterally
either in the WTO or in other international forums to protect the endangered species and the
environment.  However, the Appellate Body had not addressed the crucial question of under what
circumstances and against what criteria the use of trade pursuant to MEAs might be regarded as fully
consistent with the WTO rules.  Future panels might still have to rely on their own judgment andconsider each case on its own merit having regard to the relevant factors and circumstances.
Hong Kong, China considered that this important issue should be further discussed in the CTE and/or
other appropriate WTO bodies.
Second, Hong Kong, China welcomed the guidan ce provided by the Appellate Body on the
legal interpretation of the chapeau of Article XX of GATT 1994.  He noted that in applying the legal
interpretation to the facts of the case, the Appellate Body had had regard to a number of relevantconsiderations, including the need to consider available alternatives, to ensure basic fairness and due
process of administration of the measure, and to identify and reach multilateral solutions.  Hong
Kong, China agreed with the Appellate Body that a balance had to be struck between the right of a
Member to invoke the exception under Article XX and the duty of that Member to respect the treaty
rights of other Members, and that the language of the chapeau made clear that each of the sub-paragraphs of the Article was a limited and conditional exception from the GATT obligations.  The
usefulness of the notion of a moving line of equilibrium would be further tested in future disputes
involving this Article.
Third, his delegation noted and respected the Appellate Body's ruling that exhaustible natural
resources, whether living on or non-living, might fall within Article XX(g).  That ruling was however
at variance with the view taken by Hong Kong, China and many other Members in the light of its
understanding of the customary rules of interpretation of public international law.  One consequence
of the ruling was that sub-paragraphs (b) and (g) of Article XX would be overlapping in coverage
notwithstanding that their legal requirements were different ("necessary" versus "relating to").
Finally, his delegation welcomed the fact that the Appellate Body had not questioned that
under the DSU only the parties to the dispute and third parties had the legal right to make submissions
to, and have their submissions considered by panels and the Appellate Body.  His delegation had also
noted the guidance provided by the Appellate Body on the interpretation and application of Article 13WT/DSB/M/50
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of the DSU pertaining to submissions by NGOs.  While Hong Kong, China reluctantly agreed that
panels should in general have the discretion to accept or reject non-requested information, it was
concerned that the ruling might open up the floodgate of non-requested submissions which would in
turn have serious implications on the work of future panels in terms of workload and efficiency.  His
delegation considered that the issue should be thoroughly and carefully considered by the DSB in thefuture.  In doing so, Members should be mindful of rendering NGOs any treatment which was more
favorable than that of Members and the rule-based and inter-governmental nature of the WTO.  Hong
Kong, China's efforts to protect sea turtles went beyond the enforcement of domestic legislation to
give effect to the requirements of Convention on International Trade in Endangered Species of Wild
Fauna and Flora (CITES).  In September 1998, his Government had successfully released back to the
sea 70 baby Green Turtles (one of the species of the US measure aimed to protect artificially
incubated and hatched)
2.  Being a small and highly urbanised city, Hong Kong, China's contribution
to global conservation efforts might not be very significant but nonetheless spirited and determined.
His delegation supported the adoption of the Appellate Body Report in accordance with Article 17 of
the DSU and looked forward to contributing to the surveillance of the implementation of the
Appellate Body's recommendations in future DSB meetings.
The representative of Japan said that the objective of trade liberalization pursued by the WTO
together with the legitimate efforts for environmental protection, including the protection of
endangered species should be mutually supportive.  Japan demonstrated this position through the
efforts towards its work carried out by the CTE such as the guideline for interpreting of Article XX.
Japan also believed that the Panel in its conclusions should take into account all the relevantinformation.  Japan was concerned about some legal arguments in the findings and rulings of the
Appellate Body in this case.
Japan did not agree with the Appellate Body's finding that "the Panel erred in its legal
interpretations that accepting non-requested information from non-governmental sources isincompatible with the provisions of the DSU" (paragraph 110).  His country did not share the
Appellate Body's view that the "a uthority to seek information [under Article 13.1 of the DSU] is not
properly equated with a prohibition on accepting information which has been submitted without
having been requested by a panel.  A panel has the discretionary authority either to accept and
consider or reject information and advice submitted to it, whether requested by a panel or not."
(paragraph 108).
The Appellate Body also found that "[t] he amplitude of the authority vested in panels …..
makes clear that a panel will not be deluged, as it were, with non-requested material, unless that panel
allows itself to be so deluged" (paragraph 108).  Japan did not agree.  The Appellate Body's findings
with regard to non-requested information, if accepted, could lead to a deluge in the submission of
information at various stages of the panel proceedings.  If the Appellate Body's ruling were to befollowed, the panel would be obliged to present reasons for its rejection of information.  The
Appellate Body had stated that a panel might re ject information on the grounds of "unduly delaying
the panel process", as provided for in Article 12.2 of the DSU.  However, for non-requested
information submitted at a time that would not result in "unduly delaying the panel process", there
were no procedural criteria for rejection referred to by the Appellate Body.  A panel would be forced
to consider the substance of information in view of its acceptance or rejection.  Japan believed that
such an action would considerably add to the already excessively heavy workload of panels.
Japan supported the Panel's view that in accepting non-requested information only from
parties and third parties, the parties to the disput e "would have two weeks to respond to the additional
material submitted by the other parties".  Allowing non-requested information from non-governmental
sources to be directly submitted could pave the way for parties and subsequently the panel to deal
                                                     
2 The eggs, which were earlier found laid at locations which might be affected by high-tide waves,
were rescued and transferred to the government's artificial incubation facility.WT/DSB/M/50
Page 17
with such information within a short period of ti me and  placed an additional burden for both the
parties and the panel, in particular since such non-requested information might include, like in this
case, a number of arguments, regardless of a panel's terms of reference.  Japan supported the treatment
of information from non-governmental sources by the Panel as approved by the Appellate Body,
namely that if any party in this dispute had wish ed to put forward any documents or information it
considered relevant to support its arguments as part of its submission to the Panel would be free to do
so.
Another serious problem was that the Appellat e Body had failed to consider the balance
between the rights and obligations of Members.  One of the logical consequences of the Appellate
Body's findings might be that even those Members who were not third parties to the dispute would be
allowed to submit their views to a panel at their own convenient time.  Any Member had a right to
participate in a dispute as a third party.  However, if such a party had failed to follow the relevant
procedures and practices of the DSU it could not claim to be a third party.  The Panel had also
observed that "only parties and third parties are allowed to submit information directly to the Panel"
(paragraph  7.8).  It was regrettable that the Appellate Body remained silent on this issue.
The Appellate Body had found that the Panel's r eading of the word "seek" was "in too literal a
manner" and "unnecessarily formal and technical in nature" (paragraph 107).  However, the Appellate
Body had not sufficiently clarified the meaning and the implication of the word "seek".  Japan also
noted that when the Appellate Body had confirmed its interpretation of GATT Article XX by referring
to the negotiating history of this Article, it had not explored at all the negotiating history ofArticle 13.1 of the DSU.  This did not seem to be a balanced approach.
The Appellate Body had found that the manner in which the United States applied
Section 609 was an "unjustifiable discrimination" and "arbitrary discrimination", and had
recommended that the US measure be brought into conformity with Article XX of GATT 1994.However, it had maintained that "Section 609 does come within the terms of Article XX(g)"
(paragraph 146).  Japan considered that this lack of clarity in the reasoning of Article XX in terms of
the jurisdictional limitations and the relationship between the means and ends of measures considered
as exceptions.
The Appellate Body had noted that "there is a sufficient nexus between the migratory and
endangered marine populations involved and the United States for purposes of Article XX(g)"(paragraph 133).  Without an in-depth elaboration of its argument, Japan was not convinced whether
such nexus was well-founded.
The Appellate Body's views that "Section 609 is a measure 'relating to' the conservation of an
exhaustible natural resource within the meaning of Article XX(g) of GATT 1994" (paragraph 142)because its general structure and design was fairly narrowly focused, namely it "is not a simple,
blanket prohibition of the importation of shrimp imposed without regard to the consequences of the
mode of harvesting employed…" (paragraph 141).  However, the Appellate Body had not considered
whether the measures taken under Section 609 on the import ban of shrimps had contributed to the
preservation of sea turtles or that the utilisation of turtle excluder devices (TED) had actually beenpromoted in the exporting countries.  Therefore, Japan was not fully convinced of the Appellate
Body's findings that "the means and ends relationship between Section 609 and the legitimate policy
of conserving….  endangered species … is…substantial…" (paragraph 141).   Furthermore, with
regard to the approval of measures requiring compliance by exporting countries with, or adoption of,
certain policies under the chapeau of Article XX, the Appellate Body had limited its observations onlyto the application of the measures.  It had not considered the measures in relation to the specific
exceptions under the chapeau, namely (g).
Japan wished to point out that the relationship between trade measures and environmental
objectives  within the WTO Agreement was currently under discussion in the CTE.  He drew attentionWT/DSB/M/50
Page 18
to the fact the Appellate Body was alluding the direction of an increased import restrictions on
products in the name of environmental protection other than those which were subject to
environmental protection or conservation, wi thout clearly developing its argument.
The DSB took note of the statements and adopted  the Appellate Body Report in
WT/DS58/AB/R and the Panel Repo rt in WT/DS58/R and Corr.1, as modified by the Appellate Body
Report.
2. Australia – Measures Affecting Importation of Salmon
(a) Report of the Appellate Body (WT/DS18/AB/R)  and Report of the Panel (WT/DS18/R and
Corr.  1)
The Chairman drew attention to the communi cation from the Appellate Body contained in
document WT/DS18/7 transmitting the Appellate Body Report in "Australia – Measures Affecting
Importation of Salmon", which had been circulated  in document WT/DS18/AB/R in accordance with
Article 17.5 of the DSU.  He said that in accordance with the Decision on Procedures for the
Circulation and Derestriction of WTO documents contained in WT/L/160/Rev.1 the Appellate BodyReport and the Panel Report had been circulated as unrestricted documents.  He said that under
Article 17.14 of the DSU "An Appellate Body Report shall be adopted by the DSB and
unconditionally accepted by the parties to the dispute unless the DSB decides by consensus not to
adopt the Appellate Body Report within 30 days following its circulation to the Members.  This
adoption procedure is without prejudice to the right of Members to express their views on anAppellate Body Report".
The representative of Canada said that her country was very pleased with the Appellate
Body's Report.  Both the Panel and the Appellate B ody had clarified and reaffirmed key principles of
the Agreement on the Application of Sanitary and Phytosanitary  Measures (SPS).  Both Reports hadreaffirmed that the SPS measures should not be maintained without sufficient scientific evidence and
that quarantine measures must be based on a risk assessment that evaluated the probability of the
entry, establishment or spread of diseases according to the SPS measures which might be applied.
Both Reports had reaffirmed the obligations under Article 5.5 of the SPS Agreement relating to
consistency in the application of appropriate levels of protection.  Canada commended the Appellate
Body for:  (i) clarifying the principle of judicial economy, which would contribute greatly to the
efficient operation of the dispute settlement process;  (ii) clarifying the relationship between Articles2.3 and 5.5 of the SPS Agreement;  (iii) confirming the requisite elements of a quarantine risk
assessment;  and (iv) affirming that under the SPS Agreement, Members had an implicit obligation to
determine their appropriate level of protection and to do so before establishing of maintaining a
measure.
The Appellate Body had found that Australia's measure prohibiting the importation of fresh,
chilled or frozen salmon from Canada was not based on a risk assessment and was maintained without
sufficient scientific evidence, inconsistent with Articles 5.1 and 2.2 of the SPS Agreement.  The
Appellate body had also found that by maintaining its measure Australia had acted inconsistently with
Articles 5.5 and 2.3 of the SPS Agreement, namely that its measure reflected an arbitrary orunjustifiable distinction in levels of protection that resulted in discrimination or a disguised restriction
on international trade.  There could be only one le gitimate course of action to comply with these
rulings.  Australia had to remove its prohibition on the importation of Canadian salmon.  Canada
looked forward to Australia's statement concerning its intentions in regard to implementation of the
DSB's recommendations and to reaching a mutual agreement on the time-period for implementation.
The representative of Australia said that the im plications of the Reports, read together, were
currently being carefully examined.  In accordance with Article 21.3 of the DSU, Australia wouldWT/DSB/M/50
Page 19
indicate, within the next 30 days, its intentions in respect of the implementation of the DSB's
recommendations to be adopted at the present meeting.  Australia wished to make some observations
of a general nature relating to the general application of the SPS Agreement by all Members, and to
certain procedural issues.  He wished to express Australia's appreciation to the members of the Panel,
the experts advising the Panel and the Secretariat.  They had been faced with an exceedingly complextask, in both matters of law and science, as well as in regard to the examination of evidence which had
not been the subject of consultations.
With regard to the scientific matters involved in this case, the diseases of aquatic animals,
their interaction between different species and the severity of biological and economic consequences
between many different species, together with the widely different biological and economic asset
values attached by different countries to different fish, were possibly one of the most complex areas ofanimal health.  They were also possibly the most under-researched in the animal science field.  The
Panel had therefore been obliged to consider matters of scientific opinion rather than factual issues.
Notwithstanding the views of scientific experts advising the Panel that they could not make judgments
on different risks to salmon pertaining between different fish in the absence of risk assessments on all
relevant products, the Panel had the unenviable mandate of reaching legal findings in this respect.  Inthis context, it might be useful to consider whether future panels dealing with complex SPS issues
could be enlarged in composition to include panelists with appropriate background, who could
contribute to interpreting the scientific evidence before panels.  This issue could be discussed in the
context of the DSU review.
A procedural issue that might also be taken up in a DSU context related to the relationship
between the consultations and panel stages and the degree of precision in regard to panel requests.
Australia considered that, in this case, the Panel had been faced with a particularly difficult
evidentiary task, given that the bulk of evidentiary matters had taken placed between the consultations
in 1995 and the 1997 panel request.  Under these circumstances, the measure, which was important tothe legal claims and arguments and to the Panel's legal reasoning, had not been ultimately resolved
until the Appellate Body stage of proceedings.
The interpretive guidance provided by the Appe llate Body in relation to Articles 2 and 5 of
the SPS Agreement would appear to have wide ranging implications for all Members, in relation to
the domestic processes and practices for the conduct of risk assessments, the way in which risks were
evaluated and the technical and resource capacity of Members to undertake a number of complex riskassessments in parallel.  This was particularly relevant to Article 5.5 of the SPS Agreement, which
addressed the objective of consistency in the application of the concept of appropriate level of sanitary
and phytosanitary protection.  Notwithstanding these observations,  Australia supported the adoption
of the Panel and the Appellate Body Reports.
The representative of Norway said that her country, which had participated as a third party in
this case, welcomed the Appellate Body Report.  In general, Norway agreed and supported the
findings and the conclusions contained therein.  However, it believed that there was an inconsistency
with regard to the Appe llate Body's treatment of Article 5.5 of the SPS Agreement as the Appellate
Body had authorized a comparison of levels of protection which had been based on a comparison ofmeasures applied to different hosts carrying the same disease.  In Norway's view, if different measures
to combat the same disease existed, this did not necessarily constitute a difference in the level of
protection, but only a difference with regard to th e measures chosen to combat the disease.  The
comparison of measures should have related only to Article 5.6 of the SPS Agreement, and not to
Article 5.5 thereof.  Norway  considered that the Appellate Body had made the correct interpretation
of the relationship between the level of protection and the measure, when it had discussed Article 5.6
of the SPS Agreement.  It was unfortunate that the clarity of that discussion had not transcended into
its discussion on Article 5.5.WT/DSB/M/50
Page 20
The representative of the United States said that her country, due to its interest in access to
Australia's market, had requested and had held separate consultations with Australia on the same
matter.  The United States had also participated as a third party in the proceeding of this dispute.  Her
delegation urged Australia to comply promptly w ith the DSB's recommendations and looked forward
to discussions with Australia concerning implementation and to working with both Australia andCanada.
The representative of the European Communities said that due to its systemic reasons
concerning the interpretation of the SPS Agreement, the Community had participated as a third party
in the proceedings of this case.  The Commun ity welcomed the Appellate Body Report which
provided further guidance on the interpretation and application of the SPS Agreement.
The DSB took note of the statements and adopted  the Appellate Body Report in
WT/DS18/AB/R and the Panel Repo rt in WT/DS18/R and Corr.1, as modified by the Appellate Body
Report.
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