¹ General Agreement on Tariffs and Trade, 30 October 1947, Can. T.S. 1948 N0.31, 55 U.N.T.S. 187 (provisionally in force 1 January 1948) [GATT].

² Agreement on the Application of Sanitary and Phytosanitary Measures, Annex lA of the Marrakesh Agreement Establishing the World Trade Organization, 15 April 1994, available at <http://www.wto.org>, (1994) 33 I.L.M. 15 [WTO Agreement] [SPS Agreement].

³ Agreement on Technical Barriers to Trade, Annex 1A of the WTO Agreement, supra note 2 [TBT Agreement].

⁴ European Communities – Measures Affecting Asbestos and Asbestos-Containing Products, Appellate Body Report, Doc. WT/DS135/AB/R, adopted 5 April 2001 [Asbestos].

⁵ United States – Import Prohibition of Certain Shrimp and Shrimp Products, Appellate Body Report, Doc. WT/DS58/AB/R, adopted 6 November 1998 [Shrimp/Turtle 1998]; United States – Import Prohibition of Certain Shrimp and Shrimp Products, Recourse to Article 21.5 of the DSU by Malaysia, Appellate Body Report, Doc. WT/ DS58/AB/R, adopted 21 November 2001 [Shrimp/Turtle 2001].

⁶ Shrimp/Turtk 1998, Panel Report, supra note 5 at para. 2.5.

⁷ Ibid, at para. 2.6.

⁸ Ibid, at paras. 2.8 and 2.9. Certification required that the country have a comparable regulatory regime and an incidental-taking rate for sea turtles that was comparable to the US rate. Pursuant to guidelines issued in 1991, the foreign regulatory regime would be comparable if it required the use of TEDs or if it included a verifiable scientific program to reduce sea turtle mortality associated with fishing. The guidelines were revised in 1993 to eliminate the second option and simply require the use of TEDs, with some exceptions (para. 2.14). A country could also be certified if its fishing environment for shrimp did not threaten sea turtles (para. 2.7). Revised guidelines in 1996 allowed imports in further circumstances, including imports of shrimp caught in the waters of an uncertified country if the shrimp had been harvested using TEDs (para. 2.12). The US Court of International Trade ruled in late 1 gg6 that this provision for TED-harvested shrimp from the waters of uncertified countries was contrary to the underlying legislation. At the time of the Panel proceedings, this decision was under appeal (para. 2.15 and note 13).

⁹ The US Court of Internadonal Trade ruled in 1995 that the original guidelines were incorrect in limiting their scope to the Caribbean and western Atlantic region. The court decided that enforcement had to be worldwide (Ibid, at paras. 2.10 and 2.11).

¹⁰ India, Pakistan, and Thailand argued that they had a four-month phase-in period (Ibid, at paras. 2.10, 3.268, and 7.56). Malaysia argued that its phase-in period was only three months (para. 3.271 ).

¹¹ The complainants also argued that the ban involved discrimination in the administration of a quantitative restriction, contrary to GATT Article XIII: 1. Since the method of harvesting did not change the nature of the shrimp, they argued that the United States could not accept imports from certified countries while banning imports from non-certified countries. As well, they maintained that the differences in phase-in periods meant that the restrictions were not “similar” for all member countries, as required by Article XIII: 1 (Ibid, at paras. 3.137–3.142). In addition, India, Pakistan, and Thailand argued that the import ban was contrary to the most-favoured-nation obligation in GATT Article 1:1, due in part to the differences in phase-in periods (para. 3.135).

¹² Ibid, at para. 3.143. The United States did not accept the complainants’ arguments concerning Article I and Article XIII but did not pursue those points in view of its position on Article XI. The United States accepted that the ban was a restriction under Article XI for countries that had not been certified under the US process. As Thailand had been certified (para. 3.136), the admission did not apply to the complaint brought by Thailand.

¹³ Ibid, at paras. 7.15–7.17. Given this finding, the Panel did not address the arguments concerning Article I and Article XIII.

¹⁴ Ibid, at para. 7.62.

¹⁵ Ibid, at paras. 7.29, 7.35–7.41.

¹⁶ Ibid, at para. 7.44. See also paras. 7.34 and 7.49.

¹⁷ Ibid, at para. 7.45.

¹⁸ Ibid, at para. 7.56. See paras. 3–98, 3–99, 3.101, and 3.105.

¹⁹ Shrimp/Turtle 1998, Appellate Body Report, supra note 5 at para. 120: “The standard of ’arbitrary discrimination,’ for example, under the chapeau may be different for a measure that purports to be necessary to protect public morals than for one relating to the products of prison labour.”

²⁰ Ibid, at para. 121.

²¹ Ibid, at paras. 134 and 142. The measures were also made effective in conjunction with domestic restrictions, as required by Article XX(g) (para. 145). The main US claim was under Article XX(g), and Article XX(b) was claimed only in the alternative (paras. 125 and 146).

²² Ibid, at paras. 161–65. m response to a question during the hearing, the United States confirmed that, despite wider provisions in the guidelines, US officials decided certification only on the basis of whether a country required TEDs or whether certain limited exceptions applicable to US domestic trawlers applied. See further para. 177, note 181. In addition, the Appellate Body noted that while the dispute was underway, exports from uncertified countries were banned even if the shrimp had been caught using TEDs. The Appellate Body saw this as evidence of the intention to influence the policy of other countries, rather than to protect and conserve sea turdes (para. 165).

²³ Ibid, at para. 175. The shorter periods meant lower efforts by the United States concerning the transfer of TED technology.

²⁴ Ibid, at paras. 165–72. The United States concluded the Inter-American Convention for the Protection and Conservation of Sea Turtles (1996 U.S.T. Lexis 61 ) in late 1996 with Brazil, Costa Rica, Mexico, Nicaragua, and Venezuela (para. 169, note 170).

²⁵ Ibid, at para. 177.

²⁶ Ibid, at para. 180. The procedure did not involve a formal opportunity to be heard, written reasons or even specific notification of acceptance or rejection. In connection with this analysis, the Appellate Body referred to the transparency and procedural fairness requirements of GATT Article X:3 and found that they had not been met (paras. 182 and 183).

²⁷ Ibid, at para. 184.

²⁸ Understanding on Rules and Procedures Governing the Settlement of Disputes, 1994, Annex 2 to the WTO Agreement, supra note 2 [DSU].

²⁹ Shrimp/Turtle 2001, Panel Report, supra note 5 at paras. 3.30, 3.43, 5.20, and 5.38. See paras. 5.23 and 5.42.

³⁰ Ibid, at para. 5.50.

³¹ Ibid, at para. 5.87. The Panel stated that since a multilateral agreement was to be preferred, the unilateral US measure should be seen as provisionally allowed “for emergency reasons” and the extent of serious good faith efforts could be reassessed at any time. Unilateral measures could be definitively accepted if they were part of an international agreement or “if they were taken further to the completion of serious good faith efforts to reach a multilateral agreement” (para. 5.88). At the time of the Panel proceeding, negotiations did not appear to have reached this point.

³² Ibid, at paras. 5.102 and 5.104. The United States provided the example of the Northern Prawn Fishery in Australia, where TEDs were found acceptable by US authorities even though they did not conform to all US technical requirements (para. 5.94). Further, the revised guidelines allowed for certification on proof of a comparably effective regulatory program that protected sea turtles from shrimp fishing even without TEDs (para. 5.96). The United States gave the example of Pakistan, which had obtained certification on the basis of TED use and some prohibitions on shrimp trawling (para. 5.100). The Panel concluded that the United States applied the revised guidelines in a manner that considered conditions in the exporting countries (para. 5.102).

³³ Other changes made in the revised guidelines and practice related to imports of TED-caught fish from non-certified countries (Ibid, at para. 5.111), a sufficient phase-in period (para. 5.116), and efforts to transfer TED technology (para. 5.120).

³⁴ Ibid, at para. 5.137.

³⁵ Ibid, at paras. 5.143 and 5.144.

³⁶ Ibid, at para. 6.1 (b). The Panel concluded that the measure was justified under Article XX “as long as the conditions stated in the findings of this Report, in particular the ongoing serious good faith efforts to reach a multilateral agreement, remain satisfied.” This conclusion could be interpreted as including the continuing openness of the US market to imports of TED-caught shrimp from non-certified countries. The US Court of International Trade had decided in July 2000 that this part of the revised guidelines was contrary to the legislation, but had not required the Department of State to change its policy. The matterwas under appeal at the time of the Panel proceedings (paras. 5.107–5.109). The United States gave the examples of Australia and Brazil, where shrimp exports from certain fisheries were permitted into the United States even though the two countries were not certified, since they did not require the use of TEDs in all of their fisheries (para. 5.107 and note 232). The Appellate Body in 2001 simply upheld the conclusion of the Panel in the same words, without clarifying the point (Shrimp/Turtle 2001, Appellate Body Report, supra note 5 at para. 153).

³⁷ Shrimp/Turtle 2001, Appellate Body Report, supra note 5 at para. 122

³⁸ Ibid, at paras. 123 and 134. The Appellate Body noted one disagreement with the reasoning of the Panel in this respect. The Panel had stated that the United States bore an especially heavy burden in negotiations, given its scientific, diplomatic, and financial means. The Appellate Body disagreed with this emphasis on the circumstances of a particular country and ruled that the good faith obligation applies to all WTO members equally (para. 134, note 97).

³⁹ Ibid, at para. 144. As Malaysia did not appeal the Panel’s conclusion that the US measure was not a disguised restriction on international trade, that Panel finding remained undisturbed (paras. 82 and 118, note 68).

⁴⁰ Asbestos, Panel Report, supra note 4 at para. 3.8. The scope of this permission was defined through a list to be updated annually until 2002 when the ban became total. See further para. 3.32.

⁴¹ Canada is the world’s leading exporter of chrysotile asbestos, the main type of asbestos consumed worldwide (Ibid, at paras. 3.20, 3.22, and 3.105).

⁴² Ibid, at paras. 8.87–8.100, and 8.159. Canada also based its claim on the TBT Agreement, supra note 3. The Panel and the Appellate Body disagreed on the interpretation of the TBT Agreement, and the argument was not fully examined. This issue is summarized after the outline of the Panel and Appellate Body reasoning on Articles III and XX. The Panel dealt with and rejected a further claim by Canada that the decree constituted non-violation nullification and impairment under GATT Article XXIII: 1 (b) (Panel Report, Asbestos, supra note 4 at para. 8.282). The Appellate Body supported the Panel’s reasoning on Article XXIII:1(b) (Asbestos, Appellate Body Report, supra note 4 at para. 192). The initial notification from Canada also mentioned the SPS Agreement, supra note 2, but Canada did not pursue this issue in argument (Asbestos, Panel Report, supra note 4 at para. 1.2; Asbestos, Appellate Body Report, supra note 4 at para. 3, note 4).

⁴³ Asbestos, Panel Report, supra note 4 at paras. 3.128 and 8.105.

⁴⁴ Ibid, at paras. 8.124–8.126 and 8.144. The substitute fibres identified by Canada were polyvinyl alcohol, cellulose, and glass. Considering the rules governingburden of proof, the Panel restricted its examination to those products (paras. 8.107 and 8.150).

⁴⁵ Ibid, at paras. 8.146, 8.148, and 8.150.

⁴⁶ Ibid, at paras. 8.139–8.132, and 8.149.

⁴⁷ Ibid, at paras. 8.157 and 8.158.

⁴⁸ Ibid, at paras. 3.9, 3.54–3.56, and 8.163–8.165.

⁴⁹ Ibid, at paras. 3.12 and 3.57.

⁵⁰ Ibid, at para. 8.193.

⁵¹ Ibid, at paras. 8.209–8.217. Controlled use requires using low-speed saws with water injection or vacuum systems, using pressure chains to break pipes (paras. 3.296 and 3.489) and wearing a mask (para. 3.56, Canada) or “diver’s suit” (para. 3.296, EC - see para. 3 63). Controlled-use practices would be necessary in construction, in building maintenance and services, and in do-it-yourself projects. The tools required could be heavy and time-consuming to set up (para. 3.171, EC). The EC argued that there was no way of monitoring the use of asbestos once it was in the market to make sure that the procedures were followed (para. 3.490).

⁵² Ibid, at paras. 3.18, 3.59, and 8.185.

⁵³ Ibid, at paras. 8.179 and 8.210.

⁵⁴ Ibid, at paras. 8.222, 8.240, and 8.241.

⁵⁵ Asbestos, Appellate Body Report, supra note 4 at para. 161.

⁵⁶ Ibid, at para. 168.

⁵⁷ Ibid, at para. 174.

⁵⁸ Ibid, at para. 113.

⁵⁹ Ibid, at paras. 114, 128, 134–36, and 142.

⁶⁰ Ibid, at paras. 121–23, 130, 139, and 145.

⁶¹ Ibid, at para.147. In a concurring statement, one member of the Appellate Body indicated that this finding did not have to be qualified as a question of Canada’s burden of proof. Given the serious health risks, this member of the Appellate Body would have made an unqualified finding that these were not like products, since it was difficult to imagine what other evidence of end uses and consumer tastes and habits could outweigh the deadly nature of asbestos (paras. 152 and 153).

⁶² Ibid, at para. 148.

⁶³ Asbestos, Panel Report, supra note 4 at paras. 3.266–3.269.

⁶⁴ Ibid, at paras. 3.273–3.289, 3.;298–3.312, and 3.322–3.352.

⁶⁵ Ibid, at paras. 3.358–3.361, 3.369–3.372, and 3.377–3.386.

⁶⁶ Ibid, at paras. 3.388–3.389, and 3.392–3.393.

⁶⁷ TBT Agreement, supra note 3, Annex I.

⁶⁸ Asbestos, Panel Report, supra note 4 at paras. 8.40, 8.43, and 8.63.

⁶⁹ Ibid, at paras. 8.64–8.69.

⁷⁰ Ibid, at para. 8.72. Although the EC had notified the decree to the Committee on Technical Barriers to Trade, the Panel found that the EC was not estopped from arguing against application of the TBT Agreement (para. 8.60).

⁷¹ Asbestos, Appellate Body Report, supra note 4 at para. 64.

⁷² Ibid, at para. 71.

⁷³ Ibid, at paras. 72, and 74–76.

⁷⁴ Ibid, at paras. 81–83.

⁷⁵ Shrimp/Turtle 1998, Panel Report, supra note 5 at paras. 3.7–3.10; Shrimp/Turtle 2001, Panel Report, supra note 5 at paras. 3.124–3.131; Shrimp/Turtle 2001, Appellate Body Report, supra note 5 at para. 145 at note 106. In the 1998 Panel proceedings, India, Pakistan, and Thailand also noted that they had their own programs for the protection of sea turtìes (Shrimp/Turtle 1998, Panel Report, supra note 5 at paras. 3.4–3.6 and paras. 3.11–3.16). India, in particular, mentioned the costs of TEDs and submitted that these had to be considered in context. While TEDs might be inexpensive by US standards, they would be very expensive to the average owners of fishing vessels in India. As well, in India, the larger fish that were also caught in shrimp nets were of economic value and would be lost if TEDS were used (Shrimp/Turtle 1998, Panel Report, supra note 5 at paras. 3.81–3.82). See further Thailand’s arguments that the 1999 guidelines lacked flexibility since TED use was still the standard applied by US authorities: Shrimp/Turtle 2001, Panel Report, supra note 5 at para. 4.107.

⁷⁶ Shrimp/Turtle 2001, Panel Report, supra note 5 at para. 3.162.

⁷⁷ Ibid, at para. 5.103

⁷⁸ Shrimp/Turtle 1998, Panel Report, supra note 5 at para. 3.152; Shrimp/Turtle 2001, Panel Report, supra note 5 at para. 3.163

⁷⁹ Shrimp/Turtle 1998, Panel Report, supra note 5 at para. 3.145.

⁸⁰ Shrimp/Turtle 1998, Appellate Body Report, supra note 5 at para. 161. (“Perhaps the most conspicuous flaw in this measure’s application relates to its intended and actual coercive effect on the specific policy decisions made by foreign governments.”)

⁸¹ Ibid, at para. 163.

⁸² Ibid, at para. 164. The Appellate Body linked this analysis to the ban on imports from uncerdfied countries even if the shrimp had been caught using TEDs. The Appellate Body concluded that the measure was intended to influence other WTO members to adopt “essentially the same comprehensive regulatory regime as that applied by the United States to its domestic shrimp trawlers” (para. 165). The Appellate Body stated that “discrimination results not only when countries in which the same conditions prevail are differenüy treated, but also when the application of the measure at issue does not allow for any inquiry into the appropriateness of the regulatory program for the conditions prevailing in those exporting countries” (ibid.).

⁸³ Ibid, at para. 177.

⁸⁴ Shrimp/Turtk 2001, Appellate Body Report, supra note 5 at para. 144.

⁸⁵ Ibid, at paras. 146 and 147.

⁸⁶ Ibid, at para. 144. Before the 2001 Panel, the representative of the United States stated that there was nothing in the Malaysian program that would make it impossible for the United States to grant certification, should Malaysia decide to apply (Shrimp/Turtk 2001, Panel Report, .supranote 5 at para. 5.101).

⁸⁷ Shnmp/Turtk 2001, Panel Report, supra note 5 at Annex, II.B.(a)17.

⁸⁸ Ibid. para. 5.100

⁸⁹ Ibid, at paras. 3.137, 3.138, 5.94, 5.100, and 5.124.

⁹⁰ Ibid, at para. 3.171 (Malaysia), para. 4.107 (Thailand).

⁹¹ Dominican Republic – Measures Affecting the Importation and Internal Sale of Cigarettes, Appellate Body Report, Doc. WT/DS302/AB/R, adopted 19 May 2005, para. 94.

⁹² In the Asbestos dispute, for example, it was not argued that the EC had to make its import ban flexible in order to meet the requirements of Article XX.

⁹³ Throughout the 1998 process, TED-caught shrimp from non-certified countries was, in practice, banned from the US market due to domestic court decisions (Shrimp/Turtk 1998, Appellate Body Report, supra note 5 at paras. 5.165). In contrast, during the 2001 process, shrimp from non-certified countries was permitted to enter the United States pursuant to the revised guidelines, despite a decision of the US Court of International Trade to the contrary. That decision had not been implemented in departmental practice, pending an appeal (Shrimp/ Turtle 2001, Panel Report, supra note 5 at paras. 2.18, 3.121, 3.147, 4.83, 4.104, and 5.109–5.111; Shrimp/Turtle 2001, Appellate Body Report, supra note 5 at paras. 25, 64, 93–95, and 151 ). On appeal to the Court of Appeals for the Federal Circuit and the US Supreme Court, the decision of the Court of International Trade was later reversed and the departmental guidelines were upheld ( Murphy, Sean D., ed., “Contemporary Practice of the United States Relating to International Law” (2003) 97 Am. J. Int’l L. 681 at 691–92).Google Scholar

⁹⁴ Shrimp/Turtle 1998, Panel Report, supra note 5 at footnote 649.

⁹⁵ Shrimp/Turtle 1998, Appellate Body Report, supra note 5 at para. 165. The Appellate Body also said that such coercive intent was “difficult to reconcile with the declared policy objective of protecting and conserving sea turtles” (ibid.).

⁹⁶ Ibid, at para. 164.

⁹⁷ Ibid, at para. 172.

⁹⁸ Shrimp/Turtle 2001, Appellate Body Report, supra note 5 at para. 122.

⁹⁹ In the 1998 Panel, India, Pakistan, and Thailand argued that the differences in the phase-in periods were contrary to Article I:1 and Article XIII: 1 (Shrimp/Turtle 1998, Panel Report, supra note 5 at paras. 3.135 and 3.139).

¹⁰⁰ Shrimp/Turtk 2001, Appellate Body Report, supra note 5 at paras. 152, 153(b), quoting from Shrimp/Turtk 2001, Panel Report, supra note 5 at para. 6.1(b). The Panel viewed this as a provisional exemption granted for emergency reasons while negotiations continued, rather than a right to a permanent measure (Ibid. at para. 5.88). See Ni, Kueijung, “Redefinition and Elaboration of an Obligation to Pursue International Negotiations for Solving Global Environmental Problems in Light of the WTO Shrimp/Turde Compliance Adjudication between Malaysia and the United States” (2004) 14 Minn. J. Global Trade 111.Google Scholar

¹⁰¹ In the 2001 process, Australia argued unsuccessfully that the United States had not met the burden of justification under Article XX, given the progress made on the initiative among Indian Ocean nations (Shrimp/Turtle 2001, Appellate Body Report, supra note 5 at paras. 49 and 50). See also Shrimp/Turtle 2001, Panel Report, supra note 5 at para. 4.26, where Australia argued that good faith negodations should involve possible changes in the “existence or nature” of the import ban, and not just details of implementation.

¹⁰² Shrimp/Turtle 2001, Appellate Body Report, supra note 5 at paras. 124 and 134. See US argument, Shrimp/Turtle 2001, Panel Report, super note 5 at para. 3.117.

¹⁰³ See Shrimp/Turtle 2001, Panel Report, supra note 5 at para. 5.73.

¹⁰⁴ See the argument by Mexico, Shrimp/Turtle 2001, Panel Report, supra note 5 at para. 4.85.

¹⁰⁵ Note the criticisms of the Appellate Body’s approach in Donald M. McRae, “GATT Article XX and the WTO Appellate Body,” in Marco Bronckers and Reinhard Quick, eds., New Directions in International Economic Law: Essays in Honour offohn H.Jackson (The Hague / London / Boston: Kluwer Law International, 2000) 217 at 230–31: “To require that only measures that result from negotiations with other Members fall within the scope of Article XX, or of paragraph (g) of that Article changes the nature of Article XX completely. It would deny the right to invoke exceptions to WTO obligations and supplant Article XX with a rule based on negotiated exceptions” (Ibid, at 234).

¹⁰⁶ Shrimp/Turtle 1998, Appellate Body Report, supra note 5 at paras. 180 and 181.

¹⁰⁷ See Shrimp/Turtle 2001, Panel Report, supra note 5 at paras. 5.126–5.136.

¹⁰⁸ Shrimp/Turtle 2001, Appellate Body Report, supra note 5 at para. 147.

¹⁰⁹ Shrimp/Turtle 1998, Appellate Body Report, supra note 5 at paras. 148 and 15. This is not exactly the substantive approach that is suggested later in this section, which would consider the member’s chosen level of protection as expressed in the measure and the link between that level and the discrimination.

¹¹⁰ Ibid, at paras. 43 and 44.

¹¹¹ Ibid, at para. 149.

¹¹² Ibid, at para. 157.

¹¹³ Ibid, at para. 160.

¹¹⁴ United States–Standards for Reformulated and Conventional Gasoline, Appellate Body Report, Doc. WT/DS2/AB/R, adopted 20 May 1996, DSR 1996:1 at 3 [Reformulated Gasoline].

¹¹⁵ Clean Air Act, 42 U.S.C. § 7401 et seq.

¹¹⁶ Ibid. at 27.

¹¹⁷ Ibid.

¹¹⁸ Ibid, at 26–27. This was one way of avoiding the discrimination. The other would have been to make the full range of optional methods available to foreign refiners.

¹¹⁹ Canada – Measures Affecting Exports of Unprocessed Herring and Salmon, GATT Panel Report,adopted22March 1988,BISD35S/98 [Canada-Unprocessed Herring and Salmon].

¹²⁰ United States – Restrictions on Imports of Tuna, GATT Panel Report, 3 September 1991, unadopted, BISD 39S/155, (1991) 30 I.L.M. 1594, para. 5.33 [Tuna/ Dolphin I]; United States – Restrictions on Imports of Tuna, GATT Panel Report, 16 June 1994, unadopted, (1994) 33 I.L.M. 839, para. 5.27 [Tuna/Dolphin II]. See further United States – Taxes on Automobiles, GATT Panel Report, 11 October 1994, unadopted, (1994) 33 I.L.M. 1397, paras. 5.59–5.66, especially para. 5.63, rejecting a “least-trade-restricdve” test for paragraph (g)) [United States – Automobiles].

¹²¹ Reformulated Gasoline, Appellate Body Report, supra note 114 at 15.

¹²² Ibid, at 18. This interpretation is less demanding than the previous views of paragraph (g), effectively ignoring the word “primarily.” See Donald M. McRae, “The Contribution of International Trade Law to the Development of International Law” (1996) 260 Recueil des Cours 99 at 202. For further discussion of the interpretation of the introductory clause in this decision, see later in the text under Assertion 2.

¹²³ Shrimp/Turtle 1998, Appellate Body Report, supra note 5 at para. 141.

¹²⁴ Ibid, at paras. 143–45.

¹²⁵ Reformulated Gasoline, Appellate Body Report, supra note 114 at p. 23.

¹²⁶ See, for example, the conclusion of the GATT panel in United States – Automobiles that a system of averaging fleets of automobiles by manufacturer breached Article HI but met the requirements of the introductory clause of Article XX because it promoted fuel conservation and supported the restrictions on domestic producers: GATT Panel Report, United States – Automobiles, supra note 120 at para. 5.65. The US measure was not exempted, however, as it also mandated separate accounting for foreign and domestic fleets and this feature was not justified. See also the rejection of retroactive measures in GATT Panel Report, Tuna/Dolphin I, supra note 120 at para. 5.33.

¹²⁷ See Hudec, Robert E., “GATT/WTO Constraints on National Regulation: Requiem for an ’Aim and Effects’ Test” (1998) 32 Int’l Law 619 Google Scholar at 624, stating that the traditional GATT approach to distinctions among products accepts “product distinctions phrased in terms of product qualities themselves, or else ‖ other characteristics that indirectly govern product qualities, such as characteristics of the production process (slaughterhouse cleanliness) or characteristics of the producer (possession of a license certifying requisite skills).” For historical background on unilateral trade measures taken for environmental or humanitarian reasons, see Charnovitz, Steve, “Exploring the Environmental Exceptions in GATT Article XX” (1991) 25/5 J. World Trade 37 Google Scholar; Charnovitz, Steve, “The Moral Exception in Trade Policy” (1998) 38 Va. J. Int’l L. 689.Google Scholar

¹²⁸ United States – Prohibition of Imports of Tuna and Tuna Products from Canada, GATT Panel Report, adopted 22 February 1982, BISD 29S/91.

¹²⁹ The claim was unsuccessful mainly because there were no corresponding restrictions on domestic production or consumption, as required in Article XX(g).

¹³⁰ Ibid, at para. 4.13. For other instances involving a link to goods that was too distant, see Belgian Family Allowances, GATT Panel Report, adopted 7 November 1952, BISD 1S/59; Border Tax Adjustments, GATT Working Party Report, adopted 2 December 1970, BISD 18S/97, at para. 14.

¹³¹ Tuna/Dolphin I, GATT Panel Report, supra note 120 at paras. 5.27 and 5.32. See para. 5.27: “The Panel considered that if the broad interpretation … suggested by the United States were accepted, each contracting party could unilaterally determine the … policies from which other contracting parties could not deviate without jeopardizing their rights under the General Agreement. The General Agreement would then no longer constitute a multilateral framework for trade among all contracting parties.”.

¹³² Tuna/Dolphin II, GATT Panel Report, supra note 120 at paras. 5.20 and 5.31–5.33.

¹³³ Tuna/Dophin I, GATT Panel Report, supra note 120 at para. 5.26. See Ibid, at paras. 5.27, 5.38, and 5.39

¹³⁴ Shrimp/Turtle 1998, Panel Report, supra note 5 at paras. 7.45–7.46.

¹³⁵ Shrimp/Turtle 1998, Appellate Body Report, super note 5 at para. 121.

¹³⁶ John H. Jackson notes how nuanced the language of this paragraph is. He specifically draws attention to the word “may.” See Jackson, John H., “Comments on Shrimp/Turtle and the Product/Process Distinction” (2000) 11 European J. Int’l L. 303 at 306.CrossRefGoogle Scholar

¹³⁷ See Shrimp/Turtle 2001, Panel Report, supra note 5 at para. 5.65; Shrimp/Turtle 2001, Appellate Body Report, supra note 5 at paras. 137–38.

¹³⁸ The other listed exceptions provide somewhat less support for the conclusion that unilateral measures are covered. Before the 1998 Panel, the United States argued that the language in Article XX (b) was based on similar language in earlier treaties that had been commonly interpreted as permitting measures for the protection of life or health of animals and plants outside the territory of the Party applying the measure. See Shrimp/Turtle 1998, Panel Report, supra note 5 at paras. 3.186–3.194.

¹³⁹ Tuna/Dolphin I, GATT Panel Report, supra note 120 at para. 4.29

¹⁴⁰ Tuna/Dolphin II, GATT Panel Report, supra note 120 at para. 4.34

¹⁴¹ Ibid.

¹⁴² In the EC – Tariff Preferences decision, the Appellate Body rejected an argument that the Enabling Clause justified a special preference in the GSP system of the EC that provided greater benefits to countries combating drug production and trafficking: European Communities – Conditions for the Granting of Tariff Preferences to Developing Countries, Appellate Body Report, Doc. WT/DS246/AB/R, adopted 20 April 2004.

¹⁴³ Convention on International Trade in Endangered Species of Wild Fauna and Flora, 3 March 1973, Can. T.S. 1975 N0.32, (1973) 12 I.L.M. 1088 [CITES].

¹⁴⁴ Shrimp/Turtle 1998, Panel Report, supra note 5 at paras. 3.5, 3.9, 3.14, 3.18, 3.54, and 7.1.

¹⁴⁵ Shrimp/Turtle 1998, Appellate Body Report, supra note 5 at para. 133. This claim was disputed. Thailand, for example, argued that the most common type of sea turtles found in its waters was very rare in the US and that its future was thus not the responsibility of the United States (Shrimp/Turtle 1998, Panel Report, supra note 5 at para. 3.40, citing a report from the US National Research Council). See argument at Shrimp/Turtle 1998, Panel Report, supra note 5 at paras. 3.363.46, and 3.157–3.163.

¹⁴⁶ This statement is an over-simplification. For full analysis, see Howse, Robert, “Back to Court after Shrimp/Turtle? Almost but Not Quite Yet: India’s ShortLived Challenge to Labor and Environmental Exceptions in the European Union’s Generalized System of Preferences” (2003) 18 Am. U. Int’l L. Rev. 1333 Google Scholar at 1369–70; Howse, Robert, “The Appellate Body Rulings in the Shrimp/ Turtle Case: A New Legal Baseline for the Trade and Environment Debate” (2002) 27 Colum. J. Envtl. L. 489 Google Scholar; Howse, Robert and Regan, Donald, “The Product/Process Distinction – An Illusory Basis for Disciplining ’Unilateralism’ in Trade Policy” (2000) 11 (2) Eur. J. Int’l L. 249 at 274–79.CrossRefGoogle Scholar

¹⁴⁹ Bartels, Lorand, “Article XX of GATT and the Problem of Extraterritorial Jurisdiction: The Case of Trade Measures for the Protection of Human Rights” (2002) 36(2) J. World Trade 353 at 379–82.CrossRefGoogle Scholar

¹⁴⁸ McRae, Donald M., “The Contribution of International Trade Law to the Development of International Law” (1996) 260 Recueil des Cours 99 Google Scholar at 206: “ [T] rade that involves the violation of internationally accepted labour or human rights standards cannot claim to be solely a domestic issue for the States concerned.” See Marceau, further Gabrielle, “WTO Dispute Settlement and Human Rights” (2002) 13 Eur. J. Int’l L. 753 CrossRefGoogle Scholar; European Communities – Conditions for the Granting of Tariff Preferences to Developing Countries, Appellate Body Report, Doc. WT/DS246/AB/R, adopted 20 April 2004.

¹⁴⁹ Shrimp/Turtle 1998, Appellate Body Report, supra note 5 at para. 156 [emphasis in original].

¹⁵⁰ The Appellate Body refers in paragraph 159 to a line of equilibrium and balance between the competing rights. It is not clear that the rights are given equal weight, however, since paragraph 160 returns to the question of the “abuse or misuse” of the exceptions provided in Article XX.

¹⁵¹ Shrimp/Turtle 2001, Panel Report, supra note 5 at para. 5.142. See paras. 5.49 and 5.50, where the Panel quotes paragraphs 156 and 159 of Appellate Body Report, Shrimp/Turtle 1998, supra note 5.

¹⁵² Shrimp/Turtle 2001, Panel Report, supra note 5 at para. 5.142. This wording concerning protective application to be discerned from the “design, architecture and revealing structure” of the measure is drawn from japan – Taxes on Alcoholic Beverages, Appellate Body Report, Doc. WT/DS8/AB/R, Doc. WT/ DS10/AB/R, and Doc. WT/DS11/AB/R, adopted 1 November 1996, DSR 1996: 1, 97 at 120.

¹⁵³ Note the statement from the Appellate Body in 1998 that the exclusion of shrimp that had been harvested using methods identical to those employed in the United States was “difficult to reconcile with the declared policy objective of protecting and conserving sea turtles”: Shrimp/Turtle 1998, Appellate Body Report, supra note 5 at para. 165. See also Shrimp/Turtle 1998, Panel Report, supra note 5 at para. 7.16.

¹⁵⁴ Shrimp/Turtle 2001, Panel Report, supra note 5 at para. 5.143.

¹⁵⁵ Shrimp/Turtle 2001, Appellate Body Report, supra note 5 at para. 82.

¹⁵⁶ United States – Prohibition of Imports of Tuna and Tuna Products from Canada, GATT Panel Report, adopted 22 February 1982, BISD 28S/91 at para. 4.8; United States – Imports of Certain Automotive Spring Assemblies, GATT Panel Report, adopted 26 May 1983, BISD 30S/107 at para. 56. The shift to a substantive analysis appears in Reformulated Gasoline, Appellate Body Report, supra note 114 at 3. See also Asbestos, Panel Report, supra note 4 at paras. 8.235–8.239.

¹⁵⁷ Reformulated Gasoline, Appellate Body Report, supra note 114 at 20–21.

¹⁵⁸ The Appellate Body quoted with approval language from the Panel decision below that reflected a “least-trade-restrictive” test developed for the Article XX exceptions that mention necessity: “While the Panel agreed that it would be necessary … to ascertain the origin of gasoline, the Panel could not conclude that the United States had shown that this could not be achieved by other measures reasonably available to it and consistent or less inconsistent with the General Agreement.” Reformulated Gasoline, Panel Report, super note 114 at para. 6.26, quoted at Reformulated Gasoline, Appellate Body Report, supra note 114 at 24.

¹⁵⁹ Reformulated Gasoline, Appellate Body Report, supra note 114 at 27.

¹⁶⁰ ibid.

¹⁶¹ Canada’s Landing Requirement forPacific Coast Salmon and Herring, Binational Panel Report, United States-Canada Free Trade Agreement, Doc. CDA-89-1807-01, 16 October 1989, 1989 FTAPD LEXIS 6 [Landing – Salmon and Herring].

¹⁶² Canada-United States Free Trade Agreement, 22 December 1987 and 2 January 1988, Can. TS. 1989 N0.3.

¹⁶³ Canada – Measures Affecting Exports of Unprocessed Herring and Salmon, GATT panel Report, adopted 22 March 1988, BISD 35S/98.

¹⁶⁴ Landing – Salmon and Herring, Chapter 18 Panel Report, supra note 161 at para. 6.13.

¹⁶⁵ Ibid, at para. 7.05.

¹⁶⁶ Ibid, at para. 7.07.

¹⁶⁷ Ibid, at paras. 7.09 and 7.10.

¹⁶⁸ Here, the Panel adopts a different approach from the one later taken in Reformulated Gasoline and says that a country should not have to rely on the cooperation of a foreign country for its conservation policy (Ibid. at para. 7.16). See McRae, Donald M., “The Contribution of International Trade Law to the Development of International Law” (1996) 260 Recueil des cours 99 at 205.Google Scholar

¹⁶⁹ Landing – Salmon and Herring, Chapter 18 Panel Report, supra note 161 at para. 7.38.

¹⁷⁰ Ibid, at para. 7.40

¹⁷¹ Ibid, at para. 7.04.

¹⁷² North American Free Trade Agreement, 17 December 1992, Can. TS. 1994 No.2 [NAFTA].

¹⁷³ For the eventual resolution of the dispute, see McDorman, Ted L., “Using the Dispute Setdement Regime of the Free Trade Agreement: The West Coast Salmon and Herring Problem” (1990–91) 4 Canada-U.S. Bus. L. Rev. 177.Google Scholar

¹⁷⁴ Landing – Salmon and Herring, Chapter 18 Panel Report, supra note 161 at para. 7.14.

¹⁷⁵ Ibid, at para. 7.09 and Panel footnote 14.

¹⁷⁶ Wirth, D. A., “The Role of Science in the Uruguay Round and NAFTA Trade Disciplines” (1994) 27 Cornell Int’l L.J. 817 Google Scholar. See further EC-Measures Concerning Meat and Meat Products (Hormones), Appellate Body Report, Doc. WT/DS26/ AB/R, Doc. WT/DS48/AB/R, adopted 13 February 1998, para. 118, and paras. 112-19 generally [Beef Hormones].

¹⁷⁷ Landing – Salmon and Herring, Chapter 18 Panel Report, supra note 161 at para. 7:11: “The Panel was aware that each state has the sovereign right to decide upon the particular conservation policies it wishes to employ. But, at the same time, the Panel was required to take account of the obligations that Canada and the United States have accepted, under GATT and the FTA regarding trade-restricting conservation measures. The preamble to GATT Article XX, which expressly prohibits ’disguised’ actions on international trade, is an acknowledgement by the Parties that they will submit the purpose of trade-restricting conservation measures to third party scrutiny. By directing the application of this provision, the Panel’s terms of reference required the Panel to make its own independent evaluation of the conservation justification in question.”

¹⁷⁸ Note the tests used in Australia–Measures Affecting Importation of Salmon, Appellate Body Report, Doc. WT/DS18/AB/R, adopted 6 November 1998 [Australia – Salmon], concerning Article 5.5 of the SPS Agreement, supranote 2. Article 5.5 prohibits arbitrary or unjustifiable distinctions in levels of sanitary or phytosanitary protection if those distinctions result in discrimination or disguised restriction on trade. The Appellate Body upheld the finding of breach and approved the Panel’s use of certain warning signals and other factors, including differences in the levels of protection between the salmon products at issue and other products presenting similar risks, the lack of an appropriate risk assessment and the absence of internal controls (paras. 159–78 and 237–40). In Beef Hormones, the Appellate Body reversed a Panel finding of breach of Article 5.5 relating, in part, to distinctions between treatment of the hormones at issue and other substances known to be harmful. The degree of difference in the levels of protection was a factor, but it was out-weighed by other factors. There was no evidence that the prohibition had been adopted due to lobbying from the domestic industry, but there was evidence of the depth and extent of public anxiety over the health effects of growth hormones (Beef Hormones, supra note 176 at paras. 239–46.)

¹⁷⁹ Beef Hormones, Appellate Body Report, supra note 176 at para. 104.

¹⁸⁰ European Communities – Conditions for the Granting of Tariff Preferences to Developing Countries, Appellate Body Report, Doc. WT/DS246/AB/R, adopted 20 April 2004, para. 98: “In sum, in our view, the characterization of the Enabling Clause as an exception in no way diminishes the right of Members to provide or to receive ’differential and more favourable treatment’ … Whatever its characterization, a provision of the covered agreements must be interpreted in accordance with the ’customary rules of interpretation of public international law,’ as required by Article 3.2 of the Understanding on Rules and Procedures Governing the Settlement of Disputes.”

¹⁸¹ As well, perhaps the Appellate Body considered that Canada might start new procedures to try to prove likeness of the products. See Marceau, Gabrielle, “L’affaire ’CE – Amiante’ et la nouvelle jurisprudence de l’Organe d’appel de l’OMC concernant les risques à la santé” (2000) 38 Can. Y.B. Int’l L. 213 at 223-24.Google Scholar

¹⁸² Asbestos, Appellate Body Report, supra note 4 at para. 163.

¹⁸³ Ibid, at para. 168.

¹⁸⁴ Asbestos, Panel Report, supra note 4 at paras. 8.163–8.165. See Ibid, at paras. 3.50–3.58, 3.120–3.127, and 3.137–3.168. Canada argued that the only risk came from past use of asbestos, which the measure did nothing to address. Note that this argument becomes less forceful when the chosen level of protection is defined as a halt in the spread of the risk. If it had been determined that the goal was to protect the populace from asbestos exposure, Canada’s argument over the failure to remedy past uses might have had more weight.

¹⁸⁵ Asbestos, Appellate Body Report, supra note 4 at para. 169.

¹⁸⁶ Ibid, at para. 170, emphasis added by the Appellate Body, quoting from Thailand – Restrictions on Importation of and Internal Taxes on Cigarettes, GATT Panel Report, adopted 7 November 1990, BISD 37S/200, para 75 [Thailand – Cigarettes]. In that dispute, Thailand was unsuccessful in its claim for an Article XX (b) exemption for its restrictions on cigarettes. The GATT Panel found that there were other options reasonably available to limit smoking, such as nondiscriminatory labelling and bans on advertising, and the practice of restricting imports while permitting sales of domestic cigarettes was therefore not necessary (Ibid, at para. 81).

¹⁸⁷ Charnovitz, Steve, “Exploring the Environmental Exceptions in GATT Article XX” (1991) 25(5) J. World Trade 37 Google Scholar at 49-50; Robert Howse, “Managing the Interface between International Trade Law and the Regulatory State: What Lessons Should (and Should Not) Be Drawn from the Jurisprudence on the United States Dormant Commerce Clause,” in Thomas Cottier and Petros Mavroidis, C., eds., Regulatory Barriers and the Principle of Non-Discrimination in World Trade Law (Ann Arbor: University of Michigan Press, 2000), 139 at 140.Google Scholar

¹⁸⁸ Asbestos, Appellate Body Report, supra note 4 at para. 172, quoting Korea – Measures Affecting Imports of Fresh, Chilled and Frozen Beef, Appellate Body Report, Doc. WT/DS161/AB/R, WT/DS169/AB/R, adopted to January 2001, para. 163 [Korea – Beef].

¹⁸⁹ Asbestos, Appellate Body Report, supra note 4 at para. 172, quoting Korea – Beef, Appellate Body Report, supra note 188 at para. 162.

¹⁹⁰ Asbestos, Appellate Body Report, supra note 4 at paras. 174 and 175.

¹⁹¹ Ibid, at para. 172.

¹⁹² For early precedents developing the least-trade-restrictive test for Article XX (d), see United States – Section 337 of the TariffAct of 1930, GATT Panel Report, adopted 7 November 1989, BISD 36S/345; European Economic Community – Regulton on Imports of Parts and Components, GATT Panel Report, adopted 16 May 1990, BISD 37S/132.

¹⁹³ See Canada – Measures Relating to Exports of Wheat and Treatment of Imported Grain, Panel Report, Doc. WT/DS276/R, as upheld by the Appellate Body Report, WT/DS/276/AB/R, adopted 27 September 2004 (Article XX(d) — issue not appealed to Appellate Body), paras. 6.220-6.226 [Canada – Wheat]. The Panel stated that reasonable availability could be determined on the basis of the effectiveness of the alternative measure in producing the desired result, the relative administrative, financial and technical burdens and “the trade impact of the alternative measure compared to that of the measure for which justification is claimed”(Ibid, at para. 6.226 and Panel footnote 311). To reduce the emphasis of the trade interests, it would be preferable to reduce the weight given to the last-mentioned factor. The Canada – Wheat approach can be compared to footnote 3 in the SPS Agreement: “For purposes of paragraph 6 of Article 5, a measure is not more trade-restrictive than required unless there is another measure, reasonably available taking into account technical and economic feasibility, that achieves the appropriate level of sanitary or phytosanitary protection and is significantly less restrictive to trade.”

¹⁹⁴ See Dominican Republic – Measures Affecting the Importation and Internal Sale of Cigarettes, Appellate Body Report, Doc. WT/DS302/AB/R, adopted 19 May 2005. In its decision, the Appellate Body considers several factors concerning reasonable availability (“the trade impact … the importance of the interests protected by the measure,… the contribution of the measure to the realization of the end pursued") but sees the factors as information for the decision on the least-trade-restrictive test (para. 70). See further United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services, Appellate Body Report, Doc. WT/DS285/AB/R, adopted 20 April 2005, paras. 307–08, concerning Article XIV(a) of the General Agreement on Trade in Services, WTO Agreement, supra note 2, Annex lB.

¹⁹⁵ Shrimp/Turtle 1998, Appellate Body Report, supra note 5 at para. 141.

¹⁹⁶ Disputes dealing with GATT Article XI:2(c) have not adopted a least-trade-restrictive approach in interpreting the reference in that article to import restrictions “necessary to the enforcement” of certain governmental measures. The decisions have examined factors such as whether the products covered in the import restriction were the same as those affected by the governmental measure and whether the import restriction made the measure effective: Japan – Restrictions on Imports of Certain Agricultural Products, GATT Panel Report, adopted 2 2 March 1988, BISD 35S/163 [Japan – Agricultural Products I}; Canada – Import Restrictions on Ice Cream and Yoghurt, GATT Panel Report, adopted 5 December 1989, BISD 36S/68; Thailand – Cigarettes, GATT Panel Report, supra note 186 at para. 70.

¹⁹⁷ Argentina – Measures Affecting the Export of Bovine Hides and the Import of Finished Leather, Panel Report, Doc. WT/DS155/R, adopted 16 February 2001.

¹⁹⁸ Ibid, at para. 11.299.

¹⁹⁹ Ibid, at paras. 11.304–11.308.

²⁰⁰ Since the Panel found that a system of compensation would make the measure consistent with Article 111:2 (Ibid, at para. 11.329), a least-trade-restrictive test under paragraph (d) presumably should have disqualified the measure from provisional justification under paragraph (d). It appears that the Panel was not applying a least-trade-restrictive interpretation to paragraph (d).

²⁰¹ Asbestos, Panel Report, supra note 4 at paras. 8.128–8.132.

²⁰² Asbestos, Appellate Body Report, supra note 4 at paras. 113–16.

²⁰³ In the context of the Asbestos appeal, however, the Appellate Body did complete its analysis of Article XX. Note that both the Panel and the Appellate Body accepted that the Note Ad Article III required review of the French measure to be only under Article III and not under Article XI as a quantitative restriction. The relationship between Articles III and XI is discussed in the second section of this part.

²⁰⁴ Asbestos, Panel Report, supra note 4 at para. 8.188, quoted in Asbestos, Appellate Body Report, supra note 4 at para. 114.

²⁰⁵ Border Tax Adjustments, Report of the GATT Working Party, adopted 2 December 1970, BISD 18S/97, para. 18 (as suggested criteria for similarity of products). The list is repeated in Japan – Customs Duties, Taxes and Labelling Practices on Imported Wines and Alcoholic Beverages, GATT Panel Report, adopted 10 November 1987, BISD 34S/83,para. 5.6 (dealing with Article 111:2) [Japan – Alcoholic Beverages I], with the additional mention of tariff classification, a factor used in EEC – Measures on Animal Feed Proteins, GATT Panel Report, adopted 14 March 1978, BISD 258/49, para. 4.2 (dealing with, inter alia, Article 111:2 and 111:4). See also Japan – Taxes on Alcoholic Beverages, Appellate Body Report, Doc. WT/DS8/AB/ R, Doc. WT/DS10/AB/R, Doc. WT/DSi l/AB/R, adopted 1 November 1996, DSR 1996:1, 97 at 113 (dealing with Article 111:2) [Japan – Alcoholic Beverages II]; Canada – Certain Measures Concerning Periodicals, Appellate Body Report, Doc. WT/DS31/R, adopted 30 June igg7, DSR 1997:1, 449 at 466 (dealing with Article III:a and 111:8) [Canada – Periodicals]. In a dispute concerning Article 111:4, products were found to be like because they “have exactíy the same physical characteristics, end-uses, tariff classification and are perfectly substituíanle” in United States – Standards for Reformulated and Conventional Gasoline, Panel Report, Doc. WT/DS2/R, as modified by the Reformulated Gasoline, Appellate Body Report, supra note 114 at para. 6.9 (finding not appealed to the Appellate Body).

²⁰⁶ Asbestos, Appellate Body Report, supra note 4 at para. 101.

²⁰⁷ Ibid, at paras. 122, 130, and 145.

²⁰⁸ Ibid, at paras. 93–100.

²⁰⁹ Ibid, at para. 99. See para. 103.

²¹⁰ Ibid, at para. 117.

²¹¹ Ibid, at para. 101.

²¹² Asbestos, Panel Report, supra note 4 at paras. 3.55 and 3.56 (Canada’s submissions); paras. 3.63, 3.171, and 3.296 (EC submissions).

²¹³ Asbestos, Appellate Body Report, supra note 4 at para. 101.

²¹⁴ For a discussion of the end use factor in tariff classification, including both purpose and function, see Irish, Maureen, “Interpretation and Naming: The Harmonized System in Canadian Customs Tariff Law” (1993) 31 Can. Y.B. Int’l Law 89.Google Scholar

²¹⁵ Asbestos, Appellate Body Report, supra note 4 at para. 122. Note that the Appellate Body decided to examine the alleged health risks only under the criteria of physical properties and consumers’ tastes and habits, not end use (paras. 113 and 122).

²¹⁶ See Japan – Alcoholic Beverages II, Appellate Body Report, supra note 205 at DSR 1996:1, 97 at 110. Note, however, that Article III applies even in the absence of tariff bindings for the goods in question: ibid., citing Brazilian Internal Taxes, GATT Panel Report, adopted 30 June 1949, BISD II/181, para. 4; United States – Taxes on Petroleum and Certain Imported Substances, GATT Panel Report, adopted 17 June 1987, BISD 34S/136, para. 5.1.9; EEC – Regulation on Imports of Parts and Components, GATT Panel Report, adopted 16 May 1990, BISD 37S/132, para. 5.4.

²¹⁷ Japan – Alcoholic Beverages I, supra note 205 at para. 5.7. Imported vodka and shochu were again found to be like products in 1996 in Japan – Alcoholic Beverages II, supra note 205 (Panel finding, affirmed on appeal). Both of these analyses involved the first sentence of Article 111:2. See further Korea – Taxes on Alcoholic Beverages, Appellate Body Report, Doc. WT/DS75/AB/R, Doc. WT/DS84/AB/ R, adopted 17 February 199g [Korea – Alcoholic Beverages], especially the Panel Report in that dispute, WT/DS75/R, WT/DS84/R, at paras. 10.70–10.76, rejecting a similar defence by Korea under the second sentence of Ardele 111:2, relating to beverages consumed in traditional-style restaurants. The consumer perspectives in these disputes did not prevent findings that the national treatment obligation had been breached.

²¹⁸ Note the following, published before the Asbestos decision: “It is worth emphasizing that article 111:2, second sentence, prohibits tax differentials between products which, while not ’like,’ are ’direcüy competitive,’ but there is no counterpart in article 111:4, which covers internal regulations. Accordingly, article 111:4 appears to grant more leeway with respect to differential regulatory treatment of ’direcüy competitive’ products than differential taxation” [emphasis in original]. Maruyama, Warren H. “A New Pillar of the WTO: Sound Science” (1998) 32 Int’l Law. 651 at 674.Google Scholar Presumably, the Appellate Body sought to avoid exactly this distinction.

²¹⁹ Asbestos, Appellate Body Report, supra note 4 at para. 99.

²²⁰ Ibid, at para. 96.

²²¹ Japan – Alcoholic Beverages II, Appellate Body Report, supra note 205 at 117. See Japan – Alcoholic Beverages II, Panel Report, supra note 205 at paras. 4.82 and 6.28–6.32. The Panel also mentioned that marketing strategies could be a relevant criterion (para. 6.28), although they were not significant in that decision.

²²² Korea – Alcoholic Beverages, Panel Report and Appellate Body Report, supra note 217. Quantitative analysis of cross-price elasticity is discussed at paras. 121–24, 132–34 in the Appellate Body report.

²²³ Korea – Alcoholic Beverages, Panel Report, supra note 217 at paras. 10.103–10.104. This issue was not appealed to the Appellate Body. In its interpretation of the second sentence of Article 111:2, the Appellate Body contrasted the products covered by that sentence that might be “imperfectly substitutable,” with the like products covered by the first sentence that would be “perfectly substitutable.” See Korea – Alcoholic Beverages, Appellate Body Report, supra note 217 at para. 118.

²²⁴ Chile – Taxes on Alcoholic Beverages, Panel Report, Doc. WT/DS87/R, Doc. WT/ DS110/R, as upheld by the Appellate Body Report, Doc. WT/DS87/AB/R, Doc. WT/DS110/AB/R, adopted 12 January 2000 [Chile – Alcoholic Beverages]. Chile had argued that pisco was distinct from the imported distilled spirits, since pisco was made from grapes while the spirits (for example, whisky) were made from grain. The Panel noted that some of the imported spirits were also made from grapes and remarked that physical characteristics were more significant concerning “like” products than products alleged to be “directly competitive or substitutable” (Panel Report, paras. 7.50–7.54). In its reasoning, the Panel also mentioned the opinion of a domestic Chilean anti-trust agency that there was competition between domestically-produced pisco and other alcoholic beverages. In the Panel’s view, this opinion confirmed the Panel’s finding of “directly competitive or substitutable” products (Panel Report, paras. 7.86–7.87). As this finding was not appealed, the relevant list of factors and the treatment of the domestic anti-trust opinion were not examined by the Appellate Body, which upheld the Panel’s decision that there was a defacto breach of Article III. 2. See also Canada – Periodicals, supra note 205 at 472–73, where the Appellate Body mentioned a domestic governmental Task Force report that acknowledged the competition between US magazines and English-language Canadian magazines, seen as confirming the finding that the goods were “directly competitive or substitutable” Carmody, Chi, “When ’Cultural Identity was not at Issue’: Thinking about Canada – Certain Measures Concerning Periodicals ” (1999) 30(2) Law & Pol’y Int’l Bus. 231.Google Scholar

²²⁵ Concerning interpretation of the phrase “like and/or directly competitive products” in Article 6.2 of the Agreement on Textiles and Clothing, see United States – Transitional Safeguard Measure on Combed Cotton Yarn from Pakistan, Appellate Body Report, Doc. WT/DS192/AB/R, adopted 5 November 2001, paras, 91, 94-98.

²²⁶ Korea – Alcoholic Beverages, Panel Report, supra note 217 at para. 10.40. See Korea – Alcoholic Beverages, Appellate Body Report, supra note 217 at para. 115.

²²⁷ Asbestos, Appellate Body Report, supra note 4 at para. 101.

²²⁸ See further Kysar, Douglas A., “Preferences for Processes: The Process/Product Distinction and the Regulation of Consumer Choice Preferences” (2004) 118 Harv. L. Rev. 525.CrossRefGoogle Scholar

²²⁹ Asbestos, Appellate Body Report, supra note 4 at para. 99

²³⁰ Choi, Won-Mog, “Like Products” in International Trade Law: Towards a Consistent GATT/WTO Jurisprudence (Oxford: Oxford University Press, 2003) at 111–14 CrossRefGoogle Scholar. There are differences as well in the standards of discrimination that constitute breach: taxation “in excess of taxes on like products (Article III:a, first sentence); dissimilar taxation of direcüy competitive or substitutable products “so as to afford protection to domestic production” (Article III:a, second sentence and the note addendum) and non-fiscal regulation resulting in treatment that is “less favourable” than the treatment of domestic like products (Article 111:4).

²³¹ Reinhard Quick and Christian Lau suggest the example of refrigerators banned because they contain chlorofluorocarbons (CFCs): Quick, Richard and Lau, Christian, “Environmentally Motivated Tax Distinctions and WTO Law: The European Commission’s Green Paper on Integrated Product Policy in Light of the ’Like Product-’ and ’PPM-’ Debates” (2003) J. Int’l Econ. L. 419 CrossRefGoogle Scholar at 435–36. If the “like products” test is fundamentally about market competition rather than physical characteristics, the acceptability of such a ban could be made to depend on whether consumers distinguished between refrigerators with CFCs and those without — presumably prior to the imposition of the ban. See further: Marco Bronckers and Natalie McNelis, “Rethinking the ’Like Product’ Definition in GATT 1994: Anti-Dumping and Environmental Protection,” in Cottier, Thomas and Mavroidis, Petros C., eds., Regulatory Barriers and the Principle of Non-Discrimination in World Trade Law (Ann Arbor: University of Michigan Press, 2000) 345 CrossRefGoogle Scholar at 372–76; Horn, Henrik and Weiler, Joseph H. H., “ EC – Asbestos European Communities — Measures Affecting Asbestos and Asbestos-Containing Products” (2004) 3(1) World Trade Review 129 CrossRefGoogle Scholar at 149–50.

²³² Robert Howse and Elizabeth Tuerk solve this problem by stating that the Appellate Body was presuming “an idealised market-place, one where consumers have full information, and where, at least through tort liability, negative externalities have already to some extent been internalised": Robert Howse and Elizabeth Tuerk, “The WTO Impact on Internal Regulations: A Case Study of the Canada-EC Asbestos Dispute,” in Búrca, Gráinne de and Scott, Joanne, eds., The EU and the WTO: Legal and Constitutional Issues (Oxford and Portland, OR: Hart Publishing, 2001) 283 Google Scholar at 301 [emphasis in original]. This abstraction sits somewhat uncomfortably, however, with the other criteria used to identify like products, which relate to an actual rather than an ideal market.

²³³ European Communities – Regime for the Importation, Sale and Distribution of Bananas, Appellate Body Report, Doc. WT/DS27/AB/5, adopted 25 September 1997, para. 216 [Bananas].

²³⁴ United States — Section 33 7 ofthe Tariff Act of 1930, GATT Panel Report, adopted 7 November 1989, BISD 36S/345 at para. 5.11; Canada – Import, Distribution and Sale of Certain Alcoholic Drinks by Provincial Marketing Agencies, GATT Panel Report, adopted 18 February 1992, BISD 39S/27, para. 5.12. See further, concerning Article 111:2, United States – Taxes on Petroleum and Certain Imported Substances, GATT Panel Report, adopted 17 June 1987, BISD 34S/136, para. 5.1.g (“Article III: 2, first sentence, cannot be interpreted to protect expectations on export volumes; it protects expectations on the competitive relationship between imported and domestic products”); Japan – Alcoholic Beverages I, GATT Panel Report, supra note 205 at para. 5.16; United States – Alcoholic and Malt Beverages, GATT Panel Report, adopted 19 June 1992, BISD 39S/206, para. 5.6 [United States – Malt Beverages]; United States – Measures Affecting the Importation, Internal Sale and Use of Tobacco, GATT Panel Report, adopted 4 October 1994, BISD 41S, vol.1/131, para. 99.

²³⁵ This is not quite the same as for the second sentence of Article 111:2, where it adds the test of “the design, the architecture and the revealing structure of a measure” to reflect the specific mention in the sentence (Japan – Alcoholic Beverages II, Appellate Body Report, supra note 205 at 120).

²³⁶ Hudec, Robert E., “GATT/WTO Constraints on National Regulation: Requiem for an ’Aim and Effects’ Test” (1998) 32 Int’l Law. 619 at 626.Google Scholar

²³⁷ United States – Automobiles, GATT Panel Report, supra note 120.

²³⁸ Japan – Alcoholic Beverages II, Appellate Body Report, supra note 205.

²³⁹ United States – Malt Beverages, supra note 234 at para. 5.74. There was some historical evidence, however, that the measures authorizing sale of the low-alcohol beer were intended to support the establishment of brewing operations. The measures did not distinguish explicitly between imported and domestic products and their burden did not fall more heavily on the imported beer. See further ibid, at paras. 5.25 and 5.26, concerning Mississippi state excise tax on wine.

²⁴⁰ United States– Automobiles, supra note 120 at para. 5.10 [emphasis in original].

²⁴¹ Ibid. [emphasis in original].

²⁴² Ibid. at para. 5.25.

²⁴³ Ibid. at paras. 5.33–5.37. See also paras. 5.11–5.16, concerning a luxury tax on sales of vehicles above a certain price level.

²⁴⁴ Hudec, Robert E., “GATT/WTO Constraints on National Regulation: Requiem for an ’Aim and Effects’ Test” (1998) 32 Int’l Law. 619 Google Scholar at 628-29. See also Choi, Won-Mog, “Like Products” in International Trade Law: Towards a Consistent GATT/WTO Jurisprudence (Oxford: Oxford University Press, 2003) at 82–83 CrossRefGoogle Scholar; and discussion in Daniel A. Färber and Robert E. Hudec, “GATT Legal Restraints on Domestic Environmental Regulations,” in Bhagwati, Jagdish and Hudec, Robert E., eds., Fair Trade and Harmonization: Prerequisites for Free Trade?Vo1. 2, Legal Analysis (Cambridge, MA: MIT Press, 1996), 59.Google Scholar

²⁴⁵ See discussion in Steger, Debra, “Afterword: The ’Trade and’ Conundrum – A Commentary” (2002) 96 Am. J. Int’l L. 135 at 141–45.CrossRefGoogle Scholar

²⁴⁶ Japan – Alcoholic Beverages II, Appellate Body Report, supra note 205 at 111.

²⁴⁷ Japan – Alcoholic Beverages II, Appellate Body Report, supra note 205 at 120. Government statements showing protectionist intent were used as an additional factor in Canada – Periodicals, supra note 205 at 474-76. See discussion of the use of such statements in Chile – Alcoholic Beverages, Panel Report, supra note 224 at paras. 7.116-7.120 (compare with Appellate Body Report, generally upholding the Panel’s approach, paras. 61–76).

²⁴⁸ Asbestos, Panel Report, supra note 4 at para. 8.239.

²⁴⁹ Hudec, Robert E., “GATT/WTO Constraints on Naüonal Regulation: Requiem for an ’Aim and Effects’ Test” (1998) 32 Int’l Law. 619 at 619.Google Scholar

²⁵⁰ Howse and Tuerk, supra note 232 at 305. See discussion in William J. Davey and Joost Pauwelyn, “MFN Unconditionality: A Legal Analysis of the Concept in View of its Evolution in the GATT/WTO Jurisprudence with Particular Reference to the Issue of ’Like Product,’” in Cottier, Thomas and Mavroidis, Petros C., eds., Regulatory Barriers and the Principle of Non-Discrimination in World Trade Law (Ann Arbor: University of Michigan Press, 2000), 13 at 40.CrossRefGoogle Scholar

²⁵¹ Roessler, Frieder, “Beyond the Ostensible: A Tribute to Professor Robert Hudec’s Insights on the Determination of the Likeness of Products under the National Treatment Provisions of the General Agreement on Tariffs and Trade” (2003) 37 (4) J. World Trade 771 Google Scholar at 780; Porges, Amelia and Porges, Joel P., “Robert Hudec and Domestic Regulation: The Resurrection of Aim and Effects” (2003) 37(4) J. World Trade 783.Google Scholar

²⁵² Marceau, Gabrielle and Trachtman, Joel P., “The Technical Barriers to Trade Agreement, the Sanitary and Phytosanitary Measures Agreement, and the General Agreement on Tariffs and Trade: A Map of the World Trade Organization Law of Domestic Regulation of Goods” (2002) 36(5) J. World Trade 811 at 821-22 and 875.CrossRefGoogle Scholar

²⁵³ Howse and Tuerk, supra note 232 at 297–99.

²⁵⁴ Hudec, Robert E., “The Product-Process Doctrine in GATT/WTO Jurisprudence,” in Marco Bronckers and Reinhard Quick, eds., New Directions in International Economic Law: Essays in Honour of John H. Jackson (The Hague/London/ Boston: Kluwer Law International, 2000), 187 Google Scholar at 198; Howse and Regan, supra note 146 at 254–55.

²⁵⁵ Hudec, Robert E., “GATT Legal Restraints on the Use of Trade Measures against Foreign Environmental Practices,” in Bhagwati, Jagdish and Hudec, Robert E., eds., Fair Trade and Harmonization: Prerequisitesfor Free Trade?, Vol. 2, Legal Analysis (Cambridge, MA: MIT Press, 1996) 95 Google Scholar at 119, 151; Howse and Regan, supra note 146 at 274-79; Howse, Robert, “The Appellate Body Rulings in the Shrimp/ Turtle Case: A New Legal Baseline for the Trade and Environment Debate” (2002) 27 Colum. J. Envtl. L. 489 Google Scholar at 509–14. Howse argues that specific certificates are to be distinguished from certification based on country of origin, which would raise concerns about extraterritoriality. For analysis in public international law that does not adopt the same distinction, see Bartels, Lorand, “Article XX of GATT and the Problem of Extraterritorial Jurisdiction: The Case of Trade Measures for the Protection of Human Rights” (2002) 36(2) J. World Trade 353 at 381–82.CrossRefGoogle Scholar

²⁵⁶ Tuna/Dolphin I, supra note 120; Tuna/Dolphin II, supra note 120.

²⁵⁷ Lopez-Hurtado, Carlos, “Social Labelling and WTO Law” (2002) 5(3) J. Int’l Econ. L. 719 at 743.CrossRefGoogle Scholar

²⁵⁸ The definition of “sanitary or phytosanitary measure” in the SPS Agreement, supra note 2, Annex A, includes “processes and production methods” as well as “quarantine treatments including relevant requirements associated with the transport of animals or plants, or with the materials necessary for their survival during transport.” Some of these measures might be extraterritorial and might not relate to product characteristics: see Marceau and Trachtman, supra note 252 at 862.

²⁵⁹ The parties had agreed that Article 111:4 applied to the internal bans on sale, marketing, and transfer (Asbestos, Panel Report, supra note 4 at para. 8.87).

²⁶⁰ Asbestos, Panel Report, supra note 4 at para. 8.89. See the French version of the Note: “Toute taxe ou autre imposition intérieure ou toute loi, réglementation ou prescription visées au paragraph premier, qui s’applique au produit importé comme au produit national similaire” [emphasis added].

²⁶¹ See the measure itself, in Asbestos, Appellate Body Report, supra note 4 at para. 2.

²⁶² Asbestos, Panel Report, supra note 4 at para. 8.90.

²⁶³ Ibid, at para. 8.100

²⁶⁴ Canada – Import, Distribution and Sale of Certain Alcoholic Drinks by Provincial Marketing Agencies, GATT Panel Report, adopted 22 March 1988, BISD 35S/37 [Canada – Alcohol 1988]. See Panel Report, Asbestos, supra note 4 at para. 8.97.

²⁶⁵ Canada – Alcohol 1988, supra note 264 at para. 4.26. By the time of the decision in Canada – Import, Distribution and Sale of Certain Alcoholic Drinks by Provincial Marketing Agencies, GATT Panel Report, adopted 18 February 1992, BISD 39S/ 27, Canada had accepted that Article 111:4 applied to liquor board practices (para. 5.6), and the Panel found that restrictions on private delivery of beer as well as a system of minimum prices breached Ardele 111:4. The Panel in Korea – Beef, supra note 188, accepted that both MFN and national treatment obligations applied in the case of imports by state trading enterprises (para. 753). The question of whether the non-discriminatory treatment stipulated in Article XVII for exports by state trading enterprises was only MFN and not national treatment arose in the Panel decision in Canada – Wheat, supra note 193 at paras. 6.44-6.50, but was not resolved by the Panel.

²⁶⁶ Asbestos, Panel Report, supra note 4 at para. 8.97, using language from Canada – Alcohol 1988, supra note 264 at para. 4.24. The Panel in Korea – Beef also noted that this distinction blurs for state trading agencies (para. 766). That Panel found some practices of the state trading agency in question contrary to Article XI — practices relating to tenders and distribution, including calls for tenders that distinguished between grass-fed and grain-fed beef. Other practices were found to be contrary to other GATT Ardeles, including Article 111:4 (see also Korea – Beef, Panel Report, supra note 188 at para. 705). The Article XI issues were not appealed to the Appellate Body.

²⁶⁷ The Asbestos Panel also referred in para. 8.95 to GATT Panel Report, United States – Section 337 of the Tariff Act of 1930, adopted 7 November 1989, BISD 36S/345, which applied Article 111:4 and the Note Ad Article III to find that certain border measures enforcing domestic patent law were in breach of US obligations. None of the submissions in that dispute argued that Article XI should have applied instead, presumably due to the general understanding of the Note Ad Article III.

²⁶⁸ But other WTO agreements may apply, especially the SPS Agreement. See European Communities – Measures Affecting the Approval and Marketing of Biotech Products, Requests for the Establishment of a Panel by the United States (Doc. WT/DS291/23), by Canada (Doc. WT/DS292/17) and by Argentina (Doc. WT/DS293/17), 8 August 2003.

²⁶⁹ The Asbestos Panel noted that the decree was the reason why production in France had ceased (para. 8.91). In a somewhat different context, the Panel in Canada – Wheat, supra note 193, noted that an origin-based distinction between domestic and imported products can be found contrary to Article 111:4 even without identification and comparison of specific domestic goods. Citing Argentina – Measures Affecting the Export of Bovine Hides and Import of Finished Leather, Panel Report, Doc. WT/DS155/R and Corn, adopted 16 February 2001, paras. 11.168-11.170 and United States – Tax Treatment for “Foreign Saks Corporations, “Recourse to Article 21.5 oftheDSU by theEuropean Communities, Panel Report, Doc. WT/DS108/RW, as modified by the Appellate Body Report, Doc. WT/ DS108/AB/RW, adopted 29 January 2002, paras. 8.132–8.134, the Canada – Wheat Panel stated that it was sufficient that there could or would be domestic and imported products that were like (para. 6.164). The issue concerning the application of Article 111:4 was not appealed to the Appellate Body. If national treatment is to be a complete answer or defence for measures such as the import ban in Asbestos, then the same idea of a notional domestic market should probably be applied. It would be possible to make the acceptability of an import ban depend on the actual level or volume of domestic production halted when the measure was adopted, but such a standard would be difficult to apply. If national treatment is a complete answer, then the fact of the internal ban should probably be enough, even if both imports and domestic production were future contingencies when the measure was adopted.

²⁷⁰ Tuna/Dolphin I, GATT Panel Report, supra note 120. See further Tuna/Dolphin II, GATT Panel Report, supra note 120.

²⁷¹ Tuna/Dolphin I, GATT Panel Report, supra note 120 at para. 5. ι 1. In para. 5.15, the Panel noted that cargoes could be seized for breach of the domestic fishing restrictions. In case this could be considered as regulating domestic sale, the Panel made an alternate finding that rejected the use of the production method as a factor for the determination of like products.

²⁷² Shrimp/Turtle 1998, Panel Report, supra note 5 at para. 3.143.

²⁷³ GATT decisions have held that Article XI distinguishes between complete bans (“prohibitions”) and partial bans or quotas (“restrictions”): United States — Prohibition of Imports of Tuna and Tuna Products from Canada, GATT Panel Report, adopted 22 February 1982, BISD 29S/91 at para. 4.6; Japan–Agricultural Products I, GATT Panel Report, supra note 196 at para. 5.1.3.1; European Economic Community – Restrictions on Imports of Dessert Apples, Complaint by Chile, GATT Panel Report, adopted 22 June 1989, BISD 36S/93 at para. 12.5; Canada – Import Restrictions on Ice Cream and Yoghurt, GATT Panel Report, adopted 5 December 1989, BISD 36S/68 at paras. 62–63.

²⁷⁴ Lobsters from Canada, Final Report of the Panel, 25 May 1990, 3 T.C.T. 8182 [Lobstersfrom Canada]. See Canada’s note to the Final Report: “With respect to the Final Report of the Panel on Lobsters from Canada, the Government of Canada wishes to record its view that the opinion of the minority represents the correct interpretation of the relevant provisions of the FTA and GATT. The government of Canada maintains the position set out in its various submissions in this case.” See further McDorman, Ted L. “Dissecting the Free Trade Agree-ment Lobster Panel Decision” (1991) 18 Can. Bus. L.J. 445.Google Scholar

²⁷⁵ Ibid, at para. 8.3.10.

²⁷⁶ The minority took a wide view of what constituted a prohibition and found that the US measure was a “complete prohibition on the sale, use or transportation of … sub-sized lobsters” (para.8.3.3) that prevented them from entering the market, rather than merely imposing conditions on sale within the market, which would have been governed by Article III.

²⁷⁷ See, for example, the trade balancing requirement found in breach of Article XI by the Panel in India – Measures Affecting the Automotive Sector, Doc. WT/DS146/ R, Doc. WT/DS175/R, adopted 5 April 2002 (appeal by India to the Appellate Body withdrawn).

²⁷⁸ For cookies at least, although not for peanuts.

²⁷⁹ Note the views of Professor McGovern, which appear consistent with this analysis in some respects: “[W]hile Article III… permits internal quantitative measures provided both imported and domestic products are included within their scope, Article XI does not allow such action against domestic goods to jusdfy restrictions imposed at the point of importation (save to a limited extent in respect of agricultural goods).” This interpretation thus allows scope for the application of Article XI at the border in the case of quantitative measures. ( McGovern, Edmond, International Trade Regulation (Exeter: Globefield Press, 1995, looseleaf) at para. 8.211).Google Scholar

²⁸⁰ WTO Agreement, supra note 2.

²⁸¹ Marceau, Gabrielle, “L’affaire ’CE – Amiante et la nouvelle jurisprudence de l’Organe d’appel de l’OMC concernant les risques à la santé” (2000) 38 Can. Y.B. Int’l L. 213 at 230–31.Google Scholar

²⁸² SPS Agreement, supra note 2 at Article 2.4.

²⁸³ WTO Agreement, supra note 2, Annex lA.

²⁸⁴ Marceau and Trachtman, supra note 252 at 867 ff.

²⁸⁵ SPS Agreement, supra note 2, Annex A, Definitions.

²⁸⁶ Note the interpretation of this provision by the Appellate Body in Beef Hormones, supra note 176. The Appellate Body determined that harmonizadon was a goal of the SPS Agreement, but that members were not required to conform to the international standards immediately (Beef Hormones, supra note 176 at para. 165; see SPS Agreement, supra note 2, Preamble, Article 12.4). The Appellate Body elaborated on this interpretation concerning a similar obligation in the TBT Agreement in EC – Trade Description of Sardines, Appellate Body Report, Doc. WT/DS231 /AB/R, adopted 23 October 2002 [Sardines]. In that decision, the obligadon to use international standards “as a basis” for domestic technical regulations (TBT Agreement, supra note 2 at Article 2.4) was held to mean that, while conformity was not required, the international standard still must be a “principal constituent,” “fundamental principle,” “main constituent” and “determining principle” of the domestic measure (Sardines, Appellate Body Report, para. 245).

²⁸⁷ See also Article 2.2. In Beef Hormones, the Appellate Body noted the footnote to Article 3.3, which ties “scientific justification” to the evaluation of scientific evidence in accordance with the rest of the agreement. The Appellate Body found a general obligation to conduct risk assessments in accordance with Article 5.1 (Beef Hormones, supra note 176 at paras. 172–76). See further Australia – Salmon, Appellate Body Report, supra note 178; Japan — Measures Affecting Agricultural Products, Appellate Body Report, Doc. WT/DS76/AB/R, adopted 19 March 1999 [Japan – Agricultural Products II]; Japan – Measures Affecting the Importation of Apples, Appellate Body Report, Doc. WT/DS245/AB/R, adopted 10 December 2003 [Japan – Apples]; Howse, Robert, “Democracy, Science, and Free Trade: Risk Regulation on Trial at the World Trade Organization” (2000) 98 Mich. L. Rev. 2329.CrossRefGoogle Scholar

²⁸⁸ SPS Agreement, supra note 2, Preamble

²⁸⁹ Note that Article 5.5 differs from the introductory words of GATT Article XX. Article 5.5 requires that a member “avoid arbitrary or unjustifiable distinctions in the levels [of sanitary or phytosanitary protection] it considers to be appropriate in different situations, if such distinctions result in discrimination or a disguised restriction on international trade.” In Beef Hormones, supra note 176, the Appellate Body reversed a Panel finding of breach of this provision. In Australia – Salmon, supra note 178, a Panel finding of inconsistency with Article 5.5 was upheld by the Appellate Body.

²⁹⁰ The least-trade-restrictive test is explained as follows in a footnote to Article 5.6: “[A] measure is not more trade-restrictive than required unless there is another measure, reasonably available taking into account technical and economic feasibility, that achieves the appropriate level of sanitary or phytosanitary protection and is significantly less restrictive to trade.” The requirement that the alternate measure be “significandy” less trade-restrictive and the mention of economic feasibility may allow domestic governments extra leeway. On the other hand, Article 5.4 reinforces the trade priority and could restrict governments in their choice of levels of protection: “Members should, when determining the appropriate level of sanitary or phytosanitary protection, take into account the objective of minimizing negative trade effects.” In Australia – Salmon, supra note 178 and Japan – Agricultural Products II, supra note 287, the Appellate Body reversed Panel findings of inconsistency with Article 5.6.

²⁹¹ In Asbestos, the Appellate Body upheld the Panel’s finding of a health risk that reflected the views of the four scientific experts consulted by the Panel as well as the views of certain international organizations including the World Health Organization (Asbestos, Appellate Body Report, supra note 4 at para. 162). The standard used by the Panel was whether a public health official could reasonably conclude that there was evidence of a risk (Asbestos, Panel Report, supra note 4 at para. 8.193, see paras. 8.184-8.195) and whether the measure in question was designed and apt to meet that risk (Appellate Body Report, para. 168). This is not as detailed as a risk assessment under Article 5 of the SPS Agreement: see Appellate Body Reports in Beef Hormones, supra note 176, Australia – Salmon, supra note 178, Japan – Agricultural Products II, supra note 287, Japan – Apples, supra note 287.

²⁹² In Japan – Apples, after finding breaches of various SPS Agreement provisions, the Panel decided not to proceed with analysis of claims under GATT Article XI. This aspect of the Panel decision was not appealed (Japan – Apples, Appellate Body Report, supra note 287 at para. 4).

²⁹³ Some of the introductory wording of Article XX is repeated in the preamble of the TBT Agreement, supra note 3, where the environment is specifically mentioned.

²⁹⁴ The opening sentence of Article 2.2 provides that “Members shall ensure that technical regulations are not prepared, adopted or applied with a view to or with the effect of creating unnecessary obstacles to international trade.” This wording (“with a view to or with the effect of) comes very close to adoptíng for this area the “aim and effect” test that was rejected for GATT Article III in Japan – Alcoholic Beverages II, Appellate Body Report, supra note 205 at 119. Despite the explicit incorporation of the least-trade-restrictive test in the second sentence of Article 2.2, members may wish to argue that the first sentence gives them more leeway and makes their non-protective intent relevant. The opening sentence is perhaps more explicit in this regard in the French version: “Les Membres feront en sorte que l’élaboration, l’adoption ou l’application des règlements techniques η ’aient ni pour objet ni pour effet de créer des obstacles non nécessaires au commerce international” (emphasis added). The version in Spanish is as follows: “Los Miembros se asegurarán de que no se elaboren, adopten o apliquen reglamentos técnicos que tengan por objeto o efecto crear obstáculos innecesarios al comercio internacional” [emphasis added]. See Hudec, Robert E., “GATT/WTO Constraints on National Reguladon: Requiem for an ’Aim and Effects’ Test” (1998) 32 Int’l Law. 619;Google Scholar Porges, Amelia and Trachtman, Joel P., “Robert Hudec and Domestic Regulation: The Resurrection of Aim and Effects” (2003) 37(4) J. World Trade 783 Google Scholar; Irish, Maureen, “NAFTA Chapter 9 and the WTO Agreement on Technical Barriers to Trade,” in Kennedy, Kevin C., ed., The First Decade of NAFTA: The Future of Free Trade in North America (Ardsley, NY: Transnational Publishers, 2004) 57 Google Scholar; discussion earlier in the article under Assertion 3.

²⁹⁵ This provision presents some incongruity, since Annex I to the TBT Agreement defines a “standard,” in part, as a “[d]ocument approved by a recognized body, that provides, for common and repeated use, rules, guidelines or characteristics for products or related processes and production methods, with which compliance is not mandatory” [emphasis added]. This definition was applied to Article 2.4 in Sardines, Appellate Body Report, supra note 286 at paras. 217-27.

²⁹⁶ The TBT Agreement, supra note 3, does not require recognition of other members’ domestic measures, as is the case in the SPS Agreement. Concerning technical regulations, the TBT Agreement only requires that members give “positive consideration” to recognition if those regulations “adequately fulfil the objectives” of the importing member’s own regulations (Article 2.7). Other members’ conformity assessment procedures are to be recognized “whenever possible” if those procedures “offer an assurance of conformity with applicable technical regulations or standards equivalent to” the importing member’s own procedures (Article 6.1).

²⁹⁷ Asbestos, Panel Report, supra note 4 at paras. 3.266–3.269

²⁹⁸ Ibid, at paras. 3.273, 3.275, 3.277, 3.279–3.289, 3.298–3.312, and 3.322–3.352

²⁹⁹ Ibid, at paras. 3.358–3.361, 3.369–3.372, and 3.377–3.386. Canada further argued that the measure breached Article 2.8 by failing to base product Standards on performance rather than descriptive characteristics: paras. 3.388–3.389 and 3.392–3.393.

³⁰⁰ Asbestos, Appellate Body Report, supra note 4 at para. 71.

³⁰¹ Ibid, at para. 76.

³⁰² The EC argued that the ILO standards were not covered by the definition of a “standard” in the TBT Agreement and were “ineffective or inappropriate” to meet France’s legitimate objectives within the terms of Article 2.4. The EC also argued that, in any case, the standards had been used as a basis for the French decree, as this did not require complete conformity with the international standards (Asbestos, Panel Report, supra note 4 at paras. 3.362–3.368, 3.373–3.376, and 3.387). The United States supported the argument by the EC that these were not relevant international standards for the purpose of Article 2.4 (Asbestos, Appellate Body Report, supra note 4 at paras. 46–48).

³⁰³ Scientific evidence may be used in application of the test. Article 2.2 of the TBT Agreement, supra note 3, states, in part, that “[i]n assessing … risks, relevant elements of consideration are, inter alia: available scientific and technical information, related processing technology or intended end-uses of products.”

³⁰⁴ Even if Article 2.2 does funcdon as an exemption to Article 2.1, a disjunction could arise in cases governed by GATT Ardele XX(g) which covers conservation and environmental measures. The phrase “relating to … conservation” in GATT Article XX (g) will not have the same interpretation as the necessity and least-trade-restrictive tests of TBT Article 2.2. Thus, a measure acceptable under GATT Article XX (g) could nevertheless breach the TBT Agreement, even if Article 2.2 is construed as a general exemption clause.

³⁰⁵ Sardines, Appellate Body Report, supra note 286 at para. 263.

³⁰⁶ Asbestos, Appellate Body Report, supra note 4 at para. 172, citing Korea – Beef, Appellate Body Report, supra note 188 at para. 162.

³⁰⁷ The footnote is as follows: “For purposes of paragraph 6 of Article 5, a measure is not more trade-restrictive than required unless there is another measure, reasonably available taking into account technical and economic feasibility, that achieves the appropriate level of sanitary or phytosanitary protection and is significantly less restrictive to trade.” In Canada – Wheat, a Panel dealing with GATT Article XX(d) stated that reasonable availability of an alternate measure could be determined on the basis of the effectiveness of that measure in producing the desired result, the relative administrative, financial and technical burdens and “the trade impact of the alternative measure compared to that of the measure for which justification is claimed.” Panel Report, Canada – Wheat, supra note 193, para. 6.226 and Panel footnote 311 (Article XX(d) issue not appealed to Appellate Body).

³⁰⁸ Chang, Seung Wha, “GATTing a Green Trade Barrier: Eco-Labelling and the WTO Agreement on Technical Barriers to Trade” (1997) 31 (1) J. World Trade 137 Google Scholar; Lopez-Hurtado, Carlos, “Social Labelling and WTO Law” (2002) 5(3) J. Int’l Econ. L. 719.CrossRefGoogle Scholar

³⁰⁹ The wording in the French version also differs between the two definitions, but does not provide the same confirmation of the link to characterisdcs. In French, the definition of “règlement technique” refers to “les caractéristiques d’un produit ou les procédés et méthodes de production s’y rapportant” while the definition of “norme” refers to “des produits ou des procédés et des méthodes de production connexes” [emphasis added].

³¹⁰ See the definition of “sanitary or phytosanitary measure” in SPS Agreement Annex A. But note that the definition includes “processes and production methods; testing, inspection, certification and approval procedures; quarantine treatments including relevant requirements associated with the transport of animals or plants, or with the materials necessary for their survival during transport; provisions on relevant statistical methods, sampling procedures and methods of risk assessment.” Some of these measures might apply extraterritorially and might not relate to product characteristics: see Marceau and Trachtman, supra note 252 at 862.

³¹¹ Asbestos, Panel Report, supra note 4 at paras. 3.358–3.361, 3.369–3.372, and 3.377-3.386; Asbestos, Appellate Body Report, supra note 4 at para. 17.

³¹² ILO, Convention Concerning Safety in the Use of Asbestos (Convention 162) and ILO, Recommendation Concerning Safety in the Use of Asbestos (Recommendation 172), both adopted at the International Labour Conference on 24 June 1986; see further ILO, Code of Practice on Safety in the Use of Asbestos, Geneva, 1984 (Asbestos, Panel Report, supra note 4 at para. 3.359, footnotes 475, 476). Canada also referred to Guidelines for On-Site Work from the International Organization for Standardization (International Standard ISO-7337), which covered the use of asbestos cement materials (Asbestos, Panel Report, supra note 4 at para. 3.359, footnote 477).

³¹³ Pauwelyn, Joost, “WTO Compassion or Superiority Complex?: What to Make of the WTO Waiver for ’Conflict Diamonds’” (2003) 24 Mich. J. Int’l L. 1177 at 1188–189.Google Scholar

³¹⁴ Tuna/Dolphin I, supra note 120 at para. 4.26; Tuna/Dolphin II, supra note 120 at paras. 4.36–4.39. See Tuna/Dolphin II, supra note 120 at paras. 2.3–2.4.

³¹⁵ Most were also listed as endangered or vulnerable in Appendices I and II of the 1979 Convention on Migratory Species of Wild Animals (available at <http://www.cms.int>) and the IUCN Red List (Shrimp/Turtle 1998, Panel Report, supra note 5 at para. 2.3).

³¹⁶ Shrimp/Turtk 1998, Panel Report, supra note 5 at para. 3.5.

³¹⁷ Marceau, Gabrielle, “Conflicts of Norms and Conflicts of Jurisdictions: The Relationship between the WTO Agreement and MEAs and other Treaties” (2001) 35(6) J. World Trade 1081 CrossRefGoogle Scholar; Pauwelyn, Joost, Conflict of Norms in Public International Law. How WTO Law Relates to Other Rules of International Law (Cambridge, UK: Cambridge University Press, 2003)CrossRefGoogle Scholar. In its 1998 decision in Shrimp/ Turtle, the Appellate Body specifically noted the reference to the TBT Agreement in the Inter-American Convention for the Protection and Conservation of Sea Turtles, the convention that the Appellate Body considered to mark out the “equilibrium line” between GATT exceptions and other GATT obligations: Shrimp/Turtle 1998, Appellate Body Report, supra note 5 at paras. 169–170 (compare with para. 159). See further the submissions of Australia and reply of the United States in Shrimp/Turtle 2001, Panel Report, supra note 5 at paras. 4.124.26, paras. 3.110–3.114; Shrimp/Turtle 2001, Appellate Body Report, supranote 5 at paras. 125–30.

³¹⁸ The Codex Alimentarius Commission was established in 1963 as a joint project of the World Health Organization and the Food and Agriculture Organization of the United Nations (available at <http://www.codexalimentarius.net/web/ index_en.jsp>).

³¹⁹ Beef Hormones, Appellate Body Report, supra note 176 at para. 163–68. But note that SPS Article 3.1 requires members to base their SPS measures on international guidelines and recommendations, as well as international standards.

³²⁰ Sardines, Appellate Body Report, supra note 286 at para. 245. As in the SPS Agreement, there are other provisions of the TBT Agreement indicating that the drafters did not expect instant harmonization of standards among all WTO members. Article 2.6 speaks only of harmonizing technical regulations “on as wide a basis as possible,” and Article 2.9 accepts the possibility of technical regulations that are not in accordance with the relevant international standards.

³²¹ Sardines, Appellate Body Report, supra note 286 at para. 205. Both the EC regulation and the Codex standard were adopted prior to the entry into force of the TBT Agreement at the beginning of 1995 (Ibid, at para. 196).

³²² The International Organization for Standardization (ISO) was founded in 1946 and the International Electrotechnical Commission (IEC) dates from 1906. For background, see Thompson, Lisa C. and Thompson, William J., “The ISO 9000 Quality Standards: Will They Constitute a Technical Barrier to Free Trade under the NAFTA and the WTO?” (1997) 14 Ariz. J. Int’l & Comp. L. 155 Google Scholar; Kloiber, Kristina, “Removing Technical Barriers to Trade: The Next Step toward FreerTrade” (2001) 9 Tul.J. Int’l & Comp. L. 511.Google Scholar

³²³ Sardines, Appellate Body Report, supra note 286 at para. 225.

³²⁴ Victor, David G., “The Sanitary and Phytosanitary Agreement of the World Trade Organization: An Assessment after Five Years” (2000) 32 N.Y.U. J. Int’l L. & Pol. 865 at 887–88.Google Scholar

³²⁵ Hudec, Robert E., “Introduction: Science and ’Post-Discriminatory’ WTO Law” (2003) 26 B.C. Int’l & Comp. L. Rev. 185.Google Scholar