1 The introduction and findings of the report of the panel, issued on May 15, 1998, are published at 37 I.L.M. 832 (1998).

2 The PPM issue was highlighted in the two GATT cases challenging the U.S. ban on imports of tuna caught in nets set on dolphin (See Reports of the Panels in “United States - Restrictions on Imports of Tuna,” DS21/R (circulated Sept. 3, 1991 - not adopted) and DS29/R (circulated June 16, 1994 - not adopted)). The issue also is implicated by the regulation of the European Community restricting imports of furs produced from animals caught through allegedly “inhumane” trapping methods. See 37 I.L.M. 532 (1998).

3 Paragraph 133.

4 Id.

5 See Reports of the Panels in “United States-Restrictions on Imports of Tuna,” supra note 3.

6 Paragraph 163.

7 Paragraph 172.

8 Statement of Ambassador Rita Derrick Hayes, Permanent U.S. Trade Representative to the World Trade Organization to the WTO Dispute Settlement Body (Nov. 25, 1998).

9 “Environment: WTO Formally Adopts Shrimp-Turtle Ruling As Thailand Fears Victory May Be Pyrric,” 15 Int'l Trade Rep. 1884 (BNA) (Nov. 11, 1998).

10 Id.

11 World Wildlife Fund, Statement in Response to the WTO Shrimp-Turtle Ruling (press release, Oct. 12, 1998).

12 Id.

13 Para. 108.

1 WT/DS58/R, 15 May 1998.

2 WT/DS58/1, 14 October 1996.

3 WT/DS58/6, 10 January 1997.

4 WT/DS58/7,7 February 1997.

5 16 United States Code (U.S.C.) §1537.

6 WT/DSB/M/29, 26 March 1997.

7 WT/DS58/8, 4 March 1997.

8 WT/DSB/M/31,12 May 1997.

9 Public Law 93-205, 16 U.S.C. 1531 et. seq.

10 52 Fed. Reg. 24244, 29 June 1987 (the “1987 Regulations“). Five species of sea turtles fell under the regulations: loggerhead (Caretta caretta), Kemp's ridley (Lepidochelys kempi), green (Chelonia mydas), leatherback (Dermochelys coriaced) and hawksbill (Eretmochelys imbricata). “

11 Hereinafter referred to as the “1991 Guidelines” (56 Federal Register 1051, 10 January 1991), the “1993 Guidelines” (58 Federal Register 9015, 18 February 1993) and the “1996 Guidelines” (61 Federal Register 17342, 19 April 1996), respectively.

12 Section 609(b)(2)(C).

13 1996 Guidelines, p. 17343.

14 Section 609(b)(2)(A) and (B).

15 1996 Guidelines, p. 17344.

16 Ibid.

17 Ibid.

18 Ibid.

19 1996 Guidelines, p. 17343.

20 Earth Island Institute v. Warren Christopher, 942 Fed. Supp. 597 (CIT 1996).

21 [Earth Island Institute v. Warren Christopher, 948 Fed. Supp. 1062 (CIT 1996).

22 1998 U.S. App. Lexis 11789.

23 Response by the United States to questioning at the oral hearing.

24 Specifically, Mexico, Belize, Guatemala, Honduras, Nicaragua, Costa Rica, Panama, Colombia, Venezuela, Trinidad and Tobago, Guyana, Suriname, French Guyana and Brazil.

25 Earth Island Institute v. Warren Christopher, 913 Fed. Supp. 559 (CIT 1995).

26 Earlh Island Institute v. Warren Christopher, 922 Fed. Supp. 616 (CIT 1996).

27 Panel Report, para. 8.1.

28 Panel Report, para. 8.2.

29 WT/DS58/11, 13 July 1998.

30 Pursuant to Rule 21(1) of the Working Procedures for Appellate Review.

31 Pursuant to Rule 22(1) of the Working Procedures for Appellate Review.

32 Pursuant to Rule 24 of the Working Procedures for Appellate Review.

33 Done at Marrakesh, 15 April 1994. 34Adopted 20 May 1996, WT/DS2/AB/R.

35 Adopted 7 November 1952, BISD IS/59.

36 Adopted 20 May 1996, WT/DS2/AB/R.

37 Adopted 20 May 1996, WT/DS2/AB/R.

38 Done at Washington, 3 March 1973, 993 U.N.T.S. 243, 12 International Legal Materials 1085.

39 The United States states that all species of sea turtle except the flatback are listed in Appendices I and II of the Convention on the Conservation of Migratory Species of Wild Animals, done at Bonn, 23 June 1979, 19 International Legal Materials 15; and in Appendix II of the Protocol concerning Specially Protected Areas and Wildlife to the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region, 29 March 1983, T.I.A.S. No. 11085.

40 The United States refers to Panel Report, para. 7.60, footnote 674.

41 Joint Appellees refer to Panel Report, para. 7.8.

42 Done at Vienna, 23 May 1969, 1155 U.N.T.S. 33; 8 International Legal Materials 679.

43 Unadopted, DS29/R, 16 June 1994, para 5.26.

44 Adopted 20 May 1996, WT/DS2/AB/R.

45 United States-Gasoline, adopted 20 May 1996, WT7DS2/AB/R, page 22.

46 Ibid.

47 Ibid.

48 Joint Appellees refer to Panel Report, para 7.40.

49 Adopted 7 November 1952, BISD IS/59.

50 Adopted 20 May 1996, WT/DS2/AB/R.

51 UN Doc. A/CONF. 151/5/Rev.1, 13 June 1992, 31 International Legal Materials 874.

52 Adopted 20 May 1996, WT/DS2/AB/R, pp. 27-28.

53 Adopted 20 May 1996, WT/DS2/AB/R.

54 Ibid.

55 Adopted 16 January 1998, WT/DS50/AB/R.

56 Adopted 7 November 1952, BISD IS/59.

57 Adopted 20 May 1996, WT/DS2/AB/R.

58 Adopted by Ministers at the Meeting of the Trade Negotiations Committee at Marrakesh, 14 April 1994.

59 Done at Rome, 25 March 1957, as amended.

60 The European Communities refers to: Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, (1996), I.C.J Ret pp. 241-242, para. 29; Case Concerning the Gabcikovo-Nagymoros Project, (1998) 37 International Legal Materials 162, para. 140.

61 Adopted 20 May 1996, WT/DS2/AB/R.

62 Done at Bonn, 23 June 1979, 19 International Legal Materials 15.

63 Adopted 20 May 1996, WT/DS2/AB/R, page 22.

64 Ibid.

65 Nigeria refers to WT/CTE/1, 12 November 1996. Paragraph 169 of the Report states: “WTO Member governments are committed not to introduce WTO-inconsistent or protectionist trade restrictions or countervailing measures in an attempt to offset any real or perceived adverse domestic economic or competitiveness effects of applying environmental policies; not only would this undermine the open, equitable and non-discriminatory nature of the multilateral trading system, it would also prove counterproductive to meeting environmental objectives and promoting sustainable development. Equally, and bearing in mind the fact that governments have the right to establish their national environmental standards in accordance with their respective environmental and developmental conditions, needs and priorities, WTO Members note that it would be inappropriate for them to relax their existing national environmental standards or their enforcement in order to promote their trade. The CTE notes the statement in the 1995 Report on Trade and Environment to the OECD Council at Ministerial Level that there has been no evidence of a systematic relationship between existing environmental policies and competitiveness impacts, nor of countries deliberately resorting to low environmental standards to gain competitive advantages. The CTE welcomes similar policy statements made in other inter-governmental fora.“ Paragraph 171 of the Report states: “The CTE notes that governments have endorsed in the results of the 1992 U.N. Conference on Environment and Development their commitment to Principle 12 of the Rio Declaration that “Unilateral actions to deal with environmental challenges outside the jurisdiction of the importing country should be avoided. Environmental measures addressing transboundary or global problems should, as far as possible, be based on an international consensus.” There is a clear complementarity between this approach and the work of the WTO in seeking cooperative multilateral solutions to trade concerns. The CTE endorses and supports multilateral solutions based on international cooperation and consensus as the best and most effective way for governments to tackle environmental problems of a transboundary or global nature. WTO Agreements and multilateral environmental agreements (MEAs) are representative of efforts of the international community to pursue shared goals, and in the development of a mutually supportive relationship between them due respect must be afforded to both.“

66 In respect of these Exhibits, the United States stated the following: “Encouraging the use of TEDs in order to promote sea turtle conservation is a matter of great importance to a number of nongovernmental environmental organizations. Three groups of these organizations - each with specialized expertise in conservation of sea turtles and other endangered species - have prepared submissions reflecting their respective independent views with respect to the use of TEDs and other issues. The United States is submitting these materials to the Appellate Body for its information attached hereto as U.S. Appellant Exhibits 1-3.” United States appellant's submission, para. 2, footnote 1.

67 The interpretation of the Panel concerning non-requested information, and its finding on the inconsistency of Section 609 with Article XX of the GATT 1994, are themselves cast in fairly terse language; Panel Report, paras. 7.8, fourth sentence, 7.49 and 7.62.

68 Panel Report, para. 3.129

69 Panel Report, para. 7.8.

70 See Articles 4, 6, 9 and 10 of the DSU.

71 Articles 10 and 12, and Appendix 3 of the DSU. We note that Article 17.4 of the DSU limits the right to appeal a panel report to parties to a dispute, and permits third parties which have notified the DSB of their substantial interest in the matter to make written submissions to, and be given an opportunity to be heard by, the Appellate Body.

72 As well as Article 11.2 of the Agreement on the Application of Sanitary and Phytosanitary Measures.

73 Adopted 13 February 1998, WT/DS26/AB/R, WT/DS48/AB/R, para. 147.

74 Adopted 22 April 1998, WT/DS56/AB/R, paras. 84-86.

75 Panel Report, para. 7.8.

76 The United States measure at issue is referred to in this Report as “Section 609” or “the measure”. By these terms, we mean Section 609 and the 1996 Guidelines.

77 Panel Report, para. 7.44.

78 Panel Report, para. 7.45.

79 Panel Report, para. 7.48.

80 Panel Report, para. 7.49.

81 Panel Report, para. 7.62.

82 See, for example, the Appellate Body Reports in: United States - Gasoline, adopted 20 May 1996, WT/DS2/AB/R, p. 17; Japan - Taxes on Alcoholic Beverages, adopted 1 November 1996, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, pp. 10-12; India -Patent Protection for Pharmaceutical and Agricultural Chemical Products, adopted 16 January 1998, WT/DS50/AB/R, paras. 45-46; Argentina - Measures Affecting Imports of Footwear, Textiles, Apparel and Other Items, adopted 13 February 1998, WT/DS56/AB/R, para. 47; and European Communities - Customs Classification of Certain Computer Equipment, adopted 22 June 1998, WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R, para. 85.

83 I. Sinclair, The Vienna Convention on the Law of Treaties, 2nd ed. (Manchester University Press, 1984), pp. 130-131.

84 Adopted 20 May 1996, WT/DS2/AB/R, p. 22.

85 Panel Report, para. 7.60. The Panel also stated, in paras. 7.33-7.34 of the Panel Report: … Pursuant to the chapeau of Article XX, a measure may discriminate, but not in an ‘arbitrary’ or ‘unjustifiable’ manner. We therefore move to consider whether the US measure conditioning market access on the adoption of certain conservation policies by the exporting Member could be considered as ‘unjustifiable’ discrimination … .(emphasis added)

86 See, for example, Panel Report, para. 7.44.

87 Panel Report, para. 7.62.

88 Adopted 20 May 1996, WT/DS2/AB/R, p. 22.

89 Panel Report, para. 7.29.

90 Ibid.

91 Panel Report, para. 7.28.

92 Adopted 20 May 1996, WT/DS2/AB/R, p. 22.

93 Panel Report, para 7.28.

94 See, for example, Panel Report, para. 7.50.

95 Panel Report, para. 7.62.

96 Adopted 23 July 1998, WT/DS69/AB/R, para. 156.

97 Adopted 30 July 1997, WT7DS31/AB/R, pp. 23 and 24.

98 Adopted 20 May 1996, WT/DS2/AB/R, pp. 19 ff.

99 Additional submission of the United States, dated 17 August, 1998, para. 5.

100 Panel Report, para. 3.237.

101 Ibid.

102 Ibid.

103 Panel Report, para 3.238. India, Pakistan and Thailand referred, inter alia, to E/PC/T/C.II/QR/PV/5, 18 November 1946, p. 79.

104 Panel Report, para. 3.240.

105 Ibid.

106 We note, for example, that the World Commission on Environment and Development stated: “The planet's species are under stress. There is growing scientific consensus that species are disappearing at rates never before witnessed on the planet… .” World Commission on Environment and Development, Our Common Future (Oxford University Press, 1987), p. 13.

107 This concept has been generally accepted as integrating economic and social development and environmental protection See e.g., G. Handl, “Sustainable Development: General Rules versus Specific Obligations”, in Sustainable Development and International Law (ed. W. Lang, 1995), p. 35; World Commission on Environment and Development, Our Common Future (Oxford University Press, 1987), p. 43.

108 Preamble of the WTO Agreement.

109 See Namibia (Legal Consequences) Advisory Opinion (1971) I.C.J. Rep., p. 31. The International Court of Justice stated that where concepts embodied in a treaty are “by definition, evolutionary”, their “interpretation cannot remain unaffected by the subsequent development of law …. Moreover, an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation.” See also Aegean Sea Continental Shelf Case, (1978) I.C.J. Rep., p. 3; Jennings and Watts (eds.), Oppenheim's International Law, 9th ed., Vol. I (Longman's, 1992), p. 1282 and E. Jimenez de Arechaga, “International Law in the Past Third of a Century”, (1978-1) 159 Recueil des Cours 1, p. 49.

110 Done at Montego Bay, 10 December 1982, UN Doc. A/CONF.62/122; 21 International Legal Materials 1261. We note that India, Malaysia and Pakistan have ratified the UNCLOS. Thailand has signed, but not ratified the Convention, and the United States has not signed the Convention. In the oral hearing, the United States stated: ”… we have not ratified this Convention although, with respect to fisheries law, for the most part we do believe that UNCLOS reflects international customary law.” Also see, for example, Burke, W., The New International Law of Fisheries (Clarendon Press, 1994), p. 40 Google Scholar: [the] coastal state sovereign rights over fisheries in a 200-mile zone are now considered part of customary international law. The evidence of state practice supporting this derives not only from the large number of coastal states claiming an EEZ [exclusive economic zone] in which such rights are advanced, but also from the fact that many of those states not claiming an EEZ assert rights not appreciably different than those in an EEZ. The provision for sovereign rights of the coastal state in [Article 56.1 (a) of] the 1982 Convention is also a part of this evidence, but has particular weight because of the uniformity of state practice outside the Convention.

111 Done at Rio de Janeiro, 5 June 1992, UNEP/Bio.Div./N7-INC5/4; 31 International Legal Materials 818. We note that India, Malaysia and Pakistan have ratified the Convention on Biological Diversity, and that Thailand and the United States have signed but not ratified the Convention.

112 Adopted by the United Nations Conference on Environment and Development, 14 June 1992, UN Doc. A/CONF. 151/26/Rev.1. See, for example, para. 17.70, ff.

113 Final Act of the Conference to Conclude a Convention on the Conservation of Migratory Species of Wild Animals, done at Bonn, 23 June 1979, 19 International Legal Materials 11, p. 15. We note that India and Pakistan have ratified the Convention on the Conservation of Migratory Species of Wild Animals, but that Malaysia, Thailand and the United States are not parties to the Convention.

114 Furthermore, the drafting history does not demonstrate an intent on the part of the framers of the GATT 1947 to exclude “living” natural resources from the scope of application of Article XX(g).

115 United States Prohibition of Imports of Tuna and Tuna Products from Canada, adopted 22 February 1982, BISD 29S/91, para. 4.9; Canada - Measures Affecting Exports of Unprocessed Herring and Salmon, adopted 22 March 1988, BISD 35S/98, para. 4.4.

116 See the following Appellate Body Reports: United States - Gasoline, adopted 20 May 1996, WT/DS52/AB/R, p. 23; Japan-Taxes on Alcoholic Beverages, adopted 1 November 1996, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, p. 12; and United States -Restrictions on Imports of Cotton and Man-made Fibre Underwear, adopted 25 February 1997, WT/DS24/AB/R, p. 16. See also Jennings, and Watts, (eds.), Oppenheim's International Law, 9th ed., Vol. I (Longman's, 1992), pp. 1280–1281 Google Scholar; McDougal, M.S., Lasswell, H.D. and Miller, J., The Interpretation of International Agreements and World Public Order: Principles of Content and Procedure (New Haven/Martinus Nijhoff, 1994), p. 184 Google Scholar; Sinclair, I., The Vienna Convention on the Law of Treaties, 2nd ed. (Manchester University Press, 1984), p. 118 Google Scholar; Carreau, D., Droit International (Editions A. Pedone, 1994)Google Scholar, para. 369; Daillier, P. and Pellet, A., Droit International Public, 5th ed. (L.G.D.J., 1994)Google Scholar, para. 172; Podesta Costa, L.A. and Ruda, J.M., Derecho International Publico (Tipografica Editora Argentina, 1985), pp. 109–110 Google Scholar and Diez de Velasco, M., Instituciones de Derecho International Publico, 11th ed. (Tecnos, 1997), p. 169 Google Scholar.

117 CITES, Article n.l.

118 Panel Report, para. 7.53.

119 See Panel Report, para. 2.6. The 1987 Regulations, 52 Fed. Reg. 24244, 29 June 1987, identified five species of sea turtles as occurring within the areas concerned and thus falling under the regulations: loggerhead (Caretta caretta), Kemp's ridley (Lepidochelys kempi), green (Chelonia mydas), leatherback (Dermochelys coriacea) and hawksbill (Eretmochelys imbricata). Section 609 refers to “those species of sea turtles the conservation of which is the subject of regulations promulgated by the Secretary of Commerce on 29 June, 1987.“

120 There are currently 144 states parties to CITES.

121 We note that all of the participants in this appeal are parties to CITES.

122 Adopted 20 May 1996, WT/DS2/AB/R, p. 19.

123 Ibid.

124 See the 1996 Guidelines, p. 17343.

125 See the 1996 Guidelines, p. 17343.

126 For example, Panel Report, paras. 5.91-5.118.

127 Panel Report, para. 7.60, footnote 674.

128 We focus on the application of the measure below, in Section VI.C of this Report.

129 Adopted 20 May 1996, WT/DS2/AB/R, pp. 20-21.

130 52 Fed. Reg. 24244, 29 June 1987.

131 See the 1996 Guidelines, p. 17343.

132 According to the 1996 Guidelines, p. 17343, the exceptions are: vessels equipped exclusively with certain special types of gear; vessels whose nets are retrieved exclusively by manual rather than mechanical means; and, in exceptional circumstances, where the National Marine Fisheries Service determines that the use of TEDs would be impracticable because of special environmental conditions, vessels are permitted to restrict tow-times instead of using TEDs.

133 Endangered Species Act, Section 11.

134 Statement by the United States at the oral hearing.

135 Statement by the United States at the oral hearing.

136 United States appellant's submission, para. 28.

137 United States appellant's submission, para. 53.

138 In United States - Gasoline, adopted 20 May 1996, WT/DS2/AB/R, p. 23, we stated: “The provisions of the chapeau cannot logically refer to the same standard(s) by which a violation of a substantive rule has been determined to have occurred.“

139 Ibid., pp. 23-24.

140 Ibid., p. 22.

141 Ibid.

142 WTO Agreement, Article III: 1.

143 Preamble of the WTO Agreement, first paragraph.

144 Supra, para. 129.

145 Supra, paia. 131.

146 Preamble of the Decision on Trade and Environment.

147 We note that Principle 3 of the Rio Declaration on Environment and Development states: “The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.” Principle 4 of the Rio Declaration on Environment and Development states that: “In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.“

148 Agenda 21 is replete with references to the shared view that economic development and the preservation and protection should be mutually supportive. For example, paragraph 2.3(b) of Agenda 21 states: “The international economy should provide a supportive international climate for achieving environment and development goals by … [m]aking trade and environment mutually supportive … .” Similarly, paragraph 2.9(d) states that an “objective” of governments should be: “To promote and support policies, domestic and international, that make economic growth and environmental protection mutually supportive.“

149 Preamble of the Decision on Trade and Environment.

150 Decision on Trade and Environment.

151 This view is consistent with the approach taken by the panel in United States - Section 337 of the United States Tariff Act of 1930, which stated: Article XX is entitled “General Exceptions” and …the central phrase in the introductory clause reads: “nothing in this Agreement shall be construed to prevent the adoption or enforcement… of measures…”. Article XX(d) thus provides a limited and conditional exception from obligations under other provisions, (emphasis added) Adopted 7 November 1989, BISD 365/345, para. 5.9.

152 Article 32 of the Vienna Convention permits recourse to “supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.” Here, we refer to the negotiating history of Article XX to confirm the interpretation of the chapeau we have reached from applying Article 31 of the Vienna Convention.

153 The chapeau of Article 32 of the United States Draft Charter for an International Trade Organization, which formed the basis for discussions at the First Session of the Preparatory Committee of the United Nations Conference on Trade and Employment in late 1946, read, in relevant part: Nothing in Chapter IV of this Charter shall be construed to prevent the adoption or enforcement by any member of measures: …

154 For example, the Netherlands, Belgium and Luxembourg stated that the exceptions should be qualified in some way: Indirect protection is an undesirable and dangerous phenomenon. … Many times, the stipulations to ‘protect animal or plant life or health’ are misused for indirect protection. It is recommended to insert a clause which prohibits expressly to direct such measures that they constitute an indirect protection or, in general, to use these measures to attain results, which are irreconsiliable [sic] with the aim of chapters IV, V and VI. E/PC/T/CII/32, 30 October 1946

155 The United Kingdom's proposed text for the chapeau read: The undertaking in Chapter IV of this Charter relating to import and export restrictions shall not be construed to prevent the adoption or enforcement by any member of measures for the following purposes, provided that they are not applied in such a manner as to constitute a means of arbitrary discrimination between countries where the same conditions prevail, or a disguised restriction on international trade. E/PC/T/CII/50, pp. 7 and 9; E/PC/T/C.II/54/Rev.1, 28 November 1946, p. 36.

156 B. Cheng, General Principles of Law as applied by International Courts and Tribunals (Stevens and Sons, Ltd., 1953), Chapter 4, in particular, p. 125 elaborates: … A reasonable and bona fide exercise of a right in such a case is one which is appropriate and necessary for the purpose of the right (i.e., in furtherance of the interests which the right is intended to protect). It should at the same time be fair and equitable as between the parties and not one which is calculated to procure for one of them an unfair advantage in the light of the obligation assumed. A reasonable exercise of the right is regarded as compatible with the obligation. But the exercise of the right in such a manner as to prejudice the interests of the other contracting party arising out of the treaty is unreasonable and is considered as inconsistent with the bona fide execution of the treaty obligation, and a breach of the treaty…. (emphasis added) Also see, for example, Jennings and Watts (eds.), Oppenheim's International Law, 9th ed, Vol. I (Longman's, 1992), pp. 407-410, Border and Transborder Armed Actions Case, (1988) I.C.J. Rep. 105; Rights of Nationals of the United States in Morocco Case, (1952) I.C.J. Rep. 176; Anglo-Norwegian Fisheries Case, (1951) I.C.J. Rep. 142.

157 Vienna Convention, Article 31(3)(c).

158 Pursuant to Section 609(b)(2), a harvesting nation may be certified, and thus exempted from the import ban, if: the government of the harvesting nation has provided documentary evidence of the adoption of a program governing the incidental taking of such sea turtles in the course of such harvesting that is comparable to that of the United States; and the average rate of that incidental taking by vessels of the harvesting nation is comparable to the average rate of incidental taking of sea turtles by United States vessels in the course of such harvesting…

159 1996 Guidelines, p. 17344.

160 As already noted, these exceptions are extremely limited and currently include only: vessels equipped exclusively with certain special types of gear; vessels whose nets are retrieved exclusively by manual rather than mechanical means; and, in exceptional circumstances, where the National Marine Fisheries Services determines that the use of TEDs would be impracticable because of special environmental conditions, vessels are permitted to restrict tow-times instead of using TEDs. See the 1996 Guidelines, p. 17343. In the oral hearing, the United States informed us that the exception for restricted tow-times is no longer available.

161 996 Guidelines, p. 17344.

162 Ibid.

163 Statements by the United States at the oral hearing.

164 Statement by the United States at the oral hearing.

165 Panel Report, para. 7.56.

166 First written submission of the United States to the Panel, Exhibit AA.

167 Panel Report, para. 7.56.

168 See Decision on Trade and Environment, preamble and para. 2(b). See Supra, para. 154.

169 Report (1996) of the Committee on Trade and Environment, WT/CTE/1, 12 November 1996, para. 171, Section VII of the Report of the General Council to the 1996 Ministerial Conference, WT/MIN(96)/2, 26 November 1996.

170 Brazil, Costa Rica, Mexico, Nicaragua and Venezuela.

171 As of 1 January 1998, Brazil was among those countries certified as having adopted programs to reduce the incidental capture of sea turtles in shrimp fisheries comparable to the United States’ program. See Panel Report, para. 2.16. However, according to information provided by the United States at the oral hearing, Brazil is not currently certified under Section 609.

172 Inter-American Convention, Article IV. 1.

173 Inter-American Convention, Article IV.2(h).

174 While the United States is a party to CITES, it did not make any attempt to raise the issue of sea turtle mortality due to shrimp trawling in the CITES Standing Committee as a subject requiring concerted action by states. In this context, we note that the United States, for example, has not signed the Convention on the Conservation of Migratory Species of Wild Animals or UNCLOS, and has not ratified the Convention on Biological Diversity.

175 Section 609(a).

176 Earth Island Institute v. Warren Christopher, 913 F. Supp. 559 (CIT 1995).

177 See United States - Gasoline, adopted 20 May 1996, WT/DS2/AB/R, p. 28. Also see, for example, Jennings and Watts (eds.), Oppenheim's International Law, 9th ed., Vol. I (Longman's 1992), p. 545; and I. Brownlie, Principles of Public International Law, 4th ed. (Clarendon Press, 1990), p. 450.

178 For example, at the oral hearing, India stated that its “number of mechanized nets is estimated at about 47,000. Most of these are mechanized vessels … .“

179 Response by the United States to questioning by the Panel; statements by the United States at the oral hearing.

180 Supra, paras. 161-164.

181 In the oral hearing, the United States stated that “as a policy matter, the United States government believes that all governments should require the use of turtle excluder devices on all shrimp trawler boats that operate in areas where there is a likelihood of intercepting sea turtles” and that “when it comes to shrimp trawling, we know of only one way of effectively protecting sea turtles, and that is through TEDs.“

l82 Statement by the United States at the oral hearing.

l83 1996 Guidelines, p. 17343.

184 Statement by the United States at the oral hearing.

185 Statement by the United States at the oral hearing.

186 Statement by the United States at the oral hearing.

187 Statement by the United States at the oral hearing.

l88 We were advised at the oral hearing by the United States that these include: Australia, Pakistan and Tunisia.

l89 Statement by the United States at the oral hearing.

190 Statement by the United States at the oral hearing.

l91 Article X:3 states, in part: Each Member shall administer in a uniform, impartial and reasonable manner all its laws, regulations, decisions and rulings of the kind described in paragraph 1 of this Article. Each Member shall maintain, or institute as soon as practicable, judicial, arbitral or administrative tribunals or procedures for the purpose, inter alia, of the prompt review and correction of administrative action relating to customs matters ….

192 Adopted 20 May 1996, WT/DS2/AB/R, p. 30.