1 WT/DS58/RW, 15 June 2001.

2 Panel Report, paras. 1.1-1.5 and 2.12-2.21.

3 Appellate Body Report, WT/DS58/AB/R, adopted 6 November 1998; original panel report, WT/DS58/R and Corr.l, as modified by the Appellate Body Report, WT/DS58/AB/R, adopted 6 November 1998.

4 WTVDS58/15, 15 July 1999. 5

5 Malaysia's recourse to a panel was also in accordance with a bilateral agreement it had concluded with the United States in respect of the procedures to be followed under Articles 21.5 and 22 of the DSU.See, WT/DS58/16, 12 January 2000.

6 Supra, footnote 3, paras. 3-6.

7 United States Department of State, Federal Register Vol. 64, No. 130, 8 July 1999, Public Notice 3086, pp. 36946-36952. The Revised Guidelines are attached to the Panel Report.

8 Panel Report, paras. 2.5-2.11 and 2.22-2.32.

9 Panel Report, para. 2.25.

10 Ibid., para. 2.28.

11 Ibid., para. 2.29.

12 Panel Report, para. 6.1.

13 Ibid., para. 7.2.

14 Pursuant to Rule 21 of theWorking Procedures.

15 Pursuant to Rule 22 of theWorking Procedures.

16 Pursuant to Rule 24 of theWorking Procedures. Ecuador, a third party in the proceedings before the Panel, did not file a third participant's submission, but requested permission to attend the oral hearing as a “passive observer.” After consulting the participants and third participants, the Division hearing this appeal granted Ecuador permission to attend the oral hearing in this capacity.

17 Appellate Body Report, WT/DS70/AB/RW, adopted 4 August 2000.

18 Appellate Body Report,United States —Shrimp, supra, footnote 3, para. 166.

19 Appellate Body Report,United States —Shrimp, supra, footnote 3, para. 163.

20 110 Fed. Supp. 2d 1005 (CIT, 2000).

21 Malaysia's appellant's submission, para. 3.11.

22 Malaysia's appellant's submission, para. 3.13.

23 Malaysia's appellant's submission, para. 3.21.

24 Appellate Body Report, WT/DS58/AB/R, adopted 6 November 1998, para. 89.

25 Ibid.

26 United States Department of State, Federal Register Vol. 64, No. 130, 8 July 1999, Public Notice 3086, pp. 36946-36952. The Revised Guidelines are attached to the Panel Report, United States — Import Prohibition of Certain Shrimp and Shrimp Products, Recourse to Article 21.5 of the DSU by Malaysia (the “Panel Report“), WT/DS58/RW, 15 June 2001.

27 In response to our questions at the oral hearing, the United States submitted that:The measure at issue in this appeal would be Section 609 as currently applied through the [United States] guidelines currently in effect. In response to the same question, Malaysia stated that: Malaysia's contention is that the measure at issue is the 1999 revised guidelines which are the guidelines to implement Section 609 and their application.

28 The Panel stated:The “implementing measure” is composed of Section 609 of Public Law 101-162, of the revised guidelines pursuant to Section 609, dated 8 July 1999, Federal Register, Vol. 64, No. 130, Public Notice 3086, p. 36946 (hereafter the “Revised Guidelines“), as well as of any practice under those Revised Guidelines. (Panel Report, footnote 154 to para. 5.1)

29 Panel Report,para. 5.137.

30 Ibid., para. 5.23.

31 Ibid., para. 5.42.

32 The Panel's findings on this issue are set out in paragraph 5.144 of the Panel Report. At the oral hearing, we noted that Malaysia had made no reference in its appellant's submission to the findings of the Panel with respect to whether the United States measure was applied in a manner that constitutes “a disguised restriction on international trade.” We asked Malaysia to confirm that it was not appealing those findings. Malaysia did so.

33 Appellate Body Report, WT/DS70/AB/RW, adopted 4 August 2000, para. 39.

34 Ibid., paras. 40-41.

35 Appellate Body Report, WT/DS70/AB/RW, adopted 4 August 2000, para. 41.

36 Ibid., para. 41.

37 As opposed to a debate on the “existence … of measures taken to comply,” which is not at issue here.

38 Panel Report, para. 5.39.

39 Panel Report., para. 5.41.

40 110 Fed. Supp. 2d 1005 (CIT, 2000).See, Panel Report, para. 5.109.

41 Panel Report, para. 5.109.

42 The United States submitted that: We do not believe that the court decision in the litigation changes the measure. The measure is the statute and the guidelines. There is litigation and controversy in the United States about what those guidelines might look like. However, for today and the foreseeable future, the guidelines stand. They are what governs. That is what happens at the ports. (United States response to questioning at the oral hearing).

43 Panel Report, para. 5.109.

44 Malaysia's appellant's submission, para. 3.2. Malaysia refers to footnote 211 of paragraph 5.66 and paragraphs 5.116, 5.120, 5.125 and 5.134 of the Panel Report.

45 Panel Report, para. 5.7.

46 Ibid., para. 5.8. After quoting our Report inCanada —Aircraft (21.5), the Panel concluded that:In light of the reasoning of the Appellate Body [inCanada —Aircraft (21.5)], the Panel considers that it is fully entitled to address all the claims of Malaysia under Article XI and Article XX of the GATT 1994, whether or not these claims, the arguments and the facts supporting them were made before the Original Panel and in the Appellate Body proceedings ….(Ibid., para. 5.9)We agree with the Panel. However, we do not agree with Malaysia's reading of our Report inCanada —Aircraft (21.5). As the United States submits:” [t]he issue inCanada Aircraft was whether the Article 21.5 Panel's review was limited to issues considered in the original panel and Appellate Body proceedings, and the Appellate Body found that the DSU provides no such limitation.” (footnote omitted) (United States appellee's submission, para. 11) With respect to this case, the United States notes: “[t]he Panel's report makes no limitations on its consideration of Malaysia's arguments.” (United States appellee's submission, para.13) On this, we agree with the United States. The Panel in this case examined all of Malaysia's arguments, and did not decline to consider an argument on its merits on the ground that such argument had not been raised before the original panel or the Appellate Body.

47 Panel Report, para. 5.9.

48 Panel Report, paras. 5.22-5.23.

49 Ibid., para. 5.28.

50 Ibid., para. 5.42.

51 Panel Report, para.5.138.

52 Appellate Body Report,(“Japan —AlcoholicBeverages“),WT/DS8/AB/R, WT/DSIO/AB/R, WT/DSl 1/AB/R, adopted 1 November 1996, DSR 1996:1, 97, at 108.

53 Panel Report, para. 5.137.

54 Ibid., para. 6.1.

55 Malaysia's appellant's submission, para 3.10(b)(i).

56 Executive summary of Malaysia's appellant's submission, para. 2(b)(ii).

57 Malaysia's appellant's submission, para 3.13.

58 Ibid., paras. 3.17-3.18.See also, Executive summary of Malaysia's appellant's submission, para. 2(iv).

59 Malaysia's appellant's submission, paras. 3.20-3.21.

60 Ibid., paras. 3.22-3.25.

61 Panel Report, para. 5.1.

62 Panel Report, paras. 5.63, 5.67 and 5.76.

63 Malaysia's appellant's submission, para. 3.11.

64 Ibid, paras. 3.10-3.11.

65 Ibid, para. 3.11.

66 Ibid., para. 3.13.

67 Appellate Body Report,United States —Shrimp, supra, footnote 24, para. 150; Appellate Body Report,United States —Standards fo Reformulated and Conventional Gasoline (“United States — Gasoline“),WT/DS2/AB/R, adopted 20 May 1996, DSR 1996:1. 3, at 21-22.

68 The Panel also made findings regarding disguised restriction on trade but these are not appealed. Panel Report, paras. 5.138-5.144.

69 Appellate Body Report,United States —Shrimp, supra, footnote 24, paras. 156 and 160; Appellate Body Report,United States —Gasoline, supra, footnote 67 at 21-22.

70 Section 609(a).See also, Appellate Body Report,United States —Shrimp, supra, footnote 24, para. 167.

71 Appellate Body Report,supra, footnote 24, para. 167.

72 Ibid, para. 172.

73 Appellate Body Report,supra, footnote 24, para. 168.

74 Ibid.

75 Ibid.

76 Panel Report, para. 5.71. Malaysia's appellant's submission, para. 3.13.

77 Ibid.

79 Appellate Body Report,supra, footnote 24, para. 171.

80 Ibid., para. 170.

81 Ibid., para. 172.

82 Panel Report, para. 5.71.

83 Panel Report, para. 5.71.

84 Malaysia's appellant's submission, para. 3.13.

85 Panel Report, para. 5.71.

86 Panel Report, para. 5.79.

87 Ibid.

88 Ibid.

89 Ibid., para. 5.81.

90 Ibid., para. 5.84.

91 Ibid, para. 5.82.

92 Ibid.

93 Panel Report. It appears that the United States was in favour of a legally binding agreement for the Indian Ocean and South-East Asia region, but a number of other parties were not, and the latter view prevailed.See, Panel Report, para. 5.83.

94 Panel Report, para. 5.84.

95 Ibid., para. 5.71.

96 We note that a multilateral conference on sea turtles was held in Manila and resulted in the adoption of the Conservation and Management Plan to be annexed to the South-East Asian MOU. We also note that the South-East Asian MOU came into effect on 1 September 2001. To our mind, these events only reinforce the finding of the Panel that the efforts made by the United States to negotiate an international agreement in the Indian Ocean and South-East Asia region constitute serious, good faith efforts comparable to those made in relation to the Inter-American Convention. The Inter-American Convention, in Article IV.2(h), provides for the use of TEDs to reduce the incidental capture and mortality of sea turtles in the course of fishing activities. Objective 1.4 of the Conservation and Management Plan attached to the South-East Asian MOU requires signatory states to “[r]educe to the greatest extent practicable the incidental capture and mortality of marine turtles in the course of fishing activities.” In this respect, signatory states are directed to “ [d]evelop and use gear, devices and techniques to minimise incidental capture of marine turtles in fisheries, such as devices that effectively allow the escape of marine turtles, and spatial and seasonal closures.

97 Panel Report, para. 5.137. We do wish to note, though, that there is one observation by the Panel with which we do not agree. In assessing the good faith efforts made by the United States, the Panel stated that:The United States is ademandeur in this field and given its scientific, diplomatic and financial means, it is reasonable to expect rather more than less from that Member in terms of serious good faith efforts. Indeed, the capacity of persuasion of the United States is illustrated by the successful negotiation of the Inter-American Convention.(Panel Report, para. 5.76) We are not persuaded by this line of reasoning. As we stated in our previous Report, the chapeau of Article XX is “but one expression of the principle of good faith.” (Appellate Body Report,United States —Shrimp, supra, footnote 24, para. 158) This good faith notion applies to all WTO Members equally.

98 Panel Report, para. 3.131.

99 Ibid., paras. 3.125 and 3.127.

100 Ibid, para. 5.93.

101 Malaysia's appellant's submission, paras. 3.17-3.19.

102 Appellate Body Report,supra, footnote 24, para. 121.

103 Appellate Body Report,supra, footnote 24, para. 177.

104 Panel Report, para. 5.93.

105 Panel Report, para. 5.92.

106 According to Malaysia, the specificity of its case rests on the fact that shrimp trawling is not practised in Malaysia; shrimp is a by catch from fish trawling and therefore, the incidental catch of sea turtles is due to fish trawling, not shrimp trawling.See, Malaysia's appellant's submission, para. 3.21 and Panel Report, para. 3.128. In addition, Malaysia stated: Malaysia is a nesting ground but it is not known to be a feeding ground for sea turtles and the nesting season in Malaysia does not overlap with the shrimp season. The Loggerheads and the Kemps released rarely nested on Malaysian beaches and did not occur in Malaysian waters respectively and the high mortality of sea turtles that is reported in the shrimp trawls in the United States relate to both these sea turtles. The Green Turtle, the Hawksbill, Leatherback and Olive Ridley are the major sea turtle species in Malaysia. Green turtles were resident in sea grass beds which were found in shallow coastal waters, whilst the Hawksbills were found in coral reef. Trawling was prohibited in these areas. During the nesting season, the Green turtles remain close to the shore in areas where trawling was also prohibited. During long distance migrations between feeding and nesting grounds, turtles were actively swimming close to the surface of the water which made them more vulnerable to drift nets and long lines rather than trawl nets. In Malaysia, trawling targeted fish for the most part of the year and thus the incidental capture of sea turtles was due to fish trawls and not shrimp trawls.(Malaysia's response to questioning at the oral hearing)

107 Revised Guidelines, Section II.B;see, Panel Report, p. 105.

108 Ibid.

109 Revised Guidelines, Section I.B;see, Panel Report, p. 103.

110 Revised Guidelines, Section II.B(c)(iii);see, Panel Report, p. 106.

111 Ibid.

112 Revised Guidelines, Section II.C, Panel Report, p. 107.see also, Revised Guidelines, Section II.D, Panel Report, p. 108.

113 In this respect, we note that the European Communities stated that:… the complaint by Malaysia in this case is somewhat premature. As it appears Malaysia has not yet applied for certification and it is therefore not yet clear how the contested legislation would apply to imports of shrimp and shrimp products from Malaysia.(European Communities’ third participant's submission, para. 27)

114 Appellate Body Report,United States —Shrimp, supra, footnote 24, para. 164.

115 Malaysia's appellant's submission, para. 3.25.

116 See, supra, para. 95.

117 Panel Report, para. 6.1. The Panel stated that its findings of justification stand, “as long as” certain conditions it set out in its Report, in particular, the good faith efforts to reach a multilateral agreement, continue to be met. In this respect, we note that the United States negotiated and concluded a Memorandum of Understanding with certain countries in the Indian Ocean and South-East Asia region, the South-East Asian MOU.See, supra, footnote 96. This agreement took effect on 1 September 2001, almost two and a half months after the circulation of the Panel Report. The participants have not disputed the existence of this agreement. There was some dispute at the oral hearing as to the legally binding nature of this agreement. Basic Principle 4 of that agreement states:This Memorandum of Understanding, including the Conservation and Management Plan, may be amended by consensus of the signatory States. When appropriate, the signatory States will consider amending this Memorandum of Understanding to make it legally binding. At the oral hearing, the United States stated that “[The South-East Asian MOU] is considered a political undertaking that does not have binding consequences under international law.” Malaysia stated that “The [South-East Asian] MOU … would have the status of a treaty under the Vienna Convention of the law of treaties, because “treaty” has been defined as an international agreement that is concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments, whatever its particular designation.” We need not judge this issue, and we do not. Even so, we note that, whether legally binding or not, the Memorandum of Understanding reinforces the Panel's finding that the United States had indeed made serious good faith efforts to negotiate a multilateral agreement.