Case Study

UNITED STATES-IMPORT PROHIBITION OF CERTAIN

SHRIMP AND SHRIMP PRODUCTS

（WT/DS58/R 15 May 1998）

FACTS: In the United States, pursuant to the Endangered Species Act, all sea turtles that occur in U.S. waters are listed as endangered or threatened species. After several studies led to the conclusion that the incidental capture and drowning of turtles by shrimp trawlers was a significant source of mortality for turtles, regulations were issued requiring shrimp fisherman to use either turtle excluder devices （TEDs） or tow time restrictions. In 1989, two years after the issuance of these regulations, Section 609 of Public Law No. 101-162 was enacted. At the time this dispute arose, Section 609 prohibited the import of shrimp and shrimp products from all countries that had not been certified by the President as having adopted a regulatory program governing the incidental taking of sea turtles in the course of shrimp trawl harvesting comparable to that of the United States. For the purpose of certification, the regulatory program had to include a requirement that all commercial shrimp trawl vessels use TEDs that were comparable in effectiveness to TEDs used in the United

States.

India, Pakistan, Thailand, and Malaysia claimed that the Section 609 import ban from non-certified countries constituted a violation of Article Ⅺ:1. Article Ⅺ:1 reads as follows:

No prohibitions or restrictions other than duties, taxes or other charges, whether made effective through quotas, import or export licenses or other measures, shall be instituted or maintained by any contracting party on the importation of any product of the territory of any other contracting party or on the exportation or sale for export of any product destined for the territory of any other contracting party.

After concluding Section 609, which prohibited imports from countries not meeting certain policy conditions, constituted a violation of Article Ⅺ:1, the Panel considered the U.S. Article ⅩⅩ defense.

Ⅶ. FINDINGS

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E. ARTICLE XXGATT 1994

1. Preliminary remarks

7.24 The United States claims that the measures at issue adopted pursuant to Section 609, which were found to be inconsistent with Articles Ⅺ:1GATT 1994, are justified under Article ⅩⅩ（b） and （g） of GATT 1994. India, Pakistan and Thailand argue that Article ⅩⅩ（b） and （g） cannot be invoked to justify a measure which applies to animals not within the jurisdiction of the Member enacting the measure. Malaysia contends that, since Section 609 allows the United States to take actions unilaterally to conserve a shared natural resource, it is therefore in breach of the sovereignty principle under international law. The United States responds that Article ⅩⅩ（b） and （g） contain no jurisdictional limitations, nor limitations on the location of the animals or natural resources to be protected and conserved and that, under general principles of international law relating to sovereignty, States have the right to regulate imports within their jurisdiction.

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7.26 The arguments of the parties raise the general question of whether Article ⅩⅩ（b） and （g） apply at all when a Member has taken a measure conditioning access to its market for a given product on the adoption of certain conservation policies by the exporting Member（s）. We note that Article ⅩⅩ can accommodate a broad range of measures aiming at the conservation and preservation of the environment. At the same time, by accepting the WTO Agreement, Members commit themselves to certain obligations which limit their right to adopt certain measures. We therefore consider it important to determine first whether the scope of Article ⅩⅩ encompasses measures whereby a Member conditions access to its market for a given product on the adoption of certain conservation policies by the exporting Member（s）.

7.27 Pursuant to Article 3.2 of the DSU and in accordance with Appellate Body decisions , we should, when trying to clarify the scope of Article ⅩⅩ, have recourse to customary rules of interpretation of public international law. We note that Article 31（1） of the Vienna Convention on the Law of Treaties （1969） （hereafter the “Vienna Convention”） provides that:

“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”.

Therefore, in order to determine the scope of Article ⅩⅩ, it is necessary to consider not only the terms in their ordinary meaning, but also their context and the object and purpose of GATT 1994 and the WTO Agreement itself.

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2. Chapeau of Article ⅩⅩ

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7.33 In order to apply Article ⅩⅩ in this case, we must, as mentioned in paragraph 7.27 above, interpret it in line with Article 31（1） of the Vienna Convention. More particularly, the chapeau of Article ⅩⅩ must be interpreted on the basis of the ordinary meaning of its terms, in their context and in the light of the object and purpose of GATT 1994 and the WTO Agreement.

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7.35 … Article 31（2） of the Vienna Convention provides that the context for the purpose of treaty interpretation comprises the text of the agreement, including its preamble and annexes. By the same token, determining the object and purpose of an agreement implies an examination of the text of the agreement and of its preamble. Consequently, we consider that the context of the chapeau of Article ⅩⅩ cannot be distinguished from that of Article ⅩⅩ as a whole. Furthermore, as the WTO Agreement is an integrated system including GATT 1994 , we shall consider as the context of the chapeau and of Article ⅩⅩ as a whole not only the other relevant provisions of GATT 1994 together with its preamble and annexes, but also the WTO Agreement, including its preamble and its other annexes. For the same reasons, the object and purpose to be considered is not only that of GATT 1994, but that of the WTO Agreement as a whole.

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7.42 We consequently turn to the consideration of the object and purpose of the WTO Agreement, of which GATT 1994 and Article ⅩⅩ thereof are an integral part. We note that the preamble of an agreement may assist in determining its object and purpose. On the one hand, the first paragraph of the Preamble of the WTO Agreement acknowledges that the optimal use of the world's resources must be pursued “in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means of doing so in a manner consistent with \[Members’\] respective needs and concerns at different levels of economic development”. On the other hand, the second paragraph of the Preamble of GATT and the third paragraph of the WTO Preamble refer to “entering into reciprocal and mutually advantageous arrangements directed to the substantial reduction of tariffs and other barriers to trade and to the elimination of discriminatory treatment” in international trade relations. While the WTO Preamble confirms that environmental considerations are important for the interpretation of the WTO Agreement, the central focus of that agreement remains the promotion of economic development through trade; and the provisions of GATT are essentially turned toward liberalization of access to markets on a nondiscriminatory basis.

7.43 We also note that, by its very nature, the WTO Agreement favours a multilateral approach to trade issues. The Preamble to the WTO Agreement provides that Members are “resolved … to develop an integrated, more viable and durable multilateral trading system \[and\] … determined to preserve the basic principles and to further the objectives underlying this multilateral trading system” （emphasis added）. Article Ⅲ:2 of the WTO Agreement also mentions that:

“The WTO shall provide the forum for negotiations among its Members concerning their multilateral trade relations in matters dealt with under the agreements in the Annexes to this Agreement. The WTO may also provide for a forum for further negotiations among its Members concerning their multilateral trade relations …”

This approach is also expressed in Article 23.1 of the DSU which stresses the primacy of the multilateral system and rejects unilateralism as a substitute for the procedures foreseen in that agreement.

7.44 Therefore, we are of the opinion that the chapeau Article ⅩⅩ, interpreted within its context and in the light of the object and purpose of GATT and of the WTO Agreement, only allows Members to derogate from GATT provisions so long as, in doing so, they do not undermine the WTO multilateral trading system, thus also abusing the exceptions contained in Article ⅩⅩ. Such undermining and abuse would occur when a Member jeopardizes the operation of the WTO Agreement in such a way that guaranteed market access and nondiscriminatory treatment within a multilateral framework would no longer be possible. As was recalled by previous panels, GATT rules “are not only to protect current trade but also to create the predictability needed to plan future trade”.The protection of expectations of Members as to the competitive relationship between their products and the products of other Members is therefore an important principle to be taken into account by panels when reviewing a particular measure. We are of the view that a type of measure adopted by a Member which, on its own, may appear to have a relatively minor impact on the multilateral trading system, may nonetheless raise a serious threat to that system if similar measures are adopted by the same or other Members. Thus, by allowing such type of measures even though their individual impact may not appear to be such as to threaten the multilateral trading system, one would affect the security and predictability of the multilateral trading system. We consequently find that when considering a measure under Article ⅩⅩ, we must determine not only whether the measure on its own undermines the WTO multilateral trading system, but also whether such type of measure, if it were to be adopted by other Members, would threaten the security and predictability of the multilateral trading system.

7.45 In our view, if an interpretation of the chapeau of Article ⅩⅩ were to be followed which would allow a Member to adopt measures conditioning access to its market for a given product upon the adoption by the exporting Members of certain policies, including conservation policies, GATT 1994 and the WTO Agreement could no longer serve as a multilateral framework for trade among Members as security and predictability of trade relations under those agreements would be threatened. This follows because, if one WTO Member were allowed to adopt such measures, then other Members would also have the right to adopt similar measures on the same subject but with differing, or even conflicting, requirements. If that happened, it would be impossible for exporting Members to comply at the same time with multiple conflicting policy requirements. Indeed, as each of these requirements would necessitate the adoption of a policy applicable not only to export production （such as specific standards applicable only to goods exported to the country requiring them） but also to domestic production, it would be impossible for a country to adopt one of those policies without running the risk of breaching other Members’ conflicting policy requirements for the same product and being refused access to these other markets. We note that, in the present case, there would not even be the possibility of adapting one's export production to the respective requirements of the different Members. Market access for goods could become subject to an increasing number of conflicting policy requirements for the same product and this would rapidly lead to the end of the WTO multilateral trading system.

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7.49 Accordingly, it appears to us that, in light of the context of the term “unjustifiable” and the object and purpose of the WTO Agreement, the US measure at issue constitutes unjustifiable discrimination between countries where the same conditions prevail and thus is not within the scope of measures permitted under Article ⅩⅩ. However, before making a definitive finding on this issue, we must consider several arguments put forward by the United States that relate generally to our analysis of Article ⅩⅩ.

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7.51 The United States further argues that the complainants confuse the difference between extra-jurisdictional application of a country's law and the application by a country of its law, within its jurisdiction, in order to protect resources located outside its jurisdiction. However, we note that we are not basing our finding on an extra-jurisdictional application of US law. Many domestic governmental measures can have an effect outside the jurisdiction of the government which takes them. What we found above was that a measure cannot be considered as falling within the scope of Article ⅩⅩ if it operates so as to affect other governments’ policies in a way that threatens the multilateral trading system, as described in paragraph 7.45 above. For instance, a US requirement, that US norms regarding the characteristics of a given product be met for that product to be allowed on the US market, would not constitute such a threat. Such types of measures are contemplated by the WTO Agreement on Technical Barriers to Trade and the Agreement on Sanitary and Phytosanitary Measures. However, requiring that other Members adopt policies comparable to the US policy for their domestic markets and all other markets represents a threat to the WTO multilateral trading system. As affirmed by the Appellate Body in its report in the Gasoline case, “Members have a large measure of autonomy to determine their own policies on the environment …, their environmental objectives and the environmental legislation they enact and implement”, circumscribed only, so far as concerns the WTO, by the need to respect the requirements of the General Agreement and the other covered agreements. Therefore, a Member's measure which conditions access to its market on the adoption by the exporting Member of certain conservation policies is a denial of such autonomy.

7.52 The United States argues that the right of WTO Members to take measures under Article ⅩⅩ to conserve and protect natural resources is reaffirmed and reinforced by the Preamble to the WTO Agreement. Although we do not disagree in general with this statement, we are not persuaded that this argument is a reason to change our finding. Whilst the central focus of that Agreement is to promote economic development through trade, we note that the Preamble acknowledges that the optimal use of the world's resources must be pursued “in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means of doing so in a manner consistent with \[Members’\] respective needs and concerns at different levels of economic development”. Thus the Preamble endorses the fact that environmental policies must be designed taking into account the situation of each Member, both in terms of its actual needs and in terms of its economic means. Moreover, the record before us and, in particular, the answers of the experts to the questions of the Panel, strongly suggest that the environmental issues at stake in this case should be evaluated to a large degree in light of local and regional conditions. They also suggest that conservation measures should be adapted, inter alia, to the environmental, social and economic conditions prevailing where they are to be applied. We further note that the 1992 Rio Declaration on Environment and Development recognizes the right of States to design their own environmental policies on the basis of their particular environmental and developmental situations and responsibilities. It also stresses the need for international cooperation and for avoiding unilateral measures. In this light, we consider that the Preamble does not justify interpreting Article ⅩⅩ to allow a Member to condition access to its market for a given product on the adoption of certain conservation policies by exporting Members in order to bring them into line with those of the importing Member. On the contrary, the diversity of the environmental and development situations underlined by the Preamble can best be taken into account through international cooperation. The Preamble also implies that attempts to generalize standards of environmental protection would require multilateral discussion, especially when, as here, developing countries are involved. Therefore, we do not consider that the wording of the Preamble referred to by the United States should lead us to a different conclusion than the one reached above.

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7.54 In addition, the United States argues that nothing in Article ⅩⅩ requires a Member to seek negotiation of an international agreement instead of, or before adopting unilateral measures. In any event, the United States claims it offered to negotiate but the complainants did not reply.

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7.56 We note that Section 609 contains provisions calling upon the US Secretary of State to initiate negotiations as soon as possible for the development of bilateral or multilateral agreements for the protection and conservation of the species of sea turtles covered by that Section.

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However, we have no evidence that the United States actually undertook negotiations on an agreement on sea turtle conservation techniques which would have included the complainants before the imposition of the import ban as a result of the CIT judgement. … We therefore conclude that, in spite of the possibility offered by its legislation, the United States did not enter into negotiations before it imposed the import ban. As we consider that the measures sought by the United States were of the type that would normally require international cooperation, we do not find it necessary to examine whether parties entered into negotiations in good faith and whether the United States, absent any result, would have been entitled to adopt unilateral measures.

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7.61 In reaching our conclusions, we based ourselves on the current status of the WTO rules and of international law. As far as the WTO Agreement is concerned, we considered that certain unilateral measures, insofar as they could jeopardize the multilateral trading system, could not be covered by Article ⅩⅩ. Our findings with respect to international norms confirm our reasoning regarding the WTO Agreement and GATT. General international law and international environmental law clearly favour the use of negotiated instruments rather than unilateral measures when addressing transboundary or global environmental problems, particularly when developing countries are concerned. Hence a negotiated solution is clearly to be preferred, both from a WTO and an international environmental law perspective. However, our findings regarding Article ⅩⅩ do not imply that recourse to unilateral measures is always excluded, particularly after serious attempts have been made to negotiate; nor do they imply that, in any given case, they would be permitted. Nevertheless, in the present case, even though the situation of turtles is a serious one, we consider that the United States adopted measures which, irrespective of their environmental purpose, were clearly a threat to the multilateral trading system and were applied without any serious attempt to reach, beforehand, a negotiated solution.

7.62 We therefore find that the US measure at issue is not within the scope of measures permitted under the chapeau of Article ⅩⅩ.

3. Article ⅩⅩ（b） and （g）

7.63 In line with our approach described in para. 7.29 above, we do not find it necessary to examine whether the US measure is covered by the terms of Article ⅩⅩ（b） or （g）.

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ⅧI. CONCLUSIONS

8.1 In the light of the findings above, we conclude that the import ban on shrimp and shrimp products as applied by the United States on the basis of Section 609 of Public Law 101-162 is not consistent with Article Ⅺ:1 of GATT 1994, and cannot be justified under Article ⅩⅩ of GATT 1994.

8.2 The Panel recommends that the Dispute Settlement Body request the United States to bring this measure into conformity with its obligations under the WTO Agreement.

Questions:

1. What instrument did the Panel recourse to when interpreting GATT Article ⅩⅩ?

2. What's the main idea of the Panel's findings?

【复习思考题】

1.依据国际法的基本原理，你认为应该如何解决WTO协议与多边环境协议之间所产生的冲突？

2.如何正确理解并适用GATT第20条（b）项和（g）项的环境保护条款?

3.WTO有关环境的规则在性质上有何特点？

4.试论述劳工标准与国际贸易相挂钩的原因及后果。

5.试论述劳工标准在多边贸易体制内外的演变。

6.劳工标准应否纳入WTO规制的范畴？

[1] http://www.ilo.org/dyn/normlex/en/f?p=1000:1:595531615200934::NO:::，2012年3月23日访问。

[2] 这八个公约包括:1.关于自由结社和集体谈判权利公约：（1）1948年结社自由与保障组织权利公约（Freedom of Association and Protection of the Right to Organise Convention 1948）第87号公约;（2）1949年组织权与集体谈判权公约（The Right to Organise and Collective Bargaining Convention,1949）第98号公约; 2.关于废除一切形式的强迫或强制劳动公约：（1）1930年强迫劳动公约（Forced Labor Convention,1930）第29号公约;（2）1957年废除强迫劳动公约（Abolition of Forced Labor Convention,1957）第105号公约; 3.关于平等权方面的公约：（1）1958年（就业与职业）歧视公约（Discrimination （Employment and Occupation）Convention,1958）第111号公约;（2）1951年同工同酬公约（Equal Remuneration Convention,1951）第100号公约; 4.关于禁止使用童工的公约：（1）1973年最低就业年龄公约（Minimum Age Convention,1973）第138号公约;（2）1999年最恶劣形式的童工公约（Worst Forms of Child Labor Convention，1999）第182号公约。

[3] Trade, Employment and Labour Standards:A Study of Core Workers’ Rights and International Trade, OECD 1996,p.26.

[4] ILO Declaration on Fundamental Principles and Rights at Work, art.2.

[5] 郑功成主编：《全球化下的劳工与社会保障》，北京，中国劳动社会保障出版社，2002，第83页。

[6] Trade, Employment and Labour Standards:A Study of Core Workers’ Rights and International Trade, OECD 1996,p.85.

[7] 边永民：《国际贸易与劳工保护的关系》，载《西南民族大学学报》（人文社科版），2006（11）。

[8] John H.Jackson,Legal Problems of International Economic Relations:Cases,Materials and Text,Forth Edition,U.S.A.:West Group,2002,p.326. 转引自戴德生博士论文：《国际贸易体制中的劳工标准问题研究》，2007。

[9] John H.Jackson,Legal Problems of International Economic Relations:Cases,Materials and Text,Forth Edition, U.S.A.:West Group,2002,p.1033.

[10] Ministerial Declaration,WT/MIN（96）/DEC,18 December 1996,para.4.

[11] International Trade and Core Labour Standards, OECD Observer 2000,p.2.

[12] Ministerial Declaration , WT/MIN（01）/DEC/1,20 November 2001, para.8.

[13] United States - Chile Free Trade Agreement，art.18.7.

[14] United States - Singapore Free Trade Agreement，art.17.7.

[15] U.S.-Australia Free Trade Agreement 18.7.

[16] Agreement between the Government of the United States of America and the Government of the Kingdom of Bahrain on the Establishment of a Free Trade Area，art.16.7.

[17] Agreement between the Government of the United States of America and the Government of the Kingdom of Bahrain on the Establishment of a Free Trade Area,art.15.7.

[18] Treaty Between The United States of America and The Oriental Republic of Uruguay Concerning The Encouragement and Reciprocal Protection of Investment, art. 13.2.

[19] Treaty Between The Government of The United States of America and The Government of The Republic of Rwanda Concerning The Encouragement and Reciprocal Protection of Investment,art. 13.2.