Abstract
Although almost twenty years have passed since the Appellate Body decision in US—Shrimp, the case remains important. Not only did it shape the interpretation of Article XX of the GATT 1994, it is shaping recent Appellate Body decisions interpreting the TBT Agreement. In the “Trilogy Cases” the Appellate Body endeavoured to interpret the TBT and the GATT Agreement consistently. It remains to be seen whether the Appellate Body will continue to do so when it eventually interprets the first sentence of Annex 1.1 of the TBT Agreement.
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Notes
- 1.
Appellate Body Report on United States—Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, /DSR 1998:VII, 2755 (Hereinafter US—Shrimp).
- 2.
Appellate Body Report on United States—Import Prohibition of Certain Shrimp and Shrimp Products, Recourse to Article 21.5 of the DSU by Malaysia, WT/DS58/AB/RW/DSR 2001:XIII, 6481 (Hereinafter US—Shrimp (Article 21.5)).
- 3.
Ibid.
- 4.
To the Appellate Body’s credit, they tried to correct this error in European Communities—Measures affecting asbestos and asbestos containing products, WT/DS135/AB/R/DSR 2001:VII by creating a special procedure for accepting amicus submission. Many WTO Members did not appreciate this effort. See General Council, Minutes of Meeting Held in the Centre William Rappard on 22 November 2000, WTO Document WT/GC/M/60 (23 January 2001).
- 5.
GATT Panel Report on United States—Restrictions on Imports of Tuna, DS21/R—BISD 39S/155 (Hereinafter Tuna/Dolphin I (Mexico)); GATT Panel Report on United States—Restrictions on Imports of Tuna, DS29/R (Hereinafter Tuna/Dolphin II—EEC).
- 6.
Appellate Body Report on United States—Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/AB/R (Hereinafter US—Tuna II (Mexico)).
- 7.
GATT Panel Report on Canada—Measures Affecting Exports of Unprocessed Herring and Salmon, L 6268–35S/98; GATT Panel Report on Thailand—Restrictions on Importation of and Internal Taxes on Cigarettes, DS10/R–BISD 37S/200.
- 8.
GATT Panel Report on United States—Prohibition of Imports of Tuna and Tuna Products from Canada, BISD 29S/91 at paragraph 4.9; Canada—Measures Affecting Exports of Unprocessed Herring and Salmon, at paragraph 4.4.
- 9.
Appellate Body Report on US—Shrimp, at paragraphs 130–131.
- 10.
Panel Report on United States—Standards for Reformulated and Conventional Gasoline, WT/DS2/R/DSR 1996:I, 29 (Hereinafter US—Reformulated Gasoline). The Panel here found that fresh air is an exhaustible natural resource (a finding that Brazil and Venezuela neglected to appeal).
- 11.
Appellate Body Reports on United States—Certain Country of Origin Labelling (COOL) Requirements, WT/DS384, 386/AB/R (Hereinafter US—COOL).
- 12.
This Annex provides in relevant part: “Document which lays down product characteristics or their related processes and production methods, including the applicable administrative provisions, with which compliance is mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a product, process or production method.”
- 13.
See generally Negotiating History of the Coverage of the Agreement on Technical Barriers to Trade with Regard to Labelling Requirements, Voluntary Standards, and Processes and Production Methods Unrelated to Product Characteristics, Note by the Secretariat, WT/CTE/W/10, G/TBT/W/11, 29 August 1995 at paragraph 146.
- 14.
The phrase “Trilogy Cases” refers to the Appellate Body’s decisions in US—Clove Cigarettes, US—Tuna, and US—COOL. See Appellate Body Reports on United States—Measures Affecting the Production and Sale of Clove Cigarettes, WT/DS406/AB/R; US—Tuna II (Mexico); US—COOL.
- 15.
Appellate Body Reports on European Communities—Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400, 401/AB/R.
- 16.
We know from the Appellate Body decision in US—Tuna II (Mexico) that the TBT Agreement may apply to laws and regulations involving labelling, marking, packaging, etc. Although the Appellate Body never explained why, one possible explanation is that the second sentence of Annex I:1 uses the term “exclusively” and does not use the term “related”. This suggests that the labeling scheme does not need to reflect “related” processes and production methods. Of course this explanation does not fully explain the use of the word “also” in the second sentence of Annex 1.1.
- 17.
Article 32 provides that “Recourse may be had 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 the interpretation according to article 31:(a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.”
- 18.
Mortenson criticises the International Court of Justice for relying on pre-Vienna Convention interpretive approaches, as well as Section 325 comment on The American Law Institute Restatement of the Law, Third, Foreign Relations Law of the United States 1987, See pp. 780, 821 and 822 (available online at http://www.kentlaw.edu/faculty/…/IntlLawFall2007/…/RestatementSources.doc).
- 19.
Appellate Body Report on China—Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, WT/DS363/AB/R at paragraph 403 (Hereinafter China—Publications and Audiovisual Products).
- 20.
Emphasis added.
- 21.
See GATT Panel Report, Thailand—Restrictions on Importation of and Internal Taxes on Cigarettes, DS10/R–37S/200, paragraphs 74–75, and GATT Panel Report, United States—Section 337 of the Tariff Act of 1930, L/6439–36S/345, paragraphs 5.26–27.
- 22.
See Appellate Body Report on US—Shrimp at paragraph 125, citing Additional submission of the United States, dated 17 August 1998 at paragraph 5.
- 23.
Appellate Body Report on European Communities—Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R/DSR 2001:VII, 3243 (Hereinafter EC—Asbestos).
- 24.
Appellate Body Report on US—Shrimp (Article 21.5).
- 25.
Appellate Body Report on Korea—Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WT/DS161, 169/AB/R (Hereinafter Korea—Beef).
- 26.
Ibid. at paragraph 161. Footnote 104 of this decision arguably seeks to justify this important change:
We recall that we have twice interpreted Article XX(g), which requires a measure “relating to the conservation of exhaustible natural resources”. (emphasis added). This requirement is more flexible textually than the “necessity” requirement found in Article XX(d). We note that, under the more flexible “relating to” standard of Article XX(g), we accepted in United States—Gasoline a measure because it presented a “substantial relationship”, (emphasis added) i.e., a close and genuine relationship of ends and means, with the conservation of clean air. Supra, footnote 98, p.19. In United States—Shrimp we accepted a measure because it was “reasonably related” to the protection and conservation of sea turtles. Supra, footnote 98, at para. 141.
- 27.
At the time of writing, the Panel had released its decision in the US—Tuna II (Article 21.5) compliance case, and the United States had filed a Notice of Appeal, Notification of an Appeal by the United States Under Article 16.4 and Article 17 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), and Under Rule 20(1) of the Working Procedures for Appellate Review, United States—Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, Recourse to Article 21.5 of the DSU by Mexico WT/DS381/24 (5 June 2015). (Hereinafter US—Tuna II (Article 21.5))
References
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Appellate Body Reports on European Communities—Measures prohibiting the importation and marketing of seal products, WT/DS400, 401/AB/R.
Appellate Body Report on Korea—Measures affecting imports of fresh, chilled and frozen beef, WT/DS161, 169/AB/R.
Appellate Body Reports on United States—Certain country of origin labelling (COOL) requirements, WT/DS384, 386/AB/R.
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Appellate Body Report on United States—Import prohibition of certain shrimp and shrimp products, Recourse to Article 21.5 of the DSU by Malaysia, WT/DS58/AB/RW / DSR 2001:XIII, 6481.
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Appellate Body Report on United States—Measures concerning the importation, marketing and sale of tuna and tuna products, WT/DS381/AB/R.
GATT Panel Report on Canada—Measures affecting exports of unprocessed herring and salmon, L 6268 – 35S/98.
GATT Panel Report on Thailand—Restrictions on importation of and internal taxes on cigarettes, DS10/R - 37S/200.
GATT Panel Report on United States—Prohibition of imports of tuna and tuna products from Canada, BISD 29S/91.
GATT Panel Report on United States—Restrictions on imports of tuna, DS21/R – BISD 39S/155.
GATT Panel Report on United States—Restrictions on imports of tuna, DS29/R.
GATT Panel Report on United States—Section 337 of the Tariff Act of 1930, L/6439 - 36S/345.
General Council (2001) Minutes of meeting held in the Centre William Rappard on 22 November 2000, WTO Document WT/GC/M/60.
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Mortenson JD (2013) The travaux of travaux: Is the Vienna Convention hostile to drafting history? American Journal of International Law 107.
Negotiating History of the Coverage of the Agreement on Technical Barriers to Trade with Regard to Labelling Requirements, Voluntary Standards, and Processes and Production Methods Unrelated to Product Characteristics (1995) Note by the Secretariat, WT/CTE/W/10, G/TBT/W/11.
Panel Report on United States—Standards for reformulated and conventional gasoline, WT/DS2/R / DSR 1996:I.
The American Law Institute (1987) Restatement of the law, third, Foreign relations law of the United States, www.kentlaw.edu/faculty/…/IntlLawFall2007/…/RestatementSources.doc, Accessed 27 Nov 2015.
United States—Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products Resource to Article 21.5 of the DSU by Mexico, WT/DS381/24 (Hereinafter US—Tuna II (Article 21.5)
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Appleton, A.E. (2016). The US—Shrimp Appeal: 20 Years on. In: Das, A., Nedumpara, J. (eds) WTO Dispute Settlement at Twenty. Springer, Singapore. https://doi.org/10.1007/978-981-10-0599-2_6
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