WORLD TRADE
ORGANIZATIONWT/DS58/AB/RW
22 October 2001
(01-5166)
Original:  English
UNITED STATES – IMPORT PROHIBITION OF CERTAIN
SHRIMP AND SHRIMP PRODUCTS
RECOURSE TO ARTICLE 21.5 OF  THE DSU BY MALAYSIA
AB-2001-4
Report of the Appellate BodyWT/DS58/AB/RW
Page i
I. Introduc tion................................................................................................................. ................1
II. Arguments of the Participants  and the Third Particip ants ..........................................................5
A. Claims of Error by Ma laysia – Ap pellant...................................................................... 5
1. Terms of Reference...........................................................................................5
2. The Chapeau of Article XX of the GATT 1994 ...............................................6
B. Arguments of the United States – Appellee.................................................................... 9
1. Terms of Reference...........................................................................................9
2. The Chapeau of Article XX of the GATT 1994 ...............................................9
C. Arguments of the Third Participants............................................................................ 13
1. Australia..........................................................................................................13
2. European Communities...................................................................................14
3. Hong Kong, China ..........................................................................................164. India ................................................................................................................16
5. Japan ...............................................................................................................17
6. Mexico ............................................................................................................18
7. Thailand ..........................................................................................................18
III. Preliminary Pr ocedural Matter.............................................................................................. ....19
IV. Issues Raised in this Appeal ................................................................................................ .....20
V. Terms of Reference........................................................................................................... ........21
VI. The Chapeau of Article XX of the GATT 1994 .......................................................................31
A. The Nature and the Extent of the Duty of the United States to Pursue
International Cooperation in the Protection and Conservation of Sea Turtles........... 33
B. The Flexibility of th e Revised Guidelines .................................................................... 43
VII. Findings and Conclusions................................................................................................... ......50WT/DS58/AB/RW
Page 1
WORLD TRADE ORGANIZATION
APPELLATE BODY
United States – Import Prohibition of Certain
Shrimp and Shrimp Products
Recourse to Article 21.5 of the DSU by Malaysia
Malaysia, Appellant
United States, Appellee
Australia, Third Participant
European Communities, Third Participant
Hong Kong, China, Third Participant
India, Third Participant
Japan, Third Participant
Mexico, Third Participant
Thailand, Third ParticipantAB-2001-4
Present:Bacchus, Presiding Member
Ganesan, Member
Lacarte-Muró, Member
I. Introduction
1. Malaysia appeals from certain issues of law and legal interpretations in the Panel Report,
United States – Import Prohibition of Certain Shrim p and Shrimp Products, Recourse to  Article 21.5
of the DSU   by Malaysia (the "Panel Report").1  In accordance with Article 21.5 of the Understanding
on Rules and Procedures Governing the Settlement of Disputes (the "DSU"), Malaysia requested that
the Dispute Settlement Body (the "DSB") refer to a panel its complaint with respect to whether the
United States had complied with the recommendations and rulings of the DSB in  United States –
Import Prohibition of Certain Shrimp and Shrimp Products   ("United States – Shrimp" ).
2. The background to this dispute is set out in detail in the Panel Report.2  On 6 November 1998,
the DSB adopted the reports of the original panel and the Appellate Body in  United States – Shrimp . 3
The DSB recommended that the United States bring its import prohibition into conformity with its
obligations under the  Marrakesh Agreement Establishing the World Trade Organization 
(the " WTO Agreement ").  On 6 December 1999, the period of time for implementation established by
                                                     
1WT/DS58/RW, 15 June 2001.
2Panel Report, paras. 1.1-1.5 and 2.12-2.21.
3Appellate Body Report, WT/DS58/AB/R, adopted 6 November 1998;  original panel report,
WT/DS58/R and Corr.1, as modified by the Appellate Body Report, WT/DS58/AB/R, adopted
6 November 1998.WT/DS58/AB/RW
Page 2
the parties under Article 21.3(b) of the DSU expired.  4  At the DSB meeting of 23 October 2000,
Malaysia informed the DSB that it was not satisfie d that the United States had complied with the
recommendations and rulings of the DSB, and announced that it wished to seek recourse to a panel
under Article 21.5 of the DSU.  5  The DSB referred the matter to the original panel.
3. Malaysia's complaint relates to a measure taken by the United States in the form of an import
prohibition to protect and conserve certain species of sea turtles, considered to be an endangeredspecies.  This original measure, Section 609 of the United States Public Law 101-162 ("Section 609"),and its application are described in detail in the Appellate Body Report in United States – Shrimp .
6
The Appellate Body found that Section 609 was provisionally justified under Article XX(g) of the
General Agreement on Tariffs and Trade 1994  (the "GATT 1994").  In implementing the
recommendations and rulings of the DSB, the United States did not amend Section 609, with theresult that the import prohibition is still in effect.  However, the United States Department of Stateissued the Revised Guidelines for the Implementation of Section 609 of Public Law 101-162 Relating
to the Protection of Sea Turtles in Shrimp Trawl Fishing Operations (the "Revised Guidelines").
7
These Revised Guidelines replace the guidelines issued in April 1996 that were part of the original
measure.  This dispute between Malaysia and the United States arises in relation to the importprohibition of shrimp and shrimp products provided for by Section 609, and its application by theUnited States.
4. Section 609, the Revised Guidelines, and their application, are described in the Panel Report.
 8
In the following paragraphs, we set out those aspects of the Revised Guidelines that are pertinent to
the consideration of the issues raised in this appeal.
5. Section 609(b)(2) provides that the import prohibition on shrimp does not apply to harvesting
nations that are "certified" according to criteria set by the United States.  The Revised Guidelines setforth the criteria for certification.  The stated goal of the programme set out in the Revised Guidelinesis the same as that set out in the programme of the original guidelines, namely, to protect endangeredsea turtle populations from further decline by reducing their incidental mortality in commercial
                                                     
4WT/DS58/15, 15 July 1999.
5Malaysia's recourse to a  panel was also in acco rdance 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.
6Supra,  footnote 3, paras. 3-6.
7United 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.
8Panel Report, paras. 2.5 – 2.11 and 2.22 – 2.32.WT/DS58/AB/RW
Page 3
shrimp trawling.  A central element of the United States programme is that commercial shrimp
trawlers are  required to use Turtle Excluder Devices ("TEDs") approved in accordance with standardsestablished by the United States National Marine Fisheries Service.  Where the government of aharvesting country seeks certification on the basis of having adopted a programme that is based on
TEDs, certification will be granted if this government's programme includes a requirement that
commercial shrimp trawlers use TEDs that are " comparable in effectiveness " to those used in the
United States, and a credible enforcement effort that includes monitoring for compliance.
 9
6. Under the original guidelines, the practice of the Department of State was to certify countries
only after  they had shown that they required the use of  TEDs.  Under the Revised Guidelines,
countries may apply for certification even if they do not require the use of  TEDs.  In such cases, aharvesting country has to demonstrate that it has implemented, and is enforcing, a " comparably
effective " regulatory programme to protect sea turtles without the use of  TEDs.  The Department of
State is required "to take fully into account any demonstrated differences between the shrimp fishing
conditions in the United States and those in other nations, as well as information available from other
sources."
 10
7. An exporting country may also be certified if its shrimp fishing environment does not pose a
threat of incidental capture of sea turtles.  The Revised Guidelines provide that the Department ofState shall certify a harvesting country pursuant to Section 609 if it meets any of the followingcriteria:  the relevant species of sea turtles do not occur in waters subject to that country's jurisdiction;in that country's waters, shrimp is harvested exclusively by means that do not pose a threat to seaturtles, for example, any country that harvests shri mp exclusively by artisanal means;  or, commercial
shrimp trawling operations take place exclusively in waters in which sea turtles do not occur.
 11
8. Before the Panel, Malaysia argued that the Un ited States had failed to comply with the
recommendations and rulings of the DSB, and that , consequently, the United States continued to
violate its obligations under the GATT 1994.  In its Report circulated on 15 June 2001, the Panelfound as follows:
                                                     
9Panel Report, para. 2.25.
10Ibid., para. 2.28.
11Ibid. , para. 2.29.WT/DS58/AB/RW
Page 4
(a) [t]he measure adopted by the United States in order to comply
with the recommendations and rulings of the DSB violates
Article XI.1 of the GATT 1994;
(b) in light of the recommendations and rulings of the DSB,
Section 609 of Public Law 101-162, as implemented by theRevised Guidelines of 8 July 1999 and as applied so far by
the [United States] authorities, is justified under Article XX
of the GATT 1994 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.
 12
9. The Panel urged "Malaysia and the United States to cooperate fully in order to conclude as
soon as possible an agreement which will permit the protection and conservation of sea turtles to thesatisfaction of all interests involved and taking into account the principle that States have common butdifferentiated responsibilities to conserve and protect the environment."
 13 (footnote omitted)
10. On 23 July 2001, Malaysia notified the DSB of its intention to appeal certain issues of law
covered in the Panel Report and certain legal interpretations developed by the Panel, pursuant toparagraph 4 of Article 16 of the DSU, and filed a Notice of Appeal pursuant to Rule 20 of theWorking Procedures for Appellate Review  (the " Working Procedures ").  On 2 August 2001,
Malaysia filed its appellant's submission.
 14  On 17 August 2001, the United States filed an appellee's
submission.  15  On the same day, Australia, the European Communities, Hong Kong, China, India,
Japan, Mexico and Thailand each filed a third participant's submission.  16
11. On 13 August 2001, the United States requested that the Division hearing this appeal change
the date of the oral hearing set out in the workin g schedule for this appeal.  After inviting the
participants to make their views known with respect to this request, the Division ruled that it wouldnot change the date of the oral hearing.  Accordingly, the oral hearing in the appeal was held on4 September 2001.  The participants and third participants presented oral arguments and responded toquestions put to them by the Members of the Division.
                                                     
12Panel Report, para. 6.1.
13Ibid., para. 7.2.
14Pursuant to Rule 21 of the  Working Procedures .
15Pursuant to Rule 22 of the  Working Procedures .
16Pursuant to Rule 24 of the  Working 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.WT/DS58/AB/RW
Page 5
II. Arguments of the Participants and the Third Participants
A. Claims of Error by Malaysia – Appellant
1. Terms of Reference
12. Malaysia submits that the Panel erred in its examination of the new measure taken by the
United States to comply with the recommendations and rulings of the DSB in  United States – Shrimp.
13. Malaysia submits that it is a legal principle that an implementing measure must be examined
for conformity with the covered agreements rather than for conformity with  the recommendations and
rulings of the DSB.  This principle is borne out in the case in  Canada – Measures Affecting the
Export of Civilian Aircraft – Recourse by Brazil to Article 21.5 of the DSU  ("Canada –
Aircraft (21.5) ") 17, where the Appellate Body held that the scope of Article 21.5 dispute settlement
proceedings is not limited to the issue of whether or not a WTO Member has implemented therecommendations and rulings of the DSB.  The Appell ate Body ruled that the task of the panel was to
determine whether the new measure is consistent with the disputed provisions of theWTO Agreement .
14. Malaysia submits that, in carrying out its review under Article 21.5 of the DSU, a  panel is not
confined to examining the "measure taken to comply" only from the perspective of the claims,arguments and factual circumstances that relate to the measure that was the subject of the originalproceedings.  Although these may have some relevance in proceedings under Article 21.5 of the DSU,Malaysia submits that Article 21.5 proceedings involve, in principle, not the original measure, butrather a new and different measure that was not before the original panel.  In Malaysia's view, theutility of the review envisaged under Article 21.5 of the DSU would be seriously undermined if apanel were restricted to examining the new measure from the perspective of the claims, arguments
and factual circumstances that related to the original measure.
15. Malaysia argues that the Panel erred in its treatment of the Appellate Body Report in
United States – Shrimp .  First, Malaysia asserts that in relying solely on the reasoning of the Appellate
Body, the Panel has in fact relied on the claims and arguments brought by the  parties that related tothe original measure.  Second, Malaysia argues that the Panel erred in treating the Appellate BodyReport in  United States – Shrimp  as having proposed alternative courses of conduct or alternative
measures as  conditions  which, if fulfilled, would necessarily render the implementing measure
                                                     
17Appellate Body Report, WT/DS70/AB/RW, adopted 4 August 2000.WT/DS58/AB/RW
Page 6
consistent with the relevant covered agreement.  In Malaysia's view, the alternative courses of conduct
or alternative measures referred to by the Appellate Body were  dicta , and, therefore, the Panel erred
in interpreting these  dicta   as positive conditions for determining GATT-consistency.
2. The Chapeau of Article XX of the GATT 1994
16. Malaysia appeals certain of the Panel's conclusions under the chapeau of
Article XX of the GATT 1994.  In particular, Malaysia submits that the Panel erred in considering theobligation of the United States as an obligation to  negotiate , as opposed to an obligation to  conclude
an international agreement.
17. Malaysia notes that the Appellate Body made pertinent observations and comments in its
analysis of the chapeau of Article XX of the GATT 1994 with respect to "arbitrary or unjustifiable
discrimination".  In its treatment of "unjustifiable discrimination" the Appellate Body stated
"[a]nother aspect of the application of Section 609 that bears heavily in any appraisal of justifiable orunjustifiable discrimination is the failure of the United States to engage the  appellees, as well asother Members exporting shrimp to the United States, in serious, across-the-board negotiations withthe objective of concluding bilateral or multilateral agreements for the protection and conservation ofsea turtles, before enforcing the import prohibition against the shrimp exports of those otherMembers".
 18
   In Malaysia's view, these remarks of the Appellate Body emphasize the need for the
conclusion  of an international agreement.
18. Malaysia submits that these remarks of the Appellate Body constitute  dicta .  The Panel
misunderstood these remarks to mean that alternative actions, in particular a demonstration of prior
good faith negotiation, would "insulate" a unilateral measure from being characterized as"unjustifiable discrimination".  It is further submitted that in the context of the new measure, the Panelfailed to examine whether, in the circumstances, the United States acted in a manner constituting"unjustifiable discrimination".
19. Malaysia further contends that if the conclusion of the Panel is allowed to stand, it will lead to
the "incongruous" result that any WTO Member would be able to offer to negotiate in good faith anagreement incorporating its "unilaterally defined standards" before claiming that its measure isjustified under the pertinent exceptions of Article XX of the GATT 1994.  According to Malaysia, the
conclusion of the Panel will thus lead to the result that if a WTO Member fails to  conclude  an
                                                     
18Appellate Body Report,  United States – Shrimp , supra , footnote 3, para. 166.WT/DS58/AB/RW
Page 7
agreement, it could still claim that its application of a unilateral measure does not constitute
"unjustifiable discrimination".
20. In addition, Malaysia submits that the Panel erred in concluding that the Inter-American
Convention for the Protection and Conservation of S ea Turtles (the "Inter-American Convention") can
reasonably be considered as a benchmark of what can be achieved through multilateral negotiations in
the field of protection and conservation.  The Panel did not provide any reasoning for taking this view.The Appellate Body cited the Inter-American Conven tion merely as an "example" of efforts made by
the United States to reach a multilateral solution in relation to the conservation of sea turtles.  In nosense was that convention considered as a "legal standard" by the Appellate Body.  Moreover, theAppellate Body stated that one of the obligations which the United States had to fulfill in order toavoid "unjustifiable discrimination"  was to engage in serious efforts to negotiate in good faith  before
the enforcement of a "unilateral" import prohibition.
21. Malaysia submits that the Panel's legal interpretation is erroneous because the United States
had not proven that the unilateral and non-consensual procedures of the import prohibition had been
eliminated.  On the contrary, the ongoing nego tiations on the Memorandum of Understanding on the
Conservation and Management of Marine Turtles and their Habitats of the Indian Ocean and South-East Asian Region (the "South-East Asian MOU") demonstrated that an alternative and less traderestrictive course of action for securing the legitimate goals of the United States measure, wasavailable.  The logical consequence of the above argument is that the negotiations are underway, and,therefore, the import prohibition should be lifted.
22. Malaysia also appeals the Panel's conclusions under the heading "[m]easures comparable in
effectiveness to the United States measure".  Malaysia submits that the Appellate Body spoke of
measures comparable in effectiveness to the United States measures in the context of illustrating thedifference between the design and the application of the original measure.
 19  The Appellate Body
noted that while the design of the measure permitted certification of countries with measurescomparable in effectiveness to United States measures, this was not the way in which the measure wasapplied in fact.  The Panel misread this observation of the Appellate Body to mean that a measurerequiring that exporting countries adopt regulatory programmes that are comparable in effectivenessto that of an importing country could not constitute "unjustifiable discrimination".
23. Malaysia contends that the Appellate Body did not accept the legitimacy of "comparable
measures" – either implicitly or otherwise.  Rather, it was merely describing the intended operation of
                                                     
19Appellate Body Report,  United States – Shrimp , supra , footnote 3, para. 163.WT/DS58/AB/RW
Page 8
the original measure.  This is evident,  inter alia ,  from the fact that the term "comparable in
effectiveness" is the language of the 1996 Guidelines, which implemented the original measure.  TheAppellate Body was in no way authorizing importing Members to impose unilateral measuresconditioning market access on an exporting Member having measures "comparable in effectiveness"
to their own measures.  The Panel, therefore, erred in assuming that the new measure, which imposed
this requirement of measures "comparable in effectiveness to the United States regulatoryprogramme", could not constitute unjustifiable discrimination.
24. Malaysia also submits that the Panel erred in finding that the Revised Guidelines allowed for
 flexibility ,  as they take account of situations where sea turtles are not endangered by shrimp trawling.
Malaysia submits that the Revised Guidelines address only the incidental capture of sea turtles in thecourse of shrimp trawl harvesting.  Close scrutiny of the Revised Guidelines discloses that they do notaddress the fact that the same conditions do not prevail in Malaysia.  Malaysia does not practiseshrimp trawling and the incidental capture of sea turtles in Malaysian waters is due to fish trawling
and not shrimp trawling.  Thus the Revised Guidelines fail to take into account the specific conditions
prevailing in Malaysia and they, therefore, vi olate the chapeau of Article XX of the GATT 1994.
25. Malaysia appeals the Panel's treatment of the decision of the United States Court of
International Trade (the "CIT") in Turtle Island Restoration Network, et al. v. Robert L. Mallett,
 et al.
20 (the " Turtle Island  case").  Malaysia is of the view that, in declining to consider this decision,
the Panel erred in taking the view that municipal law is insulated from scrutiny by panels.  Malaysiasubmits that had the Panel scrutinized the decision in the  Turtle Island  case, and assessed the
likelihood and consequences of the Revised Guidelines being modified in the future, it would have
found that the "unjustifiable discrimination" under the chapeau of Article XX of the GATT 1994 has
not been eliminated.
26. Finally, Malaysia requests that the Appellate Body recommend that the import prohibition be
lifted so as to give effect to the recommendations and rulings of the DSB as per the Appellate BodyReport.
                                                     
20110 Fed. Supp. 2d 1005 (CIT, 2000).WT/DS58/AB/RW
Page 9
B. Arguments of the United States – Appellee
1. Terms of Reference
27. The United States submits that Malaysia's argument that the Panel failed to apply the correct
scope of review in accordance with Article 21.5 of the DSU is without merit.  Malaysia's reliance inthis regard on the Appellate Body Report in  Canada – Aircraft (21.5)  is misplaced.  The issue in that
appeal  was whether the Panel's review was limited to issues considered in the original panel and
Appellate Body proceedings.  The Appellate Body found that the DSU imposed no such limitation.  In
the present case, however, the Panel's scope of review was fully consistent with the Appellate Body
findings in  Canada – Aircraft (21.5) .
28. The United States observes that the Panel in this case quoted at length from the Appellate
Body Report in  Canada – Aircraft (21.5) .  The Panel then concluded that it was 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 andthe Appellate Body proceedings.
29. The United States argues that Malaysia's argument is based solely on the Panel's use of the
phrase "recommendations and rulings of the DSB".  In the view of the United States, the Panel's use
of the phrase "complied with the recommendations and rulings of the DSB", is entirely appropriate,
and indicates no limitation in its scope of review.  In the context of this case, the recommendationsand rulings of the DSB are that the United States "bring its measure … into conformity with theobligations of the United States under [the GATT 1994]".  The GATT 1994 is the only coveredagreement at issue in the dispute.
2. The Chapeau of Article XX of the GATT 1994
30. The United States submits that the Panel correctly found that the United States has remedied
the aspect of discrimination relating to differences in efforts to negotiate a bilateral or multilateralagreement.  In its previous ruling in  United States - Shrimp , the Appellate Body found that certain
aspects of the application of Section 609, in their "cumulative effect", amounted to unjustifiablediscrimination between countries where the same conditions prevail.  One of those aspects related toefforts to negotiate.  The Appellate Body then cited, and relied upon, the factual findings of theoriginal panel concerning the absence of serious efforts of the United States to negotiate aconservation agreement with the complaining WTO Members.WT/DS58/AB/RW
Page 10
31. The United States contends that it has proceeded to remedy this aspect of unjustifiable
discrimination identified by the Appellate Body.  In particular, the United States has made substantialefforts to negotiate a sea turtle conservation agreement in the Indian Ocean and South-East Asiaregion.  The Panel found that these efforts did remedy this aspect of unjustifiable discrimination.
32. The United States submits that Malaysia does not contest the core findings of the
Panel, namely, that the United States has engaged in serious, good faith efforts to negotiate a sea turtleconservation agreement with the countries in the Indian Ocean and South-East Asia region.  ThePanel considered whether the United States had addressed the effort-to-negotiate aspect of"unjustifiable discrimination" identified by the Appellate Body, and properly found that theUnited States had indeed remedied this aspect of discrimination.
33. The United States submits that, instead of addressing the pertinent findings of the Panel,
Malaysia makes a number of arguments that are either based on mischaracterization of the PanelReport, or that amount to a request for a reversal of the key findings of the Appellate Body Report in
United States – Shrimp .  Malaysia argues that the Panel found that "a demonstration of prior good
faith negotiation would insulate a unilateral measure from being characterized as unjustifiablediscrimination."
 21  In the United States view, this  argument fails to take into account the context of
the Panel's discussions of efforts to negotiate, and thus amounts to a mischaracterization of thefindings of the Panel.
34. The United States submits that the discussions by the Appellate Body and the Panel
concerning negotiations arise in the context of applying the Article XX chapeau to the specific factsof this case.   The language of the chapeau of Article XX requires that the WTO Member imposing
the measure demonstrates that a measure is not applied in a manner that constitutes a means of
unjustifiable discrimination.  In the view of the United States, no single aspect of the application ofthe measure can, as Malaysia puts it, "insulate" the measure from an examination of other aspects ofalleged discrimination.
35. The United States contends that it has addressed the "unjustifiable discrimination" test of the
chapeau by making the  prima facie   case that the United States measure does not result in
unjustifiable discrimination between countries where the same conditions prevail.  In particular, in theoriginal panel and Appellate Body proceedings, the United States showed the absence of any
"unjustifiable discrimination between countries where the same conditions prevail" by demonstrating
                                                     
21Malaysia's appellant's submission, para. 3.11.WT/DS58/AB/RW
Page 11
that it applies the import restrictions even-handedly with respect to all countries that engage in shrimp
trawl fishing in waters inhabited by endangered sea turtles.
36. The United States notes Malaysia's argument that the Panel "erred" in concluding that the
Inter-American Convention on sea turtle conservation "can reasonably be considered as a benchmark
of what can be achieved through multilateral negotiations."  22  The United States submits that
Malaysia has cited the Panel Report out of context.  The Panel properly considered the United Statesefforts to negotiate for the purpose of determining whether the United States had remedied this aspectof discrimination identified by the Appellate Body.  In this context, the Panel examined the efforts to
negotiate involved in concluding the Inter-Ameri can Convention, and compared them with the efforts
made by the United States to negotiate a sea turtle conservation agreement for the Indian Ocean andSouth-East Asia region.  It was only in this sense that the Panel considered the Inter-AmericanConvention to be a "benchmark".
37. Regarding Malaysia's argument that the Panel erred in finding the United States measure to be
consistent with the  WTO Agreement   because "the United States had not proven that the unilateral
and non-consensual procedures of the import prohibition had been eliminated", the United Statessubmits that this argument runs counter to the fi nding in the Appellate Body Report reaffirming that
nothing in the text of Article XX requires the elimination of a measure simply by virtue of it being"unilateral".
38. The United States refers to Malaysia's argument that the Panel erred in finding the
United States measure to be consistent with the  WTO Agreement  because the Indian Ocean and
South-East Asia negotiations constitute an "alternative course of action for securing the legitimate
goals of the United States measure which was less restrictive."  According to the United States, this
argument is based on the flawed premise that a WTO Member must exhaust all possibilities forachieving its goals in other ways.  The  WTO Agreement  contains no such requirement, and the
Appellate Body made no such finding.
39. The United States submits that the Panel was correct in finding that the United States had
remedied the aspect of unjustifiable discriminati on identified in the Appellate Body Report relating to
flexibility and consideration of local conditions.
40. The Appellate Body found that the most conspi cuous flaw in the application of Section 609
was an apparent requirement that all other exporting Members adopt essentially the same policy as
                                                     
22Malaysia's appellant's submission, para. 3.13.WT/DS58/AB/RW
Page 12
that applied to domestic shrimp trawlers of the United States.  The Appellate Body noted that the
statutory provisions of Section 609 do not, in themselves, require that other WTO Members adopt
essentially the same policies and enforcement practices as the United States, but that the guidelinesthen in effect appeared to lack flexibility.  The Appellate Body also found that the guidelines did not
appear to allow for flexibility in the consideration of different conditions that may exist in different
harvesting nations.
41. The United States argues that Malaysia does not take issue with the Panel's analysis of the
language in the Revised Guidelines.  In addition, Malaysia did not seek to test the flexibility of theguidelines in practice by seeking certification of the Malaysian programme for conserving sea turtlesin shrimp trawl fisheries.
42. The United States refers to Malaysia's argument that the Revised Guidelines do not address
Malaysia's claim that "Malaysia does not practise shrimp trawling and the incidental catch of seaturtles is due to fish trawling and not shrimp trawling."
23  According to the United States, this "vague,
undeveloped argument" does not rebut the  prima facie  case that the revised United States guidelines
do in fact allow for flexibility and consideration of local conditions.
43. In the view of the United States, Malaysia's argument that the Panel "erred in taking the view
that the issue of municipal law is insulated from scrutiny by panels" mischaracterizes the Panel'sfindings, and is without merit.  The Panel considered the record before it, and properly concluded thatunder the Revised Guidelines, the importation of shrimp harvested by vessels using TEDs is allowed,even if the exporting nation has not been certified pursuant to Section 609.
44. With respect to the  Turtle Island  case, the United States submits that Malaysia does not
present any arguments as to why the Panel was incorr ect in its reasoning with respect to the relevant
domestic law.  As the Panel noted, the domestic court expressly declined to order any change in theRevised Guidelines, and those provisions of the Revised Guidelines that allow the importation ofTED-caught shrimp from non-certified countries remain in effect.
                                                     
23Malaysia's appellant's submission, para. 3.21.WT/DS58/AB/RW
Page 13
C. Arguments of the Third Participants
1. Australia
(a) Terms of Reference
45. Australia submits that, in accordance with the provisions of Article 21.5 of the DSU, a panel
is required to examine the consistency with a covered agreement of measures taken to comply with
the recommendations and rulings of the DSB.  This requires the relevant panel to conduct a fresh
factual and legal analysis of the revised or new measure.
46. It is Australia's view that the Panel in this case did not examine the measures taken to comply
on that basis.  Had it done so, Australia submits that the Panel would not have had sufficient groundsto arrive at the finding that Section 609 of Public Law 101-162, as implemented by the Revised
Guidelines of 8 July 1999 and as applied so far by the United States authorities, is justified underArticle XX of the GATT 1994.
(b) The Chapeau of Article XX of the GATT 1994
47. Australia argues that the Panel erred in its conclusion that engagement by the United States in
good faith negotiations would, in itself, necessarily  be sufficient to meet the requirement of the
chapeau of Article XX that its measure not be applied in a manner involving unjustifiablediscrimination.  This approach is inconsistent with the text of the chapeau of Article XX, and
misapplies the reasoning of the Appellate Body Report.
48. Australia is of the view that the Panel misconstrued the Appellate Body findings, and the
requirements of the chapeau of Article XX, in concluding that the United States would be entitled to
maintain the implementing measure if it were demonstrated that it was making serious, good faith
efforts to conclude an international agreement on the protection and conservation of sea turtles.  Thisinterpretation would seriously impair the delicate balance of rights and obligations embodied inArticle XX and open the door for WTO Members to justify unilaterally-imposed trade restrictionssimply on the basis of simultaneous entry into international negotiations.  Article XX does notproscribe unilateral trade restrictions, but a reasonable degree of limitation must be imposed on theiruse – in line with the wording of the chapeau – if the balance of rights and obligations is to bepreserved.
49. Australia submits that it is for the United States to demonstrate what serious, good faith
efforts it had undertaken to obviate or eliminate the unjustifiably discriminatory nature of the ban –WT/DS58/AB/RW
Page 14
including in the design, extent and implementation of the measure.  The progress of the Indian Ocean
initiative has demonstrated the existence of a viable, non-discriminatory alternative to the unilateralimport restriction.  Given this progress, the United States has not established why its unilateral importrestriction is no longer a form of unjustifiable discrimination.
50. Australia argues that the Panel did not ensure that the United States effectively met its burden
of proof in seeking to justify its measure pursuant to Article XX.  In particular, the United States didnot prove that its measure was consistent with the requirements of the chapeau of Article XX.  Thefact that the United States did not present sufficient evidence to demonstrate that the measure was nota means of unjustifiable discrimination meant that the Panel could not have found that theUnited States measure met the requirements of the chapeau.
2. European Communities
(a) Terms of Reference
51. The European Communities submits that, given that measures taken to comply with the
recommendations and rulings of the DSB are, by de finition, new and different measures that may be
inconsistent with provisions of the WTO Agreement  that were not examined by the original panel, it is
correct that a panel acting pursuant to Article 21.5 of the DSU will, as a consequence, have to address
a new and different factual and legal situation.
52. However, the European Communities submits that all panels are bound by their terms of
reference that are determined, pursuant to Article 7.1 of the DSU, by the "request for theestablishment of a panel".  The European Communities observes that, in its "request for theestablishment of a panel",  Malaysia referred only to the GATT 1994, and to the recommendationsand rulings of the DSB.  On the basis of Malaysia's "request for the establishment of a panel", and onits subsequent submissions, the Panel found that th e claims of Malaysia are exclusively based on the
findings of the Appellate Body and on non-compliance with them.  Malaysia does not make any newclaim under Article XX.
53. Given that the terms of reference of a panel "established" pursuant to Article 21.5 of the DSU
are based on the same claims and legal bases as the terms of reference of the original panel, thePanel's treatment of Malaysia's complaint pursuant to Article 21.5 of the DSU does not appear to be inerror.  The Panel was not at liberty to examine other issues.WT/DS58/AB/RW
Page 15
(b) The Chapeau of Article XX of the GATT 1994
54. The European Communities believes that international cooperation and negotiation must be
preferred over unilateral action, particularly in the area of the protection of the environment, for allthe reasons set out in the original Appellate Body Report.  The European Communities emphasizesthat international cooperation by its own nature is  a process and not a result.  Such cooperation is
necessarily based on reciprocal efforts to resolve a common concern in the mutual interest.
55. Under the circumstances of the present case, it appears to the European Communities that
international cooperation requires as a minimum the exchange of data and readily available scientificknowledge between all interested parties.  Under the Revised Guidelines, the United States wouldadmit Malaysian shrimp to the United States mark et provided that Malaysia shows, on the basis of
relevant data, that either its turtle conservation programme is "comparable in effectiveness" to the
conservation method chosen by the United States or, in the alternative, that such conservationmethods are unnecessary under the conditions prevailing in the waters in which Malaysia's trawlersare operating.  The United States is thus apparent ly seeking Malaysia's participation in international
cooperation in the form of an exchange of available data.
56. The application of the new measure has become more flexible in comparison with the
application of the original measure, and this is the basis for the Panel's finding that the contestedUnited States measure is currently not in conflict with the prohibition of "unjustifiable discrimination"under the chapeau of Article XX of the GATT 1994.
57. With respect to the  Turtle Island   case, the European Communities submits that the
Panel correctly concluded that it was not for it to second-guess the outcome of a domestic dispute onthe correct interpretation of a United States statute where a certain interpretation had been chosen by adomestic court, and that interpretation was challenged by the United States administration on appealin the domestic courts.
58. The European Communities contends that it flow s from the findings of the Panel that the
ruling of the domestic court did not oblige the United States to violate its WTO obligations under thecircumstances of the present case, particularly because the ruling was not final and because requestsfor interim relief were rejected.  This appears to be a correct reading of the situation under the
domestic law of the United States.  In particular, the Revised Guidelines continue to be fully applied
and therefore represent the situation that prevails under United States law.WT/DS58/AB/RW
Page 16
59. In conclusion, the European Communities reiterates its position before the Panel that the
complaint by Malaysia in this case is somewhat premature.  Malaysia has not yet applied forcertification.  It is, therefore, not yet clear how the contested legislation would apply to imports ofshrimp and shrimp products from Malaysia.
3. Hong Kong, China
(a) Terms of Reference
60. Hong Kong, China recalls that in its submission to the Panel, it expressed the view that the
issue before a panel acting pursuant to Article 21.5 of the DSU is whether a new measure is in itself
consistent with the  WTO Agreement , particularly with the specific provisions with which the original
panel or Appellate Body found the original measure inconsistent.
61. In the view of Hong Kong, China, panels should  limit their review to the new measure, that is
the measure adopted after the original panel (or the Appellate Body, as the case may be) haspronounced on the WTO-inconsistency;  examine the new measure's consistency with theWTO Agreement ;  and further, examine to what extent the WTO Member has adequately implemented
the recommendations and rulings of the original panel or the Appellate Body in adopting the newmeasure.
62. With respect to the judgment of the CIT in the  Turtle Island  case, Hong Kong, China, notes
that in the absence of a clear mandate given to international adjudicating bodies, they commonlyinterpret only international law and treat domestic law, whenever warranted, as a factual matter.  Thesame approach seemed to have been adopted by the Panel in the present case.  Accordingly,Hong Kong, China, is of the view that the Panel was not called upon to speculate on the results of the
appeal of the CIT judgment and make a ruling on that basis.  Further, Hong Kong, China is mindfulthat the CIT decision is under appeal and it could be upheld by the highest domestic United Statescourt.
4. India
(a) Terms of Reference
63. India submits that, as the measures taken to comply with the recommendations and rulings of
the DSB are, by definition, new and different measures, it is possible that the new implementingmeasures could be inconsistent with provisions of WTO covered agreements that were not examined
by the original panel.  Therefore, a panel "established" under Article 21.5 of the DSU would have toWT/DS58/AB/RW
Page 17
address a new and different factual and legal situation.  India, therefore, agrees with Malaysia that a
correct reading of Article 21.5 of the DSU required the Panel to examine the alleged inconsistencyalso with regard to WTO provisions that were no t relevant for the resolution of the dispute in the
original proceedings.
64. With respect to the Turtle Island  case, India agrees with Malaysia that the Panel erroneously
refrained from examining municipal law by treating it as a fact.  In order to evaluate the WTO-consistency of municipal law, the interpretation given by a domestic court is of prime importance.India also concurs with Malaysia that the United States bears responsibility for the actions of allbranches of its government, including the judiciary.  The CIT is a judicial organ of the United States.Its interpretation that Section 609 did not permit the import of TED-caught shrimp from non-certifiedcountries should be treated as an authoritative interpretation of United States law.  In the light of theAppellate Body's finding in  United States – Shrimp ,  the Panel should have concluded that
Section 609 was inconsistent with the chapeau of Article XX of the GATT 1994.
5. Japan
(a) The Chapeau of Article XX of the GATT 1994
65. Japan is of the view that as the provisions in Article XX of the GATT 1994 are "exceptions"
to the basic principles of the GATT 1994, they should be applied in a strict manner.  This applies
especially when a unilateral measure is claimed to be justified under this Article.
66. Although Japan agrees with most of the conclusions reached by the Panel, it is Japan's view
that the Panel Report does not describe in detail the reasoning or process by which the Panel reachedthose conclusions.  Considering the importance a ttached to the requirements of the chapeau of
Article XX as a tool for prevention of abuse, the chapeau of Article XX must be applied in a mannerthat fully accounts for the strict standard required of the "General Exceptions" under Article XX.
67. Malaysia's argument that negotiations are not alternative actions for the United States to
rectify and address the problem of "arbitrary and unjustifiable discrimination" is based on an incorrect
reading of the original Appellate Body Report.  As the lack of serious good faith negotiation was one
of the reasons for the Appellate Body finding of "arbitrary or unjustifiable discrimination", it seemslogical to assume that by engaging in sufficiently "serious good faith" negotiations and meeting otherrequirements, the United States has addressed the "arbitrary or unjustifiable discrimination".   Thus,Japan agrees with the Panel's finding that the United States was not under the obligation to concludean agreement for the protection and conservation of sea turtles before taking the measure.WT/DS58/AB/RW
Page 18
68. Japan submits however, that as the notion of "serious" and "good faith" is subjective in
nature, a more objective test, such as a common recognition by other negotiating countries on thenecessity of the measure in question, may be needed in addition to the criterion of "serious good faith
efforts".  Japan considers that the Panel should have included explicitly in its Report such a test of
support for, or recognition of, the measure in question by other negotiating countries as a part of the
negotiation requirement.
6. Mexico
(a) Terms of Reference
69. Mexico agrees with Malaysia that the terms of reference of a panel "established" pursuant to
Article 21.5 of the DSU are to examine whether the measures taken to comply with therecommendations and rulings are consistent with the covered agreements, rather than with its ownrecommendations and rulings.
70. Mexico submits that the Panel in this case should have paid particular attention to the
question whether the United States measure could be justified under Article XX of the GATT 1994because it was not applied in a manner that would constitute a means of "arbitrary or unjustifiablediscrimination" between countries where the same conditions prevail, or a disguised restriction on
international trade.  Mexico considers that the Pane l should also have paid greater attention to the
legal provisions themselves rather than to the Report of the Appellate Body which considered the
original measure.  In Mexico's view, it is not valid to argue that a WTO Member is authorized toadopt measures that would otherwise be inconsistent with Article XX of the GATT 1994, basing itselfon an interpretation of Article XX limited to the circumstances and reasoning in a previous disputesettlement case.
7. Thailand
(a) Terms of Reference
71. Thailand is of the view that, in accordance with Article 21.5 of the DSU, the Panel was bound
to evaluate the consistency of the "measures take n to comply" with the covered agreement concerned,
which in the present case is the GATT 1994.  Thailand agrees with the Panel that this was to be donein the light of the evaluation of the consistency of the original measure with a covered agreementundertaken by the original panel and subsequently by the Appellate Body.WT/DS58/AB/RW
Page 19
72. However, Thailand's view differs from that of the Panel with respect to the scope of the
"measures taken to comply" by the United States.  Thailand disagrees with the approach of the Panelof examining only the consistency with the GATT 1994 of the Revised Guidelines, and disregardingSection 609.
73. Thailand submits that had the Panel examined the consistency of Section 609 as part of the
United States implementing measure, the Panel would have found that, with regard to the import ofTED-caught shrimp from non-certified countries, Section 609 is inconsistent with the chapeau ofArticle XX of GATT 1994, read in the light of the Appellate Body's finding in  United States –
Shrimp .  To examine the consistency of Section 609 in this regard, had the Panel decided to do so, it
would be necessary for the Panel to "seek a detailed understanding" of the legislation.  As it is not forthe Panel to interpret Section 609 itself, such understanding must be based on an authoritativeinterpretation of the legislation under the United States domestic legal system, at least in cases whereauthoritative interpretation is available.
74. Thailand argues that the fact that the Revised Guidelines have not been modified following
the CIT judgment does not remove the current inconsistency of Section 609 with the GATT 1994.  Abreach of a treaty obligation does not necessarily involve an act of the executive branch.  It can alsoinvolve an act of the legislature or the judiciary, or, as in this case, both of these branches ofgovernment.
III. Preliminary Procedural Matter
75. On 13 August 2001, we received a brief from the American Humane Society and Humane
Society International (the "Humane Society brief").  This brief was also attached as an exhibit to the
appellee's submission filed by the United States in this appeal.
76. As we have previously stated in our Report in  United States – Import Prohibition of Certain
Shrimp and Shrimp Products  ("United States – Shrimp "), attaching a brief or other material to the
submission of either an appellant or an appellee, no matter how or where such material may haveoriginated, renders that material at least  prima facie   an integral part of that participant's submission.
24
In that Report, we stated further that it is for a pa rticipant in an appeal to determine for itself what to
include in its submission.25
                                                     
24Appellate Body Report, WT/DS58/AB/R, adopted 6 November 1998, para. 89.
25Ibid.WT/DS58/AB/RW
Page 20
77. At the oral hearing in this appeal, held on 4 September 2001, we asked the United States to
clarify the extent to which it adopted the arguments set out in the Humane Society brief.  TheUnited States stated:  "[t]hose are the independent views of that organization.  We adopt them to theextent they are the same as ours but otherwise they are their independent views.  We submit them for
your consideration but not like our arguments where, for example, the panel is expected to address
each one."  Accordingly, we focus our attention on the legal arguments in the appellee's submission ofthe United States.
78. On 20 August 2001, we received a brief from Professor Robert Howse, a professor of
international trade law at the University of Michigan Law School in Ann Arbor, Michigan, in theUnited States.  In rendering our decision in this appeal, we have not found it necessary to take intoaccount the brief submitted by Professor Howse.
IV. Issues Raised in this Appeal
79. The measure at issue in this dispute consists of three elements:  Section 609 of the
United States Public Law 101-162 ("Section 609");  the Revised Guidelines for the Implementation of
Section 609 of Public Law 101-162 Relating to the Protection of Sea Turtles in Shrimp Trawl Fishing
Operations (the "Revised Guidelines")
26;  and the application of both Section 609 and the Revised
Guidelines in  the practice of the United States.  Both the United States and Malaysia agree on thisdefinition of the measure.
27  So does the Panel.28  So do we.
                                                     
26United 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.
27In 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 theirapplication.
28The 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 (hereafterthe "Revised Guidelines"), as well as of any practice under those RevisedGuidelines.
(Panel Report, footnote 154 to para. 5.1)WT/DS58/AB/RW
Page 21
80. With respect to this measure, the following issues are raised in this appeal:
(a) whether the Panel correctly fulfilled its mandate under Article 21.5 of the DSU of
examining the consistency with the relevant provisions of the GATT 1994 of theUnited States measure that was taken to comply with the recommendations and
rulings of the DSB in  United States – Shrimp ;  and
(b) whether the Panel erred in finding that the measure at issue is now applied in a
manner that no longer constitutes a means of "arbitrary or unjustifiable discriminationbetween countries where the same conditions prevail" and is, therefore, within thescope of measures permitted under Article XX of the GATT 1994.
29
81. With respect to the measure at issue in this di spute, the United States has not appealed the
conclusion of the Panel that the measure violates Article XI:1 of the GATT 1994.30  Thus, we do not
address that issue in this appeal.
82. Malaysia has not appealed the conclusion of the Panel that Section 609 is provisionally
justified under subparagraph (g) of Article XX of the GATT 1994.31  Also, Malaysia confirmed at the
oral hearing in this appeal that it has also not appealed the conclusion of the Panel that the measure atissue is not applied in a manner that constitutes "a disguised restriction on international trade" underthe chapeau of Article XX of the GATT 1994.
32  Thus, we do not address those issues in this appeal.
V. Terms of Reference
83. The first issue raised by Malaysia in this ap peal is whether the Panel properly examined the
United States measure taken to comply with the recommendations and rulings of the DSB in
United States – Shrimp .  Malaysia argues that the Panel improperly limited its analysis to the
recommendations and rulings of the DSB, and thus failed to fulfill its mandate under Article 21.5 ofthe DSU because it did not examine the consistency of the United States implementing measure with
                                                     
29 Panel Report, para. 5.137.
30Ibid. , para. 5.23.
31Ibid. , para. 5.42.
32The 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 Panelwith respect to whether the United States measure was applied in a manner that constitutes "a disguisedrestriction on international trade".  We asked Malaysia to confirm that it was not appealing those findings.Malaysia did so.WT/DS58/AB/RW
Page 22
the relevant provisions of the GATT 1994.  Malaysia argues as well that the Panel erroneously based
its analysis entirely on our Report in  United States –  Shrimp .
84. Malaysia's appeal on this point goes to the heart of what a panel is required to do in
proceedings under Article 21.5 of the DSU, which states, in pertinent part:
Where there is disagreement as to the existence or consistency with a
covered agreement of measures taken to comply with the
recommendations and rulings such dispute shall be decided through
recourse to these dispute settlement procedures, including wherever
possible resort to the original panel.
85. In Canada – Measures Affecting the Export of Civilian Aircraft – Recourse by Brazil to
Article 21.5 of the DSU  ("Canada – Aircraft (21.5) "),  we discussed one aspect of a panel's task under
Article 21.5 of the DSU.  In that case, the Panel declined to examine an argument by Brazil on theground that the argument "did not form part" of the reasoning of the original panel and was "notrelevant to the present dispute, which concerns the issue of whether or not Canada had implementedthe DSB recommendation".
33  We disagreed with that ruling, and stated there that:
It follows then that the task of the Article 21.5 Panel in this case is, in
fact, to determine whether the new measure – the revised TPC
programme – is consistent with Article 3.1(a) of the  SCM Agreement .
Accordingly, in carrying out its review under Article 21.5 of the DSU,
a panel is not confined to examining the "measures taken to comply"
from the perspective of the claims, arguments and factual
circumstances that related to the measure that was the subject of the
original proceedings.  Although these may have some relevance in
proceedings under Article 21.5 of the DSU, Article 21.5 proceedingsinvolve, in principle, not the original measure, but rather a new and
different measure which was not before the original panel. . . . 
34
                                                     
33Appellate Body Report, WT/DS70/AB/RW, adopted 4 August 2000, para. 39.
34Ibid., paras. 40-41.WT/DS58/AB/RW
Page 23
We stated further that:
Indeed, the utility of the review envisaged under Article 21.5 of the
DSU would be seriously undermined if a panel were restricted toexamining the new measure from the perspective of the claims,
arguments and factual circumstances that related to the original
measure, because an Article 21.5 panel would then be unable to
examine fully the "consistency with a covered agreement of the
measures taken to comply", as required by Article 21.5 of the DSU.
35
86. As we ruled in our Report in  Canada – Aircraft (21.5 ), panel proceedings pursuant to
Article 21.5 of the DSU involve, in principle, not the original measure, but a new and differentmeasure that was not before the original panel.  Therefore, "in carrying out its review under Article
21.5 of the DSU, a panel is not confined to exam ining the 'measure[] taken to comply' from the
perspective of the claims, arguments and factual circumstances that related to the measure that wasthe subject of the original proceedings."
36
87. When the issue concerns the consistency of a new measure "taken to comply"37, the task of a
panel in a matter referred to it by the DSB for an Article 21.5 proceeding is to consider that newmeasure in its totality.  The fulfilment of this task requires that a panel consider both the measureitself and the measure's application.  As the title of Article 21 makes clear, the task of  panels underArticle 21.5 forms part of the process of the  " Surveillance of Implementation  of the
Recommendations and Rulings " of the DSB.  Toward that end, the task of a panel under Article 21.5
is to examine the "consistency with a covered ag reement of measures taken to comply with the
recommendations and rulings" of the DSB.  That task is circumscribed by the specific claims made bythe complainant when the matter is referred by the DSB for an Article 21.5 proceeding.  It is not partof the task of a panel under Article 21.5 to address a claim that has not been made.
                                                     
35Appellate Body Report, WT/DS70/AB/RW, adopted 4 August 2000, para. 41.
36Ibid., para. 41.
37As opposed to a debate on the "existence … of  measures taken to comply", which is not at issue here.WT/DS58/AB/RW
Page 24
88. Malaysia relies in this appeal on our ruling in  Canada – Aircraft (21.5).   We understand
Malaysia to argue, based in part on our ruling in  Canada – Aircraft (21.5),  that the Panel in this case
had a duty to review the  totality  of  the United States measure, and to assess it for its consistency with
the relevant provisions of the GATT 1994.  That is indeed a panel's task under Article 21.5 of the
DSU.  Yet, as we have said, it is not part of a panel's task to go beyond the particular claims that have
been made with respect to the consistency of a new measure with a covered agreement when a matteris referred to it by the DSB for an Article 21.5 proceeding.  Thus, it would not have been appropriatein this case for the Panel to address a claim that was  not  made by Malaysia when requesting that this
matter be referred by the DSB for an Article 21.5 proceeding.
89. With respect to a claim that  has been made when a matter is referred by the DSB for an
Article 21.5 proceeding, Malaysia seems to suggest as well that a panel must re-examine, for WTO-consistency, even those aspects of a new measure that were part of a previous measure that was thesubject of a dispute, and were found by the Appellate Body to be  WTO – consistent  in that dispute,
and that remain unchanged as part of the new measure.
90. In considering this argument, we examine what th e Panel did in this case in fulfilling its task
under the DSU.  As we have said, the Panel was required to review the new measure in its totality andin its application  when examining the matter referred by the DSB for the Article 21.5 proceeding.  Inthis case, the question whether it did or did not fulfil this requirement arises from the treatment by thePanel of a particular part of the new measure that was also part of the original measure in the original
proceedings ⎯ Section 609.
91. Section 609 ⎯  a United States statute enacted by the United States Congress ⎯  is a
common aspect of both the original measure at issue in the previous case and appeal, and the new
measure at issue in this case and appeal.  As Section 609 is part of the new measure, it is not immunefrom scrutiny under Article 21.5.  However, it will be recalled that, in the previous case, we found that
Section 609 was entitled to "provisional justification" under subparagraph (g) of Article XX of the
GATT 1994.  It will be recalled as well that, in the previous case, the deficiencies we found in the application  of the original measure by the United States that denied that original measure the benefit
of the exception provided by Article XX of the GATT 1994 were unrelated to Section 609 itself.Those deficiencies related to the original guidelines that were promulgated by the United StatesDepartment of State for the purpose of implementing Section 609, and to the practice of theUnited States in applying those original guidelines to WTO Members.WT/DS58/AB/RW
Page 25
92. In its analysis of the consistency of Section 609 in this new case, the Panel stated that:
The Panel considers that two questions have to be addressed in order
to determine whether the implementing measure meets therequirements of paragraph (g) of Article XX.  First, the Panel notes
that the Appellate Body found that Section 609 was "provisionally
justified" under Article XX(g).  We understand this to mean that, in
the process of determining whether Section 609 was justified under
Article XX, the Appellate Body concluded that Section 609 satisfiedthe first tier of the analysis defined in its report on United States –
Gasoline , i.e. the characterization  of the measure under Article
XX(g).  This implies that, as long as the implementing measure before
us is identical to the measure examined by the Appellate Body in
relation to paragraph (g), we should not reach a different conclusionfrom the Appellate Body.
38  (footnote omitted)
The Panel went on to conclude that:
… the United States did not amend Section 609, whereas it has issued
revised implementing guidelines. We therefore conclude that since
Section 609 as such has not been modified, the findings of the
Appellate Body regarding paragraph (g) remain valid and the
consistency of Section 609 as such with the requirements of paragraph
(g) also remains valid, to the extent that the Revised Guidelines do notmodify the interpretation to be given to Section 609 in that respect.
We have no evidence that the Revised Guidelines have modified in
any way the meaning of Section 609 vis-à-vis  the requirements of
paragraph (g), as interpreted by the Appellate Body.
39
93. We agree.  It is not disputed that the wording of Section 609 has not been changed since the
first case.  The Congress of the United States has not amended the statute.  In addition, the meaning ofSection 609 has not been changed by the decision of the United States Court of International Trade(the "CIT") in  Turtle Island Restoration Network, et al. v. Robert L. Mallett, et al.  (the " Turtle Island
case").
40  
94. The CIT ruling in the  Turtle Island  case addressed the Revised Guidelines:  that ruling made
no change to the interpretation of Section 609.  Moreover, as stated by the Panel, the ruling in the
Turtle Island  case is declaratory:  the CIT has not ordered the United States Department of State to
modify either the content or the interpretation of the Revised Guidelines;  in the legal interpretation ofthe United States authorities entrusted with enfo rcing them, the Revised Guidelines remain the
                                                     
38Panel Report, para. 5.39.
39Panel Report., para. 5.41.
40110 Fed. Supp. 2d 1005 (CIT, 2000).  See, Panel Report, para. 5.109.WT/DS58/AB/RW
Page 26
same.41  Rightly, when examining the United States meas ure, the Panel took into account the status of
municipal law at the time.  In particular, the Panel took note of the fact that the CIT ruling in theTurtle Island  case has  not altered the content of the Revised Guidelines, and has not prevented the
United States government from authorizing the importation of TED-caught shrimp from uncertified
countries.  In response to our questions at the oral hearing, the United States confirmed that the
Department of State has received no order from the CIT to change its practice, and, therefore, theDepartment of State continues to apply the Revised Guidelines as before.
42  Malaysia has not shown
otherwise.
95. There is no way of knowing or predicting when  or how that particular legal proceeding will
conclude in the United States.   The  Turtle Island  case has been appealed and could conceivably go
as far as the Supreme Court of the United States.43  It would have been an exercise in speculation on
the part of the Panel to predict either when or how that case may be concluded, or to assume that
injunctive relief ultimately would be granted and that the United States Court of Appeals or the
Supreme Court of the United States eventually woul d compel the Department of State to modify the
Revised Guidelines.  The Panel was correct not to indulge in such speculation, which would havebeen contrary to the duty of the Panel, under Article 11 of the DSU, to make "an objective assessmentof the matter … including an objective assessment of the facts of the case".
96. As we see it, then, the Panel properly examined Section 609 as part of its examination of the
totality of the new measure, correctly found that Section 609 had not been changed since the originalproceedings, and rightly concluded that our ruling in  United States – Shrimp  with respect to the
consistency of Section 609, therefore, still stands.
97. We wish to recall that panel proceedings under Article 21.5 of the DSU are, as the title of
Article 21 states, part of the process of the " Surveillance of Implementation of Recommendations and
Rulings " of the DSB.  This includes Appellate Body Reports.  To be sure, the right of WTO Members
to have recourse to the DSU, including under Article 21.5, must be respected.  Even so, it must alsobe kept in mind that Article 17.14 of the DSU provides not only that Reports of the Appellate Body                                                     
41Panel Report, para. 5.109.
42The 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)
43Panel Report, para. 5.109.WT/DS58/AB/RW
Page 27
"shall be" adopted by the DSB, by consensus, but also that such Reports "shall be … unconditionally
accepted by the parties to the dispute. …"  Thus, Appellate Body Reports that are adopted by the DSBare, as Article 17.14 provides, "… unconditionally accepted by the parties to the dispute", and,therefore, must be treated by the parties to a particul ar dispute as a final resolution to that dispute.  In
this regard, we recall, too, that Article 3.3 of the DSU states that the "prompt settlement" of disputes
"is essential to the effective functioning of the WTO".
98. Therefore, so far as the examination of the measure at issue in this appeal is concerned, the
task of the Panel with respect to Section 609, as part of that new measure, was limited to examiningits  application.   More specifically, the task of the Panel as it related to Section 609 was to decide
whether Section 609 has been  applied   by the United States in a way that constitutes "arbitrary or
unjustifiable discrimination between countries where the same conditions prevail" in violation of thechapeau of Article XX of the GATT 1994.  Thus, given the structure of the new measure, the task ofthe Panel was to determine whether Section 609 has been  applied   by the United States, through the
Revised Guidelines, either on their face, or in thei r application, in a manner that constitutes "arbitrary
or unjustifiable discrimination".
99. This is precisely what the Panel did in this case.  Therefore, we  consider  what the Panel
did to be an appropriate fulfilment of its task under the DSU.
100. Malaysia argues with respect to the terms of reference that the Panel confined itself
inappropriately to an examination of whether the new measure complied with the rulings and
recommendations of the DSB, and, more specifically, with the rulings of the Appellate Body thatwere adopted by the DSB  in the previous case relating to the original measure.  In support of this
argument, Malaysia quotes various selected passages from the Panel Report.
44
                                                     
44Malaysia's appellant's submission, para. 3.2.  Mala ysia refers to footnote 211 of paragraph 5.66 and
paragraphs 5.116, 5.120, 5.125 and 5.134 of the Panel Report.WT/DS58/AB/RW
Page 28
101. In our view, a reading of the Panel Report as a whole does not provide support for Malaysia's
contention.  Indeed, the Panel appears to have done precisely the opposite of what Malaysia asserts.For example, we note that, in identifying its terms of reference, the Panel explicitly quoted the terms
of Article 21.5 of the DSU
 45 as well as our Report in  Canada – Aircraft (21.5) . 46
102. The Panel then stated:
The terms of reference of this Panel do not differ from the standard
terms of reference applied in other Article 21.5 cases.  In light of the
reasoning of the Appellate Body mentioned above, 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 madebefore the Original Panel and in the Appellate Body proceedings
provided , as  recalled by the panel on Australia – Measures Affecting
Importation of Salmon – Recourse by Canada to Article 21.5 of the
DSU,  that the claims are identified in the request for referring the
matter to a panel under Article 21.5 of the DSU.
47  (footnotes omitted)
                                                     
45Panel Report, para. 5.7.
46Ibid., para. 5.8. After quoting our Report in  Canada – Aircraft (21.5) , the Panel concluded that:
In light of the reasoning of the Appellate Body [in Canada – Aircraft (21.5)] ,
the Panel considers that it is fully entitled to address all the claims ofMalaysia 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 in  Canada
– Aircraft (21.5) .  As the United States submits:   "[t]he issue in Canada Aircraft was whether the Article 21.5
Panel’s review was limited to issues considered in th e original panel and Appellate Body proceedings, and the
Appellate Body found that the DSU provides no such limitation". (footnote omitted) (United States appellee'ssubmission, para. 11)  With respect to this case, the United States notes:  "[t]he Panel's report makes nolimitations 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 notdecline to consider an argument on its merits on the gro und that such argument had not been raised before the
original panel or the Appellate Body.
47Panel Report, para. 5.9.WT/DS58/AB/RW
Page 29
103. Furthermore, in its analysis, the Panel examined Malaysia's claim that the new measure taken
by the United States continued to violate Article XI:1 of the GATT 1994, and stated as follows:
The Panel notes that the elements of the original measure found to be
incompatible with Article XI:1 in the Original Panel Report are stillpart of the implementing measure, i.e. Section 609 as currently
applied by the United States.  In particular, the United States
continues to apply an import prohibition on shrimp and shrimp
products harvested in a manner determined to be harmful to sea
turtles.  We note that the United States does not contest the fact that it
applies such a prohibition of import.  We consider that the prohibition
at issue falls within the "prohibitions or restrictions, other than duties,taxes or other charges" maintained by a Member on the importation of
a product from another Member, in contravention of Article XI:1.
The Panel therefore concludes that the measure taken by the
United States to comply with the recommendations and rulings of theDSB in this case  violates Article XI:1 of the GATT 1994 .
 48 (emphasis
added)
104. The Panel then examined the provisional justification under Article XX(g) of the GATT 1994
of Section 609, which it had correctly found to be unchanged, in the following terms:
As a result, when considering the arguments of the United States, we
shall first determine the consistency of the implementing measure
under paragraph (g) of Article XX.  If we find the implementing
measure to be "provisionally justified" under paragraph (g), we shall
proceed to determine whether it is applied in conformity with the
chapeau of Article XX .49 (emphasis added)
…
We therefore conclude that the implementing measure is provisionally
justified under paragraph (g) of Article XX .  We proceed with the
second tier of the method applied by the Appellate Body in this case,
i.e. the "further appraisal of the same measure  under the introductory
clause of Article XX."50 (emphasis added, footnote omitted)
105. This analysis shows clearly that the Panel properly understood the scope of its mandate.
Furthermore, the Panel's examination of whether the measure applied by the United States constitutesa "disguised restriction on international trade" under the chapeau of Article XX of the GATT 1994demonstrates that the Panel understood very well the scope of its mandate.  The Panel stated:
                                                     
48Panel Report, paras. 5.22-5.23.
49Ibid., para. 5.28.
50Ibid., para. 5.42.WT/DS58/AB/RW
Page 30
The Panel notes that it is instructed by Article 21.5 of the DSU to
review "the existence or consistency with a covered agreement of
measures taken to comply with the recommendations and rulings" of
the DSB. The fact that the Appellate Body did not have to make a
finding that the original measure was a disguised restriction on tradedoes not mean that the measure adopted to implement the DSB
recommendations and rulings is not a disguised restriction on trade.
The Panel also recalls that, as the party invoking Article XX, the
United States bears the burden of proving that its implementing
measure meets all the relevant requirements of the chapeau. This
implies that the United States make a prima facie  case that the
implementing measure is not a disguised restriction on trade.
51
106. Thus, the Panel examined the measure in the light of the relevant provisions of the
GATT 1994, and, in doing so, made numerous references both to whether a violation of the GATT1994 had occurred and to whether such a violation was nonetheless justified under Article XX.Accordingly, in reading the Panel Report as a whol e, we find no support for Malaysia's argument that
the Panel examined the new measure applied by the United States  only  in the light of the
recommendations and rulings of the DSB.
107. Malaysia also objects to the frequent references made by the Panel to our reasoning in our
Report in  United States – Shrimp .  The reasoning in our Report in United States – Shrimp  on which
the Panel relied was not dicta ;  it was essential to our ruling.  The Panel was right to use it, and right
to rely on it.  Nor are we surprised that the Panel made frequent references to our Report inUnited States – Shrimp .  Indeed, we would have expected the Panel to do so.  The Panel had,
necessarily, to consider our views on this subject, as we had overruled certain aspects of the findings
of the original panel on this issue and, more impor tant, had provided interpretative guidance for future
panels, such as the Panel in this case.
108. In this respect, we note that in our Report in  Japan – Taxes on Alcoholic Beverages , we
stated that:
Adopted panel reports are an important part of the GATT acquis .
They are often considered by subsequent panels.  They create
legitimate expectations among WTO Members, and, therefore, should
be taken into account where they are relevant to any dispute.
52
   
109. This reasoning applies to adopted Appellate Body Reports as well.  Thus, in taking into
account the reasoning in an adopted Appellate Body Report ⎯ a Report, moreover, that was directly
                                                     
51Panel Report, para. 5.138.WT/DS58/AB/RW
Page 31
relevant  to the Panel's disposition of the issues before it ⎯ the Panel did not err.  The Panel was
correct in using our findings as a tool for its own reasoning.  Further, we see no indication that, in
doing so, the Panel limited itself merely to exam ining the new measure from the perspective of the
recommendations and rulings of the DSB.
110. We find, therefore, that the Panel correctly fulfilled its mandate under Article 21.5 of the
DSU of examining the consistency, with the relevant provisions of the GATT 1994, of theUnited States measure taken to comply with the recommendations and rulings of the DSB inUnited States – Shrimp .
VI. The Chapeau of Article XX of the GATT 1994
111. The second issue raised in this appeal is whether the Panel erred in finding that the new
measure at issue is applied in a manner that no longer constitutes a means of "arbitrary or unjustifiablediscrimination between countries where the same conditions prevail" and is, therefore, within thescope of measures permitted under Article XX of the GATT 1994.
53
112. In its Notice of Appeal, Malaysia appeals the finding of the Panel that "Section 609 of Public
Law 101-162, as implemented by the Revised Guidelines of 8 July 1999 and as applied so far by the[United States] authorities, is justified under Article XX of the GATT 1994 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."
54  In its appellant's submission, Malaysia  has put forward
six points of disagreement with respect to the reasoning and findings of the Panel that lead Malaysiato conclude that, despite the changes made by the United States to the original measure, elements of
"arbitrary or unjustifiable discrimination" still remain in the manner in which the new measure isapplied by the United States.
                                                                                                                                                                    
52Appellate Body Report, (" Japan – Alcoholic Beverages "), WT/DS8/AB/R, WT/DS10/AB/R,
WT/DS11/AB/R, adopted 1 November 1996, DSR 1996:I, 97, at 108.
53Panel Report, para. 5.137.
54Ibid., para. 6.1.WT/DS58/AB/RW
Page 32
113. Malaysia argues that:
⎯ the Panel erred in interpreting our previous ruling in  United States – Shrimp  as
imposing upon the United States an obligation to  negotiate  rather than an obligation
to  conclude  an international agreement 55;
⎯ the Panel's finding results in "the absurd situation where any WTO Member would be
able to offer to negotiate in good faith on an agreement incorporating its unilaterally
defined standards before claiming that its measure is justified under Article XX of the
GATT 1994 and in the event of failure to conclude an agreement, claim that themeasure applying the unilateral standards could not constitute unjustifiablediscrimination"
56;
⎯ the Panel erred in concluding that the Inter-American Convention can reasonably be
regarded as a "benchmark" of what can be achieved through multilateral negotiations
in the field of protection and conservation57;
⎯ the Panel misconstrued the usage of the term "measures comparable in effectiveness
to United States measures" by the Appellate Body to mean that the Appellate Body
accepted the legitimacy of such "comparable measures"58;
⎯ the Panel erred in concluding that the Revised Guidelines are sufficiently flexible,
even though the Revised Guidelines do not provide explicitly for the particular
conditions prevailing in Malaysia 59;   and
⎯ the Panel erred in its treatment of the CIT ruling in the  Turtle Island  case and, thus,
in its conclusion about the legal validity of those portions of the Revised Guidelines
that permit the importation of TED-caught shrimp from non-certified harvesting
countries.60
                                                     
55Malaysia's appellant's submission, para 3.10(b)(i).
56Executive summary of Malaysia's appellant's submission, para. 2(b)(ii).
57Malaysia's appellant's submission, para 3.13.
58Ibid., paras. 3.17-3.18.  See also , Executive summary of Malaysia's appellant's submission,
para. 2(iv);
59Malaysia's appellant's submission, paras. 3.20-3.21.
60Ibid., paras. 3.22-3.25.WT/DS58/AB/RW
Page 33
114. Malaysia's first three arguments relate to the nature and extent of the duty of the United States
to pursue international cooperation in protecting and conserving endangered sea turtles.  Malaysia'slast three arguments relate to the flexibility of the Revised Guidelines.  Our analysis will address eachof these arguments made by Malaysia.
A. The Nature and the Extent of the Duty of the United States to Pursue International
Cooperation in the Protection and Conservation of Sea Turtles
115. Before the Panel, Malaysia asserted that the United States should have negotiated and
concluded  an international agreement on the protection and conservation of sea turtles before
imposing an import prohibition.  Malaysia argued that "by continuing to apply a unilateral measureafter the end of the reasonable period of time pending the conclusion of an international agreement,the United States failed to comply with its obligations under the GATT 1994".
61  The United States
replied that it had in fact made serious, good faith efforts to negotiate and  conclude  a multilateral sea
turtle conservation agreement that would include both Malaysia and the United States, and that theseefforts, as detailed and documented before the Pane l, should, in view of our previous ruling, be seen
as sufficient to meet the requirements of the chapeau of Article XX.  The Panel found as follows:
… The Panel first recalls that the Appellate Body considered "the
 failure of the United States to engage the appellees , as well as other
Members exporting shrimp to the United States, in serious across-the-
board negotiations with the objective of concluding bilateral or
multilateral agreements  for the protection and conservation of sea
turtles, before  enforcing the import prohibition against the shrimp
exports of those other Members" bears heavily in any appraisal of
justifiable or unjustifiable discrimination within the meaning of the
chapeau of Article XX.  From the terms used, it appears to us that theAppellate Body had in mind a negotiation, not the conclusion of an
agreement.  If the Appellate Body had considered that an agreement
had to be concluded before any measure can be taken by the
United States, it would not have used the terms "with the objective"; it
would have simply stated that an agreement had to be concluded.
…
                                                     
61Panel Report, para. 5.1.WT/DS58/AB/RW
Page 34
We are consequently of the view that the Appellate Body could not
have meant in its findings that the United States had the obligation to
conclude an agreement on the protection and conservation of sea
turtles in order to comply with Article XX.  However, we reach the
conclusion that the United States has an obligation to make seriousgood faith efforts to reach an agreement before resorting to the type of
unilateral measure currently in place. We also consider that those
efforts cannot be a "one-off" exercise.  There must be a continuous
process, including once a unilateral measure has been adopted
pending the conclusion of an agreement.  Indeed, we consider the
reference of the Appellate Body to a number of international
agreements promoting a multilateral solution to the conservationconcerns subject to Section 609 to be evidence that a multilateral,
ideally non-trade restrictive, solution is generally to be preferred when
dealing with those concerns, in particular if it is established that it
constitutes "an alternative course of action reasonably open".
…
We understand the Appellate Body findings as meaning that the
United States has an obligation to make serious good faith efforts to
address the question of the protection and conservation of sea turtles
at the international level.  We are mindful of the potentially subjective
nature of the notion of serious good faith efforts and of how difficultsuch a test may be to apply in reality.
62  (footnotes omitted)
116. Malaysia appeals these findings of the Panel.  According to Malaysia, demonstrating serious,
good faith efforts to  negotiate   an international agreement for the protection and conservation of sea
turtles is not sufficient to meet the requirements of the chapeau of Article XX.63  Malaysia maintains
that the chapeau requires instead the  conclusion   of such an international agreement.  As Malaysia
sees it, the "pertinent observations and comments" that we made in  United States – Shrimp  that could
be construed to suggest otherwise "constitute dicta" in our previous Report.64  On this basis, Malaysia
argues that the Panel used that Report improperly in attempting to justify its reasoning that serious,good faith efforts  alone would  be enough to meet the requirements of the chapeau.
65  F u r t h e r ,
Malaysia submits that the Panel misread our Report with respect to the Inter-American Convention,
and, consequently, did not use that Convention properly in its analysis.66
                                                     
62Panel Report, paras. 5.63, 5.67 and 5.76.
63Malaysia's appellant's submission, para. 3.11.
64Ibid.,  paras. 3.10-3.11.
65Ibid., para. 3.11.
66Ibid., para. 3.13.WT/DS58/AB/RW
Page 35
117. The chapeau of Article XX states:
Subject to the requirement that such measures are not applied in a
manner which would constitute a means of arbitrary or unjustifiablediscrimination between countries where the same conditions prevail,
or a disguised restriction on international trade, nothing in this
Agreement shall be construed to prevent the adoption or enforcement
by any contracting party of measures: …
118. The chapeau of Article XX establishes three standards regarding the  application   of measures
for which justification under Article XX may be sought:  first, there must be no "arbitrary"discrimination between countries where the same conditions prevail;  second, there must be no"unjustifiable" discrimination between countries where the same conditions prevail;  and, third, theremust be no "disguised restriction on international trade".
67  The Panel's findings appealed by Malaysia
concern the first and second of these three standards.68
119. It is clear from the language of the chapeau that these two standards operate to prevent a
Member from applying a measure provisionally justified under a sub-paragraph of Article XX in a
manner that would result in "arbitrary or unjustifiable discrimination".69  In  United States – Shrimp , 
we stated that the measure at issue there resulted in "unjustifiable discrimination", in part because, asapplied, the United States treated WTO Members differently.  The United States had adopted acooperative approach with WTO Members from the Caribbean/Western Atlantic region, with whom ithad concluded a multilateral agreement on the protection and conservation of sea turtles, namelythe Inter-American  Convention.  Yet the United States had not, we found, pursued the negotiation of
such a multilateral agreement with other exporti ng Members, including Malaysia and the other
complaining WTO Members in that case.
                                                     
67Appellate Body Report, United States – Shrimp , supra , footnote 24, para. 150; Appellate Body
Report,  United States – Standards for Reformulated and Conventional Gasoline   ("United States – Gasoline "),
WT/DS2/AB/R, adopted 20 May 1996, DSR 1996:I, 3, at 21-22.
68The Panel also made findings regarding disguised restriction on trade but these are not appealed.
Panel Report, paras. 5.138-5.144.
69Appellate Body Report, United States – Shrimp , supra , footnote 24, paras. 156 and 160;  Appellate
Body Report, United States – Gasoline , supra , footnote 67 at 21-22.WT/DS58/AB/RW
Page 36
120. Moreover, we observed there that Section 609, which was part of that original measure and
remains part of the new measure at issue here, calls upon the United States Secretary of State to
"initiate negotiations as soon as possible for the development of bilateral or multilateral agreementswith other nations for the protection and conservation of … sea turtles" and to "initiate negotiations as
soon as possible with all foreign governments which are engaged in commercial fishing operations …
for the purpose of entering into bilateral and multilat eral treaties with such countries to protect such
species of sea turtles."
70  We concluded in that appeal that the United States had failed to comply with
this  statutory requirement in Section 609.
121. As we pointed out there:
Apart from the negotiation of the Inter-American Convention for the
Protection and Conservation of Sea Turtles … which concluded in
1996, the record before the Panel does not indicate any serious,
substantial efforts to carry out these express directions of Congress.71
(footnotes omitted)
We also stated:
Clearly, the United States negotiated seriously with some, but not
with other Members (including the appellees), that export shrimp tothe United States.  The effect is plainly discriminatory and, in our
view, unjustifiable.
72
122. We concluded in  United States – Shrimp  that, to avoid "arbitrary or unjustifiable
discrimination", the United States had to provide all exporting countries "similar opportunities tonegotiate" an international agreement.  Given the specific mandate contained in Section 609, andgiven the decided preference for multilateral approaches voiced by WTO Members and others in theinternational community in various international agreements for the protection and conservation of
endangered sea turtles that were cited in our previous Report, the United States, in our view, would be
expected to make good faith efforts to reach inte rnational agreements that are comparable from one
forum of negotiation to the other.  The negotiations  need not be identical.  Indeed, no two negotiations
                                                     
70Section 609(a).  See also , Appellate Body Report,  United States – Shrimp , supra , footnote 24,
para. 167.
71Appellate Body Report, supra , footnote 24, para. 167.
72Ibid., para. 172.WT/DS58/AB/RW
Page 37
can ever be identical, or lead to identica l results.  Yet the negotiations must be  comparable  in the
sense that comparable efforts are made, comparable resources are invested, and comparable energiesare devoted to securing an international agreement.  So long as such comparable efforts are made, it ismore likely that "arbitrary or unjustifiable discrimination" will be avoided between countries where an
importing Member concludes an agreement with one  group of countries, but fails to do so with
another group of countries.
123. Under the chapeau of Article XX, an importing Member may not treat its trading partners in a
manner that would constitute "arbitrary or unjustifia ble discrimination".  With respect to this measure,
the United States could conceivably respect this obligation, and the conclusion of an internationalagreement might nevertheless not be possible despite the serious, good faith efforts of theUnited States.  Requiring that a multilateral agreement be  concluded  by the United States in order to
avoid "arbitrary or unjustifiable discrimination" in applying  its measure would mean that any countryparty to the negotiations with the United Stat es, whether a WTO Member or not, would have, in
effect, a veto over whether the United States could fulfill its WTO obligations.  Such a requirement
would not be reasonable.  For a variety of reasons, it may be possible to conclude an agreement withone group of countries but not another.  The conclusion of a multilateral agreement requires thecooperation and commitment of many countries.  In  our view, the United States cannot be held tohave engaged in "arbitrary or unjustifiable discrimination" under Article XX solely because oneinternational negotiation  resulted in an agreement while another did not.
124. As we stated in  United States – Shrimp , "the protection and conservation of highly migratory
species of sea turtles … demands concerted and cooperative efforts on the part of the many countries
whose waters are traversed in the course of recurrent sea turtle migrations".
73  Further, the "need for,
and the appropriateness of, such efforts have been recognized in the WTO itself as well as in asignificant number of other international instruments and declarations".
74   For example, Principle 12
of the Rio Declaration on Environment and Devel opment states, in part, that "[e]nvironmental
measures addressing transboundary or global en vironmental problems should, as far as possible, be
based on international consensus".75  Clearly, and "as far as possible", a multilateral approach is
                                                     
73Appellate Body Report, supra , footnote 24, para. 168.
74Ibid.
75Ibid.WT/DS58/AB/RW
Page 38
strongly preferred.  Yet it is one thing to  prefer  a multilateral approach in the application of a
measure that is provisionally justified under one of the subparagraphs of Article XX of theGATT 1994;  it is another to require the conclusion  of a multilateral agreement as a condition of
avoiding "arbitrary or unjustifiable discrimination" under the chapeau of Article XX.  We see, in this
case, no such requirement.
125. Malaysia also disagrees with certain statements made by the Panel with respect to the Inter-
American Convention.  The Panel found that:
With respect to the absence of or insufficient negotiation with some
Members compared with others, the reference of the Appellate Body
to the Inter-American Convention is evidence that the efforts made bythe United States to negotiate with the complainants before imposing
the original measure were largely insufficient.  The Inter-American
Convention was negotiated as a binding agreement and has entered
into force on 2 May 2001.  We conclude that the Inter-American
Convention can reasonably be considered as a benchmark of what canbe achieved through multilateral negotiations in the field of protection
and conservation.  While we agree that factual circumstances may
influence the duration of the process or the end result, we consider
that any effort alleged to be a "serious good faith effort" must be
assessed against the efforts made in relation to the conclusion of the
Inter-American Convention.
76
126. Malaysia maintains that the word "benchmark", as used by the Panel, has the connotation of a
"legal standard", and asserts that nothing in the Appellate Body Report in  United States – Shrimp  
suggests that the Inter-American Convention has the status of a legal standard.77  Malaysia sees a
distinction between a "benchmark", which would have the value of a "legal standard", and an"example", which would not have such a value.
78
127. It should be recalled how we viewed the Inter-American Convention in  United States –
Shrimp .  We stated there:
                                                     
76Panel Report, para. 5.71.
77Malaysia's appellant's submission, para. 3.13.
78Ibid.WT/DS58/AB/RW
Page 39
The Inter-American Convention thus provides convincing
demonstration that an alternative course of action was reasonably
open to the United States for securing the legitimate policy goal of its
measure, a course of action other than the unilateral and non-
consensual procedures of the import prohibition under Section 609.  Itis relevant to observe that an import prohibition is, ordinarily, the
heaviest "weapon" in a Member's armoury of trade measures.  The
record does not, however, show that serious efforts were made by the
United States to negotiate similar agreements with any other country
or group of countries before (and, as far as the record shows, after)
Section 609 was enforced on a wo rld-wide basis on 1 May 1996.
Finally, the record also does not show that the appellant, theUnited States, attempted to have recourse to such international
mechanisms as exist to achieve cooperative efforts to protect and
conserve sea turtles before imposing the import ban.
79
128. Thus, in the previous case, in examining the original measure, we relied on the Inter-
American Convention in two ways.  First, we us ed the Inter-American Convention to show that
"consensual and multilateral procedures are available and feasible for the establishment of
programmes for the conservation of sea turtles."80  In other words, we saw the Inter-American
Convention as evidence that an alternative course of action based on cooperation and consensus wasreasonably open to the United States.  Second, we used the Inter-American Convention to show theexistence of "unjustifiable discrimination".  The Inter-American Convention was the result of serious,good faith efforts to negotiate a regional agreement on the protection and conservation of turtles,including efforts made by the United States.  In the original proceedings, we saw a clear contrastbetween the efforts made by the United States to  conclude the Inter-American Convention and the
absence of serious efforts on the part of the United States to negotiate other similar agreements with
other WTO Members.  We concluded there that such a disparity in efforts to negotiate an international
agreement amounted to "unjustifiable discrimination".
81
129. With this in mind, we examine what the Panel did here.  In its analysis of the Inter-American
Convention in the context of Malaysia's argument on "unjustifiable discrimination", the  Panel reliedon our original Report to state that "the Inter-American Convention is evidence that the efforts madeby the United States to negotiate with the comp lainants before imposing the original measure were
largely insufficient".
82  The Panel went on to say that "the Inter-American Convention can reasonably
                                                     
79Appellate Body Report, supra , footnote 24, para. 171.
80Ibid., para. 170.
81Ibid., para. 172.
82Panel Report, para. 5.71.WT/DS58/AB/RW
Page 40
be considered as a benchmark of what can be achieved through multilateral negotiations in the field of
protection and conservation."83
130. At no time in  United States – Shrimp  did we refer to the Inter-American Convention as a
"benchmark".  The Panel might have chosen another and better word ⎯ perhaps, as suggested by
Malaysia, "example".84  Yet it seems to us that the Panel did all that it should have done with respect
to the Inter-American Convention, and did so consistently with our approach in  United States –
Shrimp .  The Panel compared the efforts of the United States to negotiate the Inter-American
Convention with one group of exporting WTO Members with the efforts made by the United States tonegotiate a similar agreement with another group of exporting WTO Members.  The Panel rightly
used the Inter-American Convention as a factual refe rence in this exercise of comparison.  It was all
the more  relevant to do so given that the In ter-American Convention was the only international
agreement that the Panel could have used in such a comparison.  As we read the Panel Report, it isclear to us that the Panel attached a relative valu e to the Inter-American Convention in making this
comparison, but did not view the Inter-American Co nvention in any way as an absolute standard.
Thus, we disagree with Malaysia's submission that the Panel raised the Inter-American Convention tothe rank of a "legal standard".  The mere use by the Panel of the Inter-American Convention as a
basis for a comparison did not transform the Inter-American Convention into a "legal standard".
Furthermore, although the Panel could have chosen  a more appropriate word than "benchmark" to
express its views, Malaysia is mistaken in equating  the mere use of the word "benchmark", as it was
used by the Panel, with the establishment of a legal standard.
131. The Panel noted that while "factual circumstances may influence the duration of the process
or the end result, … any effort alleged to be a 'serious good faith effort' must be assessed against theefforts made in relation to the conclusion of the Inter-American Convention."
85  Such a comparison is
a central element of the exercise to determine whether there is "unjustifiable discrimination".  ThePanel then analyzed the negotiation process in the Indian Ocean and South-East Asia region todetermine whether the efforts made by the United States in those negotiations were serious, good faithefforts comparable to those made in relation with the Inter-American Convention.  In conducting this
analysis, the Panel referred to the following elements:
                                                     
83Panel Report, para. 5.71.
84Malaysia's appellant's submission, para. 3.13.
85Panel Report, para. 5.71.WT/DS58/AB/RW
Page 41
⎯ A document communicated on 14 October 1998 by the United States Department of
State to a number of countries of the Indian Ocean and the South-East Asia region.
This document contained possible elements of a regional convention on sea turtles inthis region.
86
⎯ The contribution of the United States to a symposium held in Sabah on 15-17
July 1999.  The Sabah Symposium led to the adoption of a Declaration calling for the
negotiation and implementation of a regional agreement throughout the Indian Ocean
and South-East Asia region.87
⎯ The Perth Conference in October 1999, where participating governments, including
the United States, committed themselves to developing an international agreement on
sea turtles for the Indian Ocean and South-East Asia region.88
⎯ The contribution of the United States to the Kuantan round of negotiations,  11-
14 July 2000.  This first round of negotiations towards the conclusion of a regional
agreement resulted in the adoption of the Memorandum of Understanding on theConservation and Management of Marine Turtles and their Habitats of the IndianOcean and South-East Asia (the "South-East Asian MOU").  The Final Act of theKuantan meeting provided that before the South-East Asian MOU can be finalized, aConservation and Management Plan must be  negotiated and annexed to the South-
East Asian MOU.
89  At the time of the Panel proceedings, the Conservation and
Management Plan was still being drafted.90
132. On this basis and, in particular, on the basis of the "contribution of the United States to the
steps that led to the Kuantan meeting and its contribution to the Kuantan meeting itself"91, the Panel
concluded that the United States had made serious, good faith efforts that met the "standard set by theInter-American Convention."
92  In the view of the Panel, whether or not the South-East Asian MOU is
a legally binding document does not affect this comparative assessment because differences in
                                                     
86Panel Report, para. 5.79.
87Ibid.
88Ibid.
89Ibid., para. 5.81.
90Ibid., para. 5.84.
91Ibid., para. 5.82.
92Ibid.WT/DS58/AB/RW
Page 42
"factual circumstances have to be kept in mind".93  Furthermore, the Panel did not consider as decisive
the fact that the final agreement in the Indian Ocean and South-East Asia region, unlike the Inter-American Convention, had not been concluded at the time of the Panel proceedings.  According to thePanel, "at least until the Conservation and Management Plan to be attached to the MOU is completed,
the United States efforts should be judged on the basis of its active participation and its financial
support to the negotiations, as well as on the basis of its previous efforts since 1998, having regard tothe likelihood of a conclusion of the negotiations in the course of 2001." 
94
133. We note that the Panel stated that "any effort alleged to be a 'serious good faith effort' must be
assessed against the efforts made in relation to the conclusion of the Inter-American Convention."95
In our view, in assessing the serious, good faith efforts made by the United States, the Panel did noterr in using the Inter-American Convention as an  example .   In our view, also, the Panel was correct
in proceeding then to an analysis broadly in line with this principle and, ultimately, was correct aswell in concluding that the efforts made by the Unit ed States in the Indian Ocean and South-East Asia
region constitute serious, good faith efforts comparable to those that led to the conclusion of the Inter-
American Convention.  We find no fault with this analysis.
 96
134. In sum, Malaysia is incorrect in its contention that avoiding "arbitrary and unjustifiable
discrimination" under the chapeau of Article XX requires the  conclusion  of an international
agreement on the protection and conservation of sea turtles.  Therefore, we uphold the Panel's findingthat, in view of the serious, good faith efforts made by the United States to negotiate an international
                                                     
93Panel 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.
94Panel Report, para. 5.84.
95Ibid., para. 5.71.
96 We note that a multilateral conference on sea turtle s 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 theIndian Ocean and South-East Asia region constitute serious, good faith efforts comparable to those made inrelation to the Inter-American Convention. The Inter-American Convention, in Article IV.2(h), provides for theuse 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 prac ticable 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 usegear, devices and techniques to minimise incidental capture of marine turtles in fisheries, such as devices thateffectively allow the escape of marine turtles, and spatial and seasonal closures".WT/DS58/AB/RW
Page 43
agreement, "Section 609 is now applied in a manner that no longer constitutes a means of
unjustifiable or arbitrary discrimination, as identified by the Appellate Body in its Report".97
B. The Flexibility of the Revised Guidelines
135. We now turn to Malaysia's arguments relating to the flexibility of the Revised Guidelines.
Malaysia argued before the Panel that the measure at issue results in "arbitrary or unjustifiablediscrimination" because it conditions the importation of  shrimp  into the United States on compliance
by the exporting Members with policies and standards "unilaterally" prescribed by the United States.
98
Malaysia asserted that the United States "unilaterally" imposed its domestic standards on exporters.99
With respect to this argument, the Panel found:
It seems that whereas the Appellate Body found that requiring the
adoption of essentially the same regime constituted arbitrary
discrimination, it accepted - at least implicitly - that a requirement that
the US and foreign programmes be "comparable in effectiveness"would be compatible with the obligations of the United States under
the chapeau of Article XX.  This is because it would "permit a degree
of discretion or flexibility in how the standards for determining
comparability might be applied, in practice, to other countries."  We
therefore conclude that if, in practice , the implementing measure
provides for "comparable effectiveness", the finding of the Appellate
Body in terms of lack of flexibility will have been addressed.
100
(footnote omitted)
136. Malaysia disagrees with the Panel that a measure can meet the requirements of the chapeau of
Article XX if it is flexible enough, both in design and application, to permit certification of an
exporting country with a sea turtle protection and conservation programme "comparable" to that of theUnited States.  According to Malaysia, even if the measure at issue allows certification of countries
                                                     
97Panel 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 a  demandeur   in this field and given its scientific,
diplomatic and financial means, it is reasonable to expect rather more thanless from that Member in terms of serious good faith efforts.  Indeed, thecapacity of persuasion of the United States is illustrated by the successfulnegotiation 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.
98Panel Report, para. 3.131.
99Ibid., paras. 3.125 and 3.127.
100Ibid., para. 5.93.WT/DS58/AB/RW
Page 44
having regulatory programs "comparable" to  that of the United States, and even if the measure is
applied in such a manner, it results in "arbitrary or unjustifiable discrimination" because it conditionsaccess to the United States market on compliance with policies and standards "unilaterally" prescribedby the United States.  Thus, Malaysia  puts considerable emphasis on the "unilateral" nature of the
measure, and Malaysia maintains that our previous Report does not support the conclusion of the
Panel on this point.
101
137. We recall that, in  United States – Shrimp ,  we stated:
It appears to us … that  conditioning access to a Member's domestic
market on whether exporting Members comply with, or adopt, a
policy or policies unilaterally prescribed by the importing Membermay, to some degree, be a common aspect of measures falling within
the scope of one or another of the exceptions (a) to (j) of Article XX .
Paragraphs (a) to (j) comprise measures that are recognized as
exceptions to  substantive obligations  established in the GATT 1994,
because the domestic policies embodied in such measures have beenrecognized as important and legitimate in character.  It is not
necessary to assume that requiring from exporting countries
compliance with, or adoption of, certain policies (although covered in
principle by one or another of the exceptions) prescribed by the
importing country, renders a measure a priori  incapable of
justification under Article XX.  Such an interpretation renders most, if
not all, of the specific exceptions of Article XX inutile, a resultabhorrent to the principles of interpretation we are bound to apply.
102
(emphasis added)
138. In our view, Malaysia overlooks the significance of this statement.  Contrary to what
Malaysia suggests, this statement is not " dicta ".  As we said before, it appears to us "that conditioning
access to a Member's domestic market on whether exporting Members comply with, or adopt, a policyor policies unilaterally prescribed by the importing Member may, to some degree, be a commonaspect of measures falling within the scope of one or another of the exceptions (a) to (j) of
Article XX."  This statement expresses a principle that was central to our ruling in
United States – Shrimp .
139. A separate question arises, however, when examining, under the chapeau of Article XX, a
measure that provides for access to the market of one WTO Member for a product of other WTOMembers conditionally.   Both Malaysia and the United States agree that this is a common aspect of
the measure at issue in the original proceedings and the new measure at issue in this dispute.
                                                     
101Malaysia's appellant's submission, paras. 3.17-3.19.
102Appellate Body Report, supra , footnote 24, para. 121.WT/DS58/AB/RW
Page 45
140. In  United States - Shrimp ,  we concluded that the measure at issue there did not meet the
requirements of the chapeau of Article XX relating to "arbitrary or unjustifiable discrimination"because, through the application of the measure, the exporting members were faced with "a single,rigid and unbending requirement"
103 to adopt  essentially the same   policies and enforcement practices
as those applied to, and enforced on, domestic shrimp trawlers in the United States.  In contrast, in
this dispute, the Panel found that this new measure is more flexible than the original measure and hasbeen applied more flexibly than was the original meas ure.  In the light of the evidence brought by the
United States, the Panel satisfied itself that this new measure, in design and application, does  not
condition access to the United States market on the adoption by an exporting Member of a regulatoryprogramme aimed at the protection and the conservation of sea turtles that is  essentially the same   as
that of the United States.
141. As the Panel's analysis suggests, an approach based on whether a measure requires
"essentially the same" regulatory programme of an exporting Member as that adopted by the
importing Member applying the measure is a useful tool in identifying measures that result in
"arbitrary or unjustifiable discrimination" and, thus, do  not  meet the requirements of the chapeau of
Article XX.  However, this approach is not sufficient for purposes of judging whether a measure  does
meet   the requirements of the chapeau of Article XX.
   Therefore, in construing our previous Report,
the Panel inferred from our reasoning there that a measure requiring United States and foreignregulatory programmes to be "comparable in effectiveness", as opposed to being "essentially thesame", would, absent some other shortcoming, comply  with the chapeau of Article XX.  On this, the
Panel stated:
It seems that whereas the Appellate Body found that requiring the
adoption of essentially the same regime constituted arbitrary
discrimination, it accepted - at least implicitly - that a requirement that
the US and foreign programmes be "comparable in effectiveness"would be compatible with the obligations of the United States under
the chapeau of Article XX.  This is because it would "permit a degree
of discretion or flexibility in how the standards for determining
comparability might be applied, in practice, to other countries."  We
therefore conclude that if, in practice , the implementing measure
provides for "comparable effectiveness", the finding of the Appellate
Body in terms of lack of flexibility will have been addressed.
104
(footnote omitted)
                                                     
103Appellate Body Report, supra , footnote 24, para. 177.
104Panel Report, para. 5.93.WT/DS58/AB/RW
Page 46
142. The Panel reads our previous Report to state that a major deficiency of the original measure
was its lack of flexibility, in both design and application.  The Panel sees our previous Report assuggesting that the original measure was applied in a manner which constituted "unjustifiablediscrimination" essentially "because the application of the measure at issue did not allow for any
inquiry into the appropriateness of the regulatory program for the conditions prevailing in the
exporting countries."
105  The Panel reasons that a measure that, in its design and application, allows
certification of exporting Members having regulatory programmes "comparable in effectiveness" tothat of the United States does take into accoun t the specific conditions prevailing in the exporting
WTO Members and is, therefore, flexible enough to meet the requirements of the chapeau ofArticle XX.
143. Given that the original measure in that dispute required "essentially the same" practices and
procedures as those required in the United States, we found it necessary in that appeal to rule only thatArticle XX did not allow such inflexibility.  Given the Panel's findings with respect to the flexibility
of the new measure in this dispute, we find it necessary in this appeal to add to what we ruled in our
original Report.  The question raised by Malaysia in this appeal is whether the Panel erred in inferring
from our previous Report, and thereby finding, that the chapeau of Article XX permits a measurewhich requires only "comparable effectiveness".
144. In our view, there is an important difference between conditioning market access on the
adoption of essentially the same programme, and conditioning market access on the adoption of aprogramme  comparable in effectiveness . Authorizing an importing Member to condition market
access on exporting Members putting in place regulatory programmes  comparable in effectiveness  to
that of the importing Member gives sufficient latitude to the exporting Member  with respect to the
programme it may adopt to achieve the level of effectiveness required.  It allows the exportingMember to adopt a regulatory programme that is suita ble to the specific conditions prevailing in its
territory.  As we see it, the Panel correctly reasoned and concluded that conditioning market access onthe adoption of a programme  comparable in effectiveness ,  allows for sufficient flexibility in the
application of the measure so as to avoid "arbitrary or unjustifiable discrimination".  We, therefore,agree with the conclusion of the Panel on "comparable effectiveness".
                                                     
105Panel Report, para. 5.92.WT/DS58/AB/RW
Page 47
145. Malaysia also argues that the measure at issue is not flexible enough to meet the requirement
of the chapeau of Article XX relating to "unjustifiable or arbitrary discrimination" because theRevised Guidelines do not provide explicitly for the specific conditions prevailing in Malaysia.
106
146. We note that the Revised Guidelines contain provisions that permit the United States
authorities to take into account the specific conditions of Malaysian shrimp production, and of the
Malaysian sea turtle conservation programme, should Malaysia decide to apply for certification.  TheRevised Guidelines explicitly state that "[if] the government of a harvesting nation demonstrates thatit has implemented and is enforcing a comparably effective regulatory program to protect sea turtlesin the course of shrimp trawl fishing without the use of TEDs, that nation will also be eligible forcertification."
107   Likewise, the Revised Guidelines provide that the "Department of State will take
fully into account any demonstrated differences between the shrimp fishing conditions in theUnited States and those in other nations as well  as information available from other sources." 
108
147. Further, the Revised Guidelines provide that the import prohibitions that can be imposed
under Section 609 do not apply to shrimp or products  of shrimp "harvested in any other manner or
under any other circumstances that the Department of State may determine, following consultations
with the [United States National Marine Fisheries Services], does not pose a threat of the incidentaltaking of sea turtles."
109  Under Section II.B(c)(iii) of the Revised Guidelines ( Additional Sea Turtle
                                                     
106According 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 isdue 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 theshrimp season.  The Loggerheads and the Kemps released rarely nested onMalaysian 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, theHawksbill, Leatherback and Olive Ridley are the major sea turtle species inMalaysia.  Green turtles were resident in sea grass beds which were found inshallow 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, turtleswere actively swimming close to the surface of the water which made themmore vulnerable to drift nets and long lines rather than trawl nets.  InMalaysia, trawling targeted fish for the most part of the year and thus theincidental capture of sea turtles was due to fish trawls and not shrimp trawls.
(Malaysia's response to questioning at the oral hearing)
107Revised Guidelines, Section II.B;  see, Panel Report, p. 105.
108Ibid.
109Revised Guidelines, Section I.B;  see, Panel Report, p. 103.WT/DS58/AB/RW
Page 48
Protection Measures ), the "Department of State recognizes that sea turtles require protection
throughout their life-cycle, not only when they are threatened during the course of commercial shrimptrawl harvesting."
110  Additionally, Section II.B(c)(iii) states that "[i]n making certification
determinations, the Department shall also take fully into account other measures the harvesting nation
undertakes to protect sea turtles, including national programmes to protect nesting beaches and other
habitat, prohibitions on the direct take of sea turtles, national enforcement and complianceprogrammes, and participation in any international agreement for the protection and conservation ofsea turtles."
111  With respect to the certification process, the Revised Guidelines specify that a country
that does not appear to qualify for certification will receive a notification that "will explain the reasonsfor this preliminary assessment, suggest steps that the government of the harvesting nation can take in
order to receive a certification, and invite the government of the harvesting nation to provide … anyfurther information."  Moreover, the Department of State commits itself to "actively consider anyadditional information that the government of the harvesting nation believes should be considered by
the Department in making its determination concerning certification."
112
148. These provisions of the Revised Guidelines, on their face, permit a degree of flexibility that,
in our view, will enable the United States to consider the particular conditions prevailing in Malaysiaif, and when, Malaysia applies for certification.  As Malaysia has not applied for certification, anyconsideration of whether Malaysia would be certified would be speculation.
 113
                                                     
110Revised Guidelines, Section II.B(c)(iii); see, Panel Report, p. 106.
111Ibid.
112Revised Guidelines, Section II.C, Panel Report, p. 107.  See also , Revised Guidelines, Section II.D,
Panel Report, p. 108.
113In 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 fo r certification and it is therefore not
yet clear how the contested legislation would apply to imports of shrimp andshrimp products from Malaysia.
(European Communities' third participant's submission, para. 27)WT/DS58/AB/RW
Page 49
149. We need only say here that, in our view, a measure should be designed in such a manner that
there is sufficient flexibility to take into account the specific conditions prevailing in  any exporting
Member, including, of course, Malaysia.114   Yet this is not the same as saying that there must be
specific provisions in the measure aimed at addressing specifically the  particular conditions
prevailing in  every  individual  exporting Member.  Article XX of the GATT 1994 does not require a
Member to anticipate and provide explicitly for the specific conditions prevailing and evolving in every individual  Member.
150. We are, therefore, not persuaded by Malaysia's argument that the measure at issue is not
flexible enough because the Revised Guidelines do not explicitly address the specific conditionsprevailing in Malaysia.
151. Malaysia argues, finally, that the Panel should have scrutinized the decision of the CIT in the
Turtle Island   case and assessed, in the light of that decision, the likelihood and consequences of the
Revised Guidelines being modified in the future.  According to Malaysia, the Panel should have come
to the conclusion that the Revised Guidelines are not flexible enough because the CIT ruled that the
part of the Revised Guidelines allowing TED-caught shrimp from non-certified harvesting countriesto be imported into the United States is contrary to Section 609.
115  As we have already ruled116, we
are of the view that, when examining the United States measures, the Panel took into account thestatus of municipal law at the time, and reached the correct conclusion.  The CIT decision in theTurtle Island   case has not modified the legal effect or the application of the Revised Guidelines;
hence, we are not persuaded by this argument of Malaysia.
152. For all these reasons, we uphold the finding of the Panel, in paragraph 6.1 of the Panel
Report, that "Section 609 of Public Law 101-162, as implemented by the Revised Guidelines of
8 July 1999 and as applied so far by the [United States] authorities, is justified under Article XX of
                                                     
114Appellate Body Report, United States – Shrimp , supra , footnote 24, para. 164.
115Malaysia's appellant's submission, para. 3.25.
116See, supra , para. 95.WT/DS58/AB/RW
Page 50
the GATT 1994 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".117
VII. Findings and Conclusions
153. For the reasons set out in this Report, the Appellate Body:
(a) finds  that the Panel correctly fulfilled its mandate under Article 21.5 of the DSU of
examining the consistency, with the relevant provisions of the GATT 1994, of theUnited States measure taken to comply with the recommendations and rulings of theDSB in  United States - Shrimp ;  and
(b) upholds  the finding of the Panel, in paragraph 6.1 of its Report, that "Section 609 of
Public Law 101-162, as implemented by the Revised Guidelines of 8 July 1999 and
as applied so far by the [United States] authorities, is justified under Article XX of
the GATT 1994 as long as the conditions stated in the findings of this Report, inparticular the ongoing serious good faith efforts to reach a multilateral agreement,remain satisfied".
154. As we have upheld the Panel's finding that the United States measure is now applied in a
manner that meets the requirements of Article XX of the GATT 1994, we do not make anyrecommendation to the DSB pursuant to Article 19.1 of the DSU.
                                                     
117Panel 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 g ood 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 ofUnderstanding 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 4of 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 thisMemorandum of Understanding to make it legally binding.
At the oral hearing, the United States stated th at "[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 inte rnational agreement that is concluded between States in
written form and governed by international law, whether embodied in a single instrument or in two or morerelated instruments, whatever its partic ular 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 findingthat the United States had indeed made serious good faith efforts to negotiate a multilateral agreement.WT/DS58/AB/RW
Page 51
Signed in the original at Geneva this 2nd day of October 2001 by:
_________________________
James Bacchus
Presiding Member
_________________________ _________________________
A.V. Ganesan Julio Lacarte-Muró
Member Member