As we all know, "should" means something very different from "shall." Except when it doesn't. This is from the Korea - Radionuclides panel report circulated last week:
7.9.5.1 Does Annex C(1)(g) impose a positive obligation?
7.426. Japan relies on prior panel and Appellate Body rulings to argue that the word "should" can have either a normative or a hortatory meaning. Japan further argues that read in the light of its context, in particular Article 8 and the chapeau of Annex C(1), subparagraph (g) denotes a positive obligation. Japan further supports its argument with a reference to reports by a panel and by the Appellate Body, which mention subparagraph (g) as one of the obligations listed in Annex C(1).
7.427. Korea contends that the interpretation of Annex C(1)(g) must give effect to the plain meaning of the term "should", which expresses exhortation rather than obligation. Korea also contrasts the use of should in subparagraph (g) with the use of shall as well as indicative forms "are" or "be" in other provisions of the SPS Agreement. Likewise, Korea juxtaposes the language of Annex C(1)(g) with that of Article 5.2.6 of the TBT Agreement, contending that the mandatory nature of the latter is explicit through the use of the verb "are". According to Korea, this difference in the language of various provisions ought to be given effect. Korea relies in that regard on the panel report in US – Animals, which found that the use of should in Article 5.4 of the SPS Agreement denotes exhortation. Korea concludes on that basis that Annex C(1)(g) is merely a "best effort provision" that encourages Members to minimize the inconvenience on importers in application of criteria for sampling and siting of facilities.
7.428. The Panel begins its interpretation of Annex C(1)(g) with reference to the relevance of the term "should". As regards its plain meaning, "should" is somewhat of a chameleon in the treaty text and the Appellate Body found in Canada – Aircraft that, depending on the circumstances, should can express either an exhortation or an obligation.
7.429. The panel in US – Animals, observed that "the use of 'should' as opposed to 'shall' in any particular provision of [the SPS] Agreement was a deliberate choice." The Panel further notes that the use of "should" in subparagraph (g) contrasts with the use of indicative forms "is" or "are" in subparagraphs (a) through (e), (h) and (i) in the same Annex. The Panel agrees with the Appellate Body that "the choice and use of different words in different places in the SPS Agreement are deliberate, and … the different words are designed to convey different meanings." Following the approach of the Appellate Body in Canada – Aircraft and Mexico – Taxes on Soft Drinks as well as the panel in US – Animals, a conclusion on whether "should" is used as an exhortation or to express a duty or obligation must be based on the context of the provision as a whole. Thus, it would be inappropriate for the Panel to assume that because "should" is exhortatory in Article 5.4 that it is automatically the same in Annex C(1)(g). The Panel must base our determination on the context of the provision. The Panel, therefore, now turns to the context of subparagraph (g).
7.430. First, the Panel notes that the word "should" in Annex C(1)(g) is followed by "so as", which connects the two parts of the provision. Unlike a more attenuated expression "take into account" used in Article 5.4, which requires consideration of relevant facts, "so as" denotes a result or a consequence, which subparagraph (g) aims to achieve. Given the more tenuous language of Article 5.4, as well as the different context of that provision, it would be inappropriate to apply the conclusions reached by the panel in US – Animals under Article 5.4 to Annex C(1)(g). The Panel understands that the use of should in Annex C(1)(g) is meant to emphasise that the purpose of the provision is to minimize the inconvenience to applicants, importers, exporters or their agents and consistency with the obligation would be determined in that light.
7.431. Likewise, the Panel is not persuaded by Korea's argument juxtaposing the language of Annex C(1)(g) and Article 5.2.6 of the TBT Agreement. The Panel notes that, unlike Annex C(1)(g), Article 5.2.6 does not require using the same criteria for siting of facilities and the selection of samples, but that these criteria "are not such as to cause unnecessary inconvenience". Annex C(1)(g) is thus at least as specific in its content as Article 5.2.6 of the TBT Agreement, which, Korea argues, is an example of a positive obligation. We cannot, therefore, agree that the differences in language between Article 5.2.6 of the TBT Agreement and Annex C(1)(g) can support an interpretation of subparagraph (g) as a hortatory provision.
7.432. The Panel further notes that Article 8 and the chapeau of Annex C(1) provide respectively that "Members shall observe the provisions of Annex C" and that with respect to any procedure to check and ensure the fulfilment of SPS measures, "Members shall ensure" observance of subparagraphs (a) through (i). Both provisions thus instruct Members to comply with the individual subparagraphs of Annex C(1), implying that Annex C(1)(g) connotes a positive obligation. This understanding of the nature of Annex C(1)(g) is consistent with the Appellate Body's ruling in Australia – Apples that the "obligations contained in Annex C(1) are: … (g) that the same criteria be used in the siting of facilities used in the procedures and the selection of samples of imported products as for domestic products".
7.433. In sum, having regard to the language of the whole of subparagraph (g) as well as the rest of Annex C and the SPS Agreement, the Panel concludes that Annex C(1)(g) imposes a positive obligation on the Members to use the same criteria in the siting of facilities used in the procedures and the selection of samples of imported as for domestic products so as to minimize the inconvenience to applicants, importers, exporters or their agents. The Panel now moves on to assess Japan's claims under that provision.
(footnotes omitted)
For reference, Annex C(1)(g) says:
Members shall ensure, with respect to any procedure to check and ensure the fulfilment of sanitary or phytosanitary measures, that:
...
the same criteria should be used in the siting of facilities used in the procedures and the selection of samples of imported products as for domestic products so as to minimize the inconvenience to applicants, importers, exporters or their agents;
