e body of trade jurisprudence that has considered and parsed the meaning of each element of this provision as it applies to a considerable variety of import control measures. It is fair, we believe, to say that these cases have given Article XI a broad reading and have, at the same time, demonstrated a consistent reluctance to limit or in any other way circumscribe the ambit of its application. However, there are many fewer cases that have considered the application of this provision to export control measures. Coincidentally, the leading cases that have interpreted Article XI constraints from this perspective both concern Canadian export measures for salmon and herring caught off Canada’s west coast. The first of these salmon and herring cases arose under GATT and concerned a blanket prohibition against the export on any unprocessed salmon and herring. The second, which was brought under NAFTA, challenged regulations that imposed certain landing requirements for salmon and herring for the purposes of inspection and biological sampling prior to export. Both cases were brought by the United States. Both were successful in challenging these Canadian regulatory regimes. It is very relevant to the issues before us that the NAFTA panel interpretation of Article XI as it applies to export controls was even broader than that found in the jurisprudence concerning import controls. It is beyond the scope of this opinion, nor is it necessary in our view, to delve into this jurisprudence further to recognize that it would be very difficult to craft water export control measures that would not violate Article XI constraints — with two significant exceptions. The first would be to adopt a "duty, tax or other charge" that would effectively prohibit or restrict bulk water exports. Allowance for the use of such measures is specifically contemplated by the wording of Article XI. Indeed this is one of the most fundamental points of departure b...
