Abstract: This article explores the complex relationship between the United Nations Convention on the Law of the Sea (UNCLOS) and the General Agreement on Tariffs and Trade (GATT) in the context of World Trade Organization (WTO) cases that raise issues of conflict between free trade and the protection of marine resources. Through an analysis of the US-Shrimp case, the article demonstrates how UNCLOS is referenced to interpret GATT provisions, particularly Article XX on general exceptions. The article also compares the differing approaches of UNCLOS and GATT through the Chile-Swordfish and EU-Herring cases, highlighting the potential conflicts between marine resource conservation measures and free trade regulations. Additionally, the article discusses the linkage between UNCLOS and GATT under Article XX of GATT, as well as the impact of the Doha Round negotiations on harmonizing these two legal frameworks. Finally, the article emphasizes the necessity of integrating environmental protection goals into the international trade system to achieve sustainable development objectives.
Keywords: UNCLOS, WTO, GATT, WTO cases, Article XX GATT
1. Introduction
In the context of globalization and the increasing emergence of transboundary environmental issues, the relationship between international trade law and environmental law, particularly the law of the sea, has become increasingly important and complex. The United Nations Convention on the Law of the Sea (UNCLOS) and the General Agreement on Tariffs and Trade (GATT) constitute two principal pillars of the international legal system, respectively governing matters relating to the use and protection of the oceans and international trade. However, differences in the objectives and approaches of these two instruments may at times lead to conflicts, especially when marine resource conservation measures are applied in ways that may violate provisions on trade liberalization. This article seeks to explore the relationship between UNCLOS and GATT by analyzing specific disputes and discussing efforts to harmonize these instruments within the framework of the World Trade Organization (WTO).
2. Reference to UNCLOS in the WTO Appellate Body Report in the US–Shrimp case
The US–Shrimp case concerned the WTO-consistency of an import prohibition imposed by the United States on shrimp harvested with technology harmful to sea turtles, a species listed as endangered under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) 1973.[1] To justify that this prohibition did not violate its obligations under Article XI of the GATT,[2] the United States invoked Article XX of the GATT – the “general exceptions” clause. This provision enumerates, from subparagraphs (a) to (j), circumstances under which WTO members may be exempted from applying the rules of the GATT.[3] Among these, the United States relied on Article XX(g), which permits the adoption of measures “relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption”.
Accordingly, the Appellate Body (AB) had to determine whether sea turtles could be regarded as “exhaustible natural resources” under Article XX(g). The complainants (including India, Malaysia, Pakistan, and Thailand) argued that this term should be interpreted narrowly, applying only to non-renewable resources such as minerals, and not to animals, which are living resources capable of natural regeneration. They further contended that issues involving living resources should instead be examined under Article XX(b), which covers measures “necessary to protect human, animal or plant life or health” (and therefore encompasses living natural resources), and which imposes stricter requirements than Article XX(g). By contrast, Article XX(g) merely requires that a measure be “relating to” conservation – a less stringent and more easily satisfied standard than the more demanding “necessary” test under Article XX(b).[4]
According to the complainants, this difference in standards reflects the intent of the drafters of the GATT: to simplify the protection of non-renewable resources as compared to the protection of human and animal health.[5] However, the Appellate Body did not agree with this narrow interpretation, reasoning that living species, “although in principle capable of regeneration,” may in certain circumstances “be depleted, exhausted or extinguished, frequently because of human activities.”[6]
The Appellate Body affirmed that, from a textual standpoint, Article XX(g) does not exclude biological resources.[7] Moreover, it emphasized the need to interpret Article XX of the GATT in a “dynamic and evolutionary manner,” based on “contemporary concerns of the community of nations about the protection and conservation of the environment”[8] – a concern reflected in the sustainable development objective set out in the Preamble to the WTO Agreement.[9]
To reinforce its view that the concept of “natural resources” had evolved from the GATT 1947 era to include both living and non-living resources, the Appellate Body referred to several modern international conventions, including UNCLOS.[10] Specifically, Article 56 of UNCLOS provides for the rights, jurisdiction, and duties of coastal States in their exclusive economic zones (EEZs), including the right to explore, exploit, conserve, and manage “the natural resources, whether living or non-living.” In addition, Articles 61 and 62 of UNCLOS also address the rights and obligations of States with respect to the conservation and utilization of living resources within their EEZs.[11]
In the above dispute, UNCLOS was not merely a reference instrument but played a significant role in assisting the Appellate Body to broaden its interpretation of “natural resources” under Article XX(g). Article 56 of UNCLOS expressly recognizes that living resources, such as sea turtles, constitute part of the natural resources that require protection within the EEZs of coastal States. This aligns with the reality that sea turtles - migratory species traversing both the high seas and EEZs - are subjects of conservation under international law. By invoking UNCLOS, the Appellate Body demonstrated that its interpretation was grounded not only in the internal logic of the WTO system but also in harmony with the principles of contemporary international law of the sea, particularly in the context of marine environmental protection.[12]
The Appellate Body’s Report in the US–Shrimp dispute established an important precedent, affirming that WTO law should not be interpreted and applied in isolation from other rules of international law. However, it should be noted that the Appellate Body did not directly interpret or apply UNCLOS; rather, it used the Convention as a reference basis to clarify the content of Article XX of the GATT.[13] Notably, as indicated in footnote 110 of the Report, reliance on UNCLOS remained valid even though not all WTO Members, including the litigating parties, were parties to the Convention.[14]
Accordingly, UNCLOS played a significant role in shaping the Appellate Body’s reasoning, although its role was primarily supportive. The specific provisions of UNCLOS, particularly Article 56, helped affirm that sea turtles constitute living resources requiring protection, thereby reinforcing the justification for the United States’ import ban on shrimp. Nonetheless, because the Appellate Body did not engage in a detailed analysis of the provisions of UNCLOS, the Convention’s role in the dispute remained supplementary, situated within the broader context of international environmental law.
3. Differences in the approaches of UNCLOS and GATT as Reflected in the Chile–Swordfish and EU–Herring ases
Although the reference to UNCLOS in the Appellate Body Report in US–Shrimp had repercussions that extended well beyond the scope of that particular dispute (as the Report marked the first significant effort by a WTO adjudicatory body to integrate environmental protection considerations into trade law), the reality is that UNCLOS has so far occupied only a very modest position within WTO jurisprudence.
The scarcity of references to UNCLOS in WTO case law stands in stark contrast to the extensive potential areas of interaction and overlap between the law of the sea and international trade law. Some of these issues have been discussed within the framework of the Doha Development Agenda, launched at the WTO’s Fourth Ministerial Conference in November 2001.[15]
In particular, the relationship between UNCLOS provisions on the exploitation, conservation, and management of marine living resources and the GATT rules prohibiting trade-restrictive measures appears to be the area most prone to serious conflict.[16] In this respect, the interaction between the WTO and UNCLOS clearly falls within the broader antagonistic relationship between trade liberalization and environmental protection. Indeed, there is an inherent tension between the overarching objective of UNCLOS - to promote the equitable and efficient use of marine resources—and the international trade liberalization policies endorsed by the WTO.[17]
A more specific illustration of the divergence in approaches between UNCLOS and the WTO lies in the fact that UNCLOS permits or requires States to adopt measures for the conservation of marine resources, whereas the WTO prohibits trade-restrictive measures. Consequently, when a State implements a conservation measure pursuant to UNCLOS, that measure may be regarded as violating WTO rules on trade liberalization. This results in an inconsistency in the approaches of two major instruments within the international legal system.
The potential inconsistency between international trade law and the law of the sea is clearly demonstrated in two disputes relating to restrictive measures aimed at ensuring the conservation and promoting the optimal utilization of highly migratory fish stocks, which gave rise to questions concerning their incompatibility with GATT. In both disputes, the competing considerations of trade and conservation were brought before the WTO Dispute Settlement Body (DSB) and the International Tribunal for the Law of the Sea (ITLOS).
3.1.The Chile-Swordfish case
The first case is the Chile-Swordfish dispute between the European Community (EC) and Chile. The dispute originated from Chile’s decision to prohibit the landing and transshipment in its ports of swordfish catches taken from the high seas adjacent to Chile’s EEZ, in violation of its domestic legislation on the conservation and sustainable exploitation of this species.[18] As a result, Spanish fishing vessels were denied access to Chilean ports. This prompted the EC to initiate proceedings before the WTO’s Dispute Settlement Body (DSB),[19] while Chile filed an application before ITLOS under Part XV of UNCLOS.
In this case, the EC alleged that Chile had violated Article V of GATT (which provides for the freedom of transit of goods through the territory of each contracting party for traffic in transit to or from the territory of other contracting parties) and Article XI of GATT (which prohibits quantitative restrictions on imports or exports).[20] Conversely, Chile claimed that the EC had breached its duty to cooperate in the conservation and management of highly migratory species in the high seas adjacent to Chile’s EEZ (Article 64 UNCLOS), as well as the provisions governing the conservation and management of living resources in the high seas (Articles 117 to 119 UNCLOS).[21]
Accordingly, ITLOS (with a Special Chamber) and the WTO’s DSB were simultaneously required to adjudicate different legal issues arising from the same set of events between Chile and the EC, thereby creating the possibility of irreconcilable rulings.
3.2. The EU-Herring case
The second dispute concerns the management and conservation of herring and mackerel stocks in the Northeast Atlantic, between the European Union (EU) and the Faroe Islands.[22] The EU adopted trade-restrictive measures on conservation grounds in response to the unilateral decision of the Faroe Islands to increase their catch quotas after withdrawing from negotiations within the North-East Atlantic Fisheries Commission (NEAFC) on the allocation of total quotas for 2013.[23]
For their part, the Faroe Islands took this decision after NEAFC rejected their request to reconsider the quota allocation. According to the Faroe Islands, due to the warming of sea waters caused by climate change, herring and mackerel stocks had shifted northwards, resulting in an increase of these species within their EEZ. Consequently, the quotas set by NEAFC were no longer considered to be proportionate to the actual biomass present in the waters under the jurisdiction of the relevant parties.
The EU responded by imposing an import ban on herring, mackerel-related species, and fishery products containing or processed from these species. At the same time, the EU restricted the use of its ports for vessels fishing for herring and mackerel under the control of the Faroe Islands, as well as for vessels transporting fish or fishery products from this fishery.[24]
In the EU-Herring case, the EU applied trade-restrictive measures on the grounds of conserving fish stocks pursuant to the provisions of UNCLOS, while the Faroe Islands argued that the EU had violated the UNCLOS rules on the management of marine living resources. This once again illustrates the conflict between conservation measures under UNCLOS and the WTO rules on free trade.
In this case, as in Chile-Swordfish, parallel proceedings were initiated: one under Part XV of UNCLOS[25] and one under the WTO dispute settlement mechanism,[26] although this time the complaints were filed by the same party. As in the Chile-Swordfish case, this resulted in the possibility that the same set of facts would be examined from different legal perspectives: while the UNCLOS Arbitral Tribunal would address issues pertaining to UNCLOS (the cooperation obligation under Article 63), the WTO Dispute Settlement Body (DSB) would have to rule on matters related to GATT (freedom of transit and non-tariff restrictions on imports). This clearly gave rise to the risk that these proceedings might lead to conflicting outcomes. However, in both cases, this risk was neutralized because the parties reached a mutually agreed solution before the hearings commenced. This initially resulted in the suspension of the parallel proceedings before the two dispute settlement bodies,[27] and later in their termination once the respective complaints were withdrawn.[28]
3.3. Unresolved issues
However, the settlement of these disputes has left many fundamental issues unresolved regarding the relationship between the law of the sea and WTO law, as well as between their respective dispute settlement mechanisms. The possibility of similar situations arising in the future cannot be ruled out. The potential for normative conflict and for parallel proceedings before ITLOS and WTO adjudicatory bodies has increased further following the entry into force, on 5 June 2016, of the FAO Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (Port State Measures Agreement).[29] This Agreement requires port States to deny port entry and port services to vessels involved in illegal, unreported and unregulated (IUU) fishing activities, with a view to preventing illegally caught fish from entering international markets through their ports.[30] It can therefore be anticipated that restrictions on port access and port use will increasingly be employed as instruments against overfishing and IUU fishing.[31]
Although the Port State Measures Agreement does not explicitly refer to the use of trade measures, certain regional fisheries management organizations (RFMOs) have at times recommended that their members adopt trade-restrictive measures to achieve conservation objectives.[32] Since all such measures may result in incompatibility with the GATT – particularly with Articles V and XI, as illustrated in the cases described above – the question arises as to whether they can be justified under Article XX of the GATT. Accordingly, the next section will analyse the relationship between fisheries management measures and the international trade regime through the lens of this provision.
4. The relationship between UNCLOS and the GATT under Article XX of the
Four principal points must be clarified regarding reliance on the environmental exceptions under Article XX in situations where potential conflicts may arise between UNCLOS and the GATT of the WTO:
First, as demonstrated, fish stocks may be considered an “exhaustible natural resource” for the purposes of Article XX(g).[33] Consequently, national measures aimed at protecting endangered fish species may fall within the scope of Article XX of the GATT.[34] In such cases, because the standard under Article XX(g) is less stringent than the standard required under Article XX(b),[35] states may be inclined to rely on subparagraph (g) to justify their measures. Nevertheless, Article XX(b) may still be invoked to justify regulatory measures aimed at protecting marine resources that are not in immediate danger of depletion. Moreover, Article XX(d), which concerns measures necessary to secure compliance and prevent fraudulent practices, may apply to measures directed at combating IUU fishing.[36]
Second, the Appellate Body report in US–Shrimp indicates that WTO Members may adopt unilateral measures to protect the environment based on the production or process methods (PPMs) of the product (for example, the manner in which shrimp are harvested),[37] even though neither the text of Article XX nor its drafting history clearly establishes that the general exceptions were intended to apply to PPMs.
Third, conservation policies for marine resources located beyond the jurisdiction of the regulating State are generally considered to fall within the scope of the exceptions under Article XX of the GATT, at least in cases where highly migratory fish stocks are harvested on the high seas but reside in the coastal State’s EEZ or in the adjacent high seas, or where the depletion of such species may be regarded as a common concern of the international community. In practice, the GATT does not address whether implicit jurisdictional limits exist within Article XX(g). However, WTO case law has demonstrated greater flexibility than a strict territorial reading of Article XX.
In its report in US–Shrimp, the Appellate Body, while avoiding a direct resolution of the extraterritoriality issue,[38] examined the fact that the endangered sea turtles being protected also migrated through waters under United States jurisdiction and considered this to constitute a “sufficient nexus between the migratory and endangered marine populations and the United States for the purposes of Article XX(g)”.[39] It also observed that neither party claimed “exclusive ownership of sea turtles”,[40] yet did not engage in a deeper analysis of the concept of a “sufficient nexus”.
Similarly, in EU–Seal Products, concerning the EU’s prohibition on the importation and sale of seal products, the Appellate Body, after noting that the parties had not directly raised the issue of the extraterritorial application of Article XX of the GATT on appeal, confined its assessment to stating that the measure was “designed to address seal hunting activities occurring both within and outside the European Union and the concerns regarding seal welfare held by ‘citizens and consumers’ within EU member States”, without further elaboration on this matter.[41]
The Appellate Body appeared to indicate that, even if geographical or jurisdictional limitations might be inferred within Article XX(a), the above considerations nonetheless created a “sufficient nexus” between seals and the European Union, provided that the measure reflected the moral concerns of EU citizens and consumers regarding activities occurring, at least in part, within EU territory.[42]
Fourth, the law of the sea may be relevant to the assessment of claims under the chapeau of Article XX of the GATT.[43] According to WTO jurisprudence, Article XX must be applied through a two-tiered analysis. First, it must be determined whether the challenged measure falls within one of the specific exceptions set out in subparagraphs (a) to (j); second, an examination must follow as to whether the application of the measure satisfies the requirements of the chapeau. Under the chapeau, a restrictive measure must not constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, nor a disguised restriction on international trade.[44]
WTO dispute settlement bodies, when assessing the existence of unjustifiable discrimination, place particular emphasis on whether the respondent Member has made good-faith efforts to reach a multilateral solution prior to adopting unilateral measures. For example, the lack of a cooperative approach was one of the principal reasons why the Appellate Body in US–Shrimp concluded that the United States’ import prohibition did not pass the “chapeau test” under Article XX of the GATT.[45] Notably, according to the Appellate Body, the need for a multilateral approach in that case also stemmed from the fact that the measures sought to address a problem of a global nature.[46]
The emphasis by WTO adjudicatory bodies on the obligation to engage in good-faith negotiations with trading partners has created a “bridge” linking Article XX of the GATT with the duty to cooperate in the management and conservation of fishery resources in the EEZ and on the high seas under Articles 63, 64, and 118 of UNCLOS, as well as under other relevant agreements.
The Appellate Body’s support for a multilateral approach to resolving conflicts between trade-liberalization concerns and conservation objectives appears to indicate that trade measures may be considered “more WTO-consistent” when they are constructed on a multilateral basis and result from a cooperative attitude towards global environmental issues. Consequently, it is highly likely that trade measures will pass the Article XX test when they are applied to implement conservation obligations concerning fisheries under UNCLOS and the agreements implementing or related to UNCLOS.[47]
In practice, the WTO Secretariat appears to have recognized the WTO-legality of trade measures recommended by regional fisheries management organizations. When discussing trade-restrictive measures adopted by the International Commission for the Conservation of Atlantic Tunas (ICCAT) and the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR), the WTO has characterized these as “examples of appropriate and WTO-consistent (i.e. non-discriminatory) use of trade measures in multilateral environmental agreements”.[48]
5. The implications of the Doha round for the relationship between UNCLOS and the GATT
Efforts to integrate environmental and sustainable development issues into the international trading system are currently underway within the framework of the WTO’s Doha Development Round. In particular, the reform agenda has addressed several matters directly relevant to the relationship between the WTO and UNCLOS.[49] For example, this includes the relationship between the WTO and Multilateral Environmental Agreements (MEAs)[50] and the issue of determining origin under the Agreement on Rules of Origin (ARO) for fish caught by the distant-water fleets of fishing nations within the EEZs of other States.[51] At Doha, WTO Members also agreed to launch negotiations to “clarify and improve WTO disciplines on fisheries subsidies, taking into account the importance of this sector to developing countries.”[52]
This is an area in which the objectives of the WTO (the elimination of restrictions on trade) and those of UNCLOS (the conservation of marine resources) may be regarded as convergent.[53] Fisheries subsidies are often considered to contribute to IUU fishing and are identified as one of the main causes of overexploitation. In addition, fisheries subsidies, like all forms of support measures, are also viewed as negatively affecting the process of international trade liberalization.
At present, WTO agreements contain no specific provisions on fisheries subsidies. In the past, during the Uruguay Round, major fishing nations succeeded in excluding fish products from the Agreement on Agriculture, resulting in fisheries subsidies not being subject to the subsidy-reduction commitments under that Agreement. Consequently, fisheries subsidies fall within the scope of the WTO’s general subsidy regime, namely the Agreement on Subsidies and Countervailing Measures (SCM Agreement), which sets out the conditions under which WTO Members may grant subsidies or apply countervailing measures to offset injury caused by subsidized imports. The SCM Agreement applies a “traffic light” approach, classifying subsidies into three different categories: red-box (prohibited subsidies), green-box (permitted subsidies),[54] or amber-box (actionable subsidies). However, this mechanism has proved ineffective with respect to fisheries subsidies. Despite the widespread subsidization of the fisheries sector, in practice very few complaints have been brought in this area under the WTO’s DSU.[55]
In this context, another contentious issue affecting the relationship between UNCLOS and the WTO concerns the compatibility of the obligation under Article 62 of UNCLOS with the SCM Agreement. Pursuant to Article 62 of UNCLOS, if a coastal State does not have the capacity to harvest the entire allowable catch within its EEZ, it must grant other States access to the surplus through agreements. These agreements - mostly concluded between distant-water fishing nations and developing coastal States - allow foreign vessels to fish within the EEZ of the coastal State in exchange for financial compensation. This compensation is not an obligation imposed directly by UNCLOS but forms part of bilateral or multilateral arrangements between States, and generally represents only a small percentage of the total value of the catch.[56] As a result, distant-water fleets obtain a competitive advantage over their rivals, and concerns have been raised that such agreements may amount to an implicit subsidy for the foreign fishing industry.[57]
Although the Doha Round has been subject to prolonged delays, fisheries subsidies remain one of the issues most actively discussed by WTO Members.[58] The original mandate on this matter was further developed in 2005 at the Hong Kong Ministerial Conference, which issued a specific call for the prohibition of certain forms of fisheries subsidies that contribute to overcapacity and overfishing.[59] The adoption of the United Nations Sustainable Development Goals in 2015 provided new momentum to the negotiations by setting a 2020 deadline for the elimination of subsidies that contribute to IUU fishing.[60] In July 2017, the Chair of the WTO Negotiating Group on Rules circulated a compilation of seven proposals aimed at disciplining harmful fisheries subsidies,[61] which was further refined in October and November.[62] At the Ministerial Conference in Buenos Aires in December 2017, WTO Members expressed a strong commitment to advancing the negotiations with the objective of reaching, by the 2019 Ministerial Conference (one year ahead of the SDG target), “an agreement on comprehensive and effective disciplines to prohibit certain forms of fisheries subsidies that contribute to overcapacity and overfishing, and to eliminate subsidies that contribute to IUU fishing.”[63]
Adopted at the twelfth WTO Ministerial Conference held in Geneva in June 2022, the Agreement on Fisheries Subsidies marks a significant milestone in global efforts to conserve marine living resources. With the consensus of Members, the Agreement establishes a new, legally binding set of disciplines aimed at curbing harmful subsidy practices that constitute a major driver of large-scale depletion of fish stocks. Expected to serve as a “balancing point” between marine environmental protection and free trade, the Agreement is anticipated to secure the required number of acceptances for entry into force in the near future.
In sum, although recent developments may increase the potential for conflict between international trade law and the law of the sea, the Agreement on Fisheries Subsidies presents a substantial opportunity for the WTO and UNCLOS to cooperate and reinforce each other in pursuit of sustainable development.
6. Conclusion
In sum, the paper demonstrates that although UNCLOS and the GATT may entail potential conflicts arising from their divergent objectives and approaches, there are also opportunities for harmonization and mutual support, particularly through the GATT exceptions and ongoing negotiation efforts within the WTO framework. The reference to UNCLOS in the US–Shrimp case established an important precedent for integrating environmental protection principles into trade law. At the same time, disputes such as Chile–Swordfish and EU–Herring have illustrated the necessity of coordination between the dispute settlement mechanisms of UNCLOS and the WTO. Moreover, the recent WTO Agreement on Fisheries Subsidies represents a significant step forward in aligning the objectives of marine resource conservation and trade liberalization. To achieve sustainable development, the continued integration of environmental objectives into the international trade system is essential and should be further advanced in the future./.
MAIN REFERENCES
1. Auld K, Trade measures to prevent illegal fishing and the WTO: an analysis of the settled Faroe Islands dispute, World Trade Rev (Online):1–28 (2017)
2. Dostal DJ, Global fisheries subsidies: will the WTO reel in effective regulations?,Univ Pa J Int Econ Law 26:815–839 (2005)
3. Fagenholz A, A fish in water: sustainable Canadian Atlantic fisheries management and international law,Univ Pa J Int Econ Law 25:639–667 (2004)
4. Kelly JP, The seduction of the Appellate body: Shrimp/Sea Turtle I and II and the proper role of States in WTO governance, Cornell Int Law J 38:459–491(2005)
5. Knox JH, The judicial resolution of conflicts between trade and the environment, Harv Environ Law Rev 28:1–78 (2004)
6. Myers BK, Trade measures and the environment: can the WTO and UNCLOS be recon- ciled?, UCLA J Environ Law Policy 23:37–76 (2005)
7. Pauwelyn J, The role of public international law in the WTO: how far can we go?, Am J Int Law 95:535–578 (2001)
8. Pauwelyn J, Conflicts of norms in public international law: how WTO law relates to other rules of international law, Cambridge University Press, Cambridge (2003)
9. Stone CD, Too many fishing boats, too few fish: can trade laws trim subsidies and restore the balance in global fisheries? ,Ecol Law Q 24:505–543 (1997)
10. Telesetsky A, Scuttling IUU fishing and rewarding sustainable fishing: enhancing the effec- tiveness of the port state measures agreement with trade related measures, Seattle Univ Law Rev 38:1237–1270(2015)
11. Tyler Z, Saving fisheries on the high seas: the use of trade sanctions to force compliance with multilateral fisheries agreements, Tulane Environ Law J 20:43–95 (2006)
12. Young MA, Fragmentation or interaction: the WTO, fisheries subsidies, and international law, World Trade Rev 8:477–515 (2009)
13. Young MA, Trade measures to address environmental concerns in faraway places: jurisdic- tional issues,Rev Eur Comp Int Environ Law 23:302–317 (2014)
TS. Vu Kim Hanh Dung – Faculty of Economic Law, University of Economics and Law, Vietnam National University Ho Chi Minh City
Email: dungvkh@uel.edu.vn
[1] Section 609 of the United States Public Law 101–162 (“Section 609”) provides that access to the United States shrimp market is contingent upon exporting countries’ adoption of sea turtle conservation programs comparable to that of the United States.
[2] Article XI(1) of the GATT provides for the elimination of quantitative restrictions: “No contracting party shall institute or maintain any prohibition or restriction other than duties, taxes or other charges, whether made effective through quotas, import or export licences or other measures, on the importation of any product of the territory of any other contracting party or on the exportation or sale for export of any product destined for the territory of any other contracting party.”
[3] The invocation of the exceptions under Article XX of the GATT is constrained by the opening clause of this provision, or the so-called chapeau: “[s]ubject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination 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 the measures listed from subparagraphs (a) to (j).
[4] Initially, GATT Panels interpreted the term “relating to” in Article XX(g) as requiring a standard of scrutiny similar to that under Article XX(b). However, in the US–Gasoline report, the Appellate Body for the first time distinguished clearly between the standards of scrutiny required by these provisions, holding that they demand different degrees and types of linkage between the measure at issue and the government policy objective. See WTO Appellate Body, US–Gasoline (AB), Report, 29 April 1996, p. 17 et seq.
[5] WTO Panel, United States – Import Prohibition of Certain Shrimp and Shrimp Products, 15 May 1998, para. 3.237 et seq.
[6] Appellate Body, US–Shrimp, para. 128.
[7] Ibid.
[8] Ibid., para. 129. The Appellate Body also cited, in support of this interpretative approach, the advisory opinion of the International Court of Justice (ICJ) on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), in which the ICJ affirmed that where treaties contain terms that are not static but evolutionary, their interpretation “cannot remain unaffected by the subsequent development of law” (see footnote 109).
[9] Ibid., para. 130.
[10] The Appellate Body also referred to the 1992 Convention on Biological Diversity, signed at Rio de Janeiro on 5 June 1992 (UNEP/Bio.Div./N7-INC5/4); Agenda 21 adopted by the United Nations Conference on Environment and Development on 14 June 1992 (UN Doc. A/CONF.151/26/Rev.1); and the Resolution on Assistance to Developing Countries adopted on 23 June 1979, together with the Convention on the Conservation of Migratory Species of Wild Animals, signed at Bonn on 23 June 1979; see US–Shrimp (AB), para. 168 (referring to the Rio Declaration on Environment and Development, Agenda 21, the Convention on Biological Diversity, and the Convention on the Conservation of Migratory Species of Wild Animals).
[11] Ibid., para. 130.
[12] However, it should be noted that, as the Appellate Body itself pointed out (US–Shrimp (AB), para. 131), in GATT jurisprudence, fish species have been regarded as “exhaustible natural resources”: this was the case for tuna stocks, including albacore tuna, in US–Canadian Tuna (GATT Panel, United States – Prohibition of Imports of Tuna and Tuna Products from Canada, 22 February 1982, para. 4.9); and for salmon and herring stocks in Canada–Salmon and Herring (GATT Panel, Canada – Measures Affecting Exports of Unprocessed Herring and Salmon, 22 March 1988, para. 4.4). See also the report in US–Tuna (EEC), in which the Panel recognized that “a policy to conserve dolphins was a policy to conserve an exhaustible natural resource” (GATT Panel, United States – Restrictions on Imports of Tuna, circulated 16 June 1994, para. 5.13).
[13] See Yearwood, The interaction between World Trade Organisation (WTO) law and external international law: the constrained openness ofWTO law (a prologue to a theory), Routledge, London p. 199 (2012)
[14] US-Shrimp (AB), footnote 110.
[15] See further below, para. 6.
[16] With respect to the GATT, four Panel proceedings have addressed environmental measures aimed at protecting certain fish stocks: see GATT Panel, US-Canadian Tuna; Canada-Salmon and Herring; US-Tuna (Mexico) (United States-Restrictions on Imports of Tuna, not adopted, circulated on 3 September 1991); and US-Tuna (EEC).
[17] In this context, other international instruments should also be considered as supplements to the fisheries management regime under UNCLOS. Articles 64 and 118 of UNCLOS, by requiring States to cooperate in the conservation and management of living resources, envisage the establishment of regional or subregional fisheries management organizations or arrangements where appropriate. These organizations and arrangements have been widely established and are now the main instruments for promoting cooperation between States in managing transboundary fish stocks.
In addition, the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (UNFSA) is also significant in this regard. UNFSA reinforces Articles 63 and 64 of UNCLOS by setting out modalities and measures for the implementation of States’ obligations to cooperate in conserving and managing straddling and highly migratory fish stocks. UNFSA expressly provides, with respect to catches taken on the high seas, that port States may “adopt regulations to allow the competent national authorities to prohibit landings and transshipments where it has been established that the catch has been taken in a manner which undermines the effectiveness of subregional, regional or global conservation and management measures on the high seas” (Article 23(3)). Moreover, under Article 23(1), a port State has “the right and the duty to take measures, in accordance with international law, to promote the effectiveness of subregional, regional and global conservation and management measures.”
[18] This decision is based on Article 165 of Chile’s Fisheries Law (Ley General de Pesca y Acuicultura), consolidated by Supreme Decree No. 430 of 28 September 1991 and extended by Decree No. 598 of 15 October 1999; see www.fao.org/faolex/results/details/en/?details=LEX-FAOC001227. To ensure the conservation of marine resources on the high seas of the South-East Pacific Ocean, Chile also negotiated, with the other members of the Permanent Commission of the South Pacific - Colombia, Ecuador and Peru - the Galapagos Agreement. See the Framework Agreement for the Conservation of the Living Marine Resources on the High Seas of the South-East Pacific, signed at Santiago de Chile on 14 August
[19] On 19 April 2000, the EC requested formal consultations with Chile under Article 4 of the DSU and Article XXIII of the GATT (Chile-MeasuresAffecting the Transit and Importation of Swordfish: Request for Consultations by the European Communities, 26 April 2000). As the consultations did not result in a mutually satisfactory solution, the EC requested the establishment of a WTO Panel to examine the dispute (see Chile-Measures Affecting the Transit and Importation of Swordfish: Request for the Establishment of a Panel by the European Communities, 7 November 2000), and this request was accepted by the DSB at its meeting on 12 December 2000.
[20] Minutes of the meeting held at the Centre William Rappard on 17 November 2000, 15 January 2001, para. 101 et seq. In response, Chile asserted that the measures it had adopted were “firmly based on obligations imposed and rights granted by the United Nations Convention on the Law of the Sea” and “fully justified under Article XX of GATT 1994”: ibid., para. 112.
[21] See Conservation and Sustainable Exploitation of Swordfish Stocks, paras. 3(a) and 3(b). Chile also alleged that the EC had violated “the sovereign rights and obligations of Chile, as a coastal State, to regulate conservation measures for swordfish within its national jurisdiction and to ensure the implementation of such measures in its ports, in a non-discriminatory manner” (ibid., para. 3(c)); and had breached procedural obligations under Article 297(1)(b) of UNCLOS as well as the obligation to act in good faith under Article 300 of UNCLOS (ibid., para. 3(d)).
For its part, the EC requested that the Special Chamber determine, among other issues, whether Chile’s unilateral conservation measures for swordfish on the high seas violated Articles 87, 89, and 116 to 119 of UNCLOS; whether the Galapagos Agreement was consistent with Articles 64 and 116 to 119 of UNCLOS; whether Chile’s actions relating to swordfish conservation conformed with Article 300 of UNCLOS (ibid., paras. 3(e)(f)(g)); and whether Chile and the EC remained under an obligation to negotiate a cooperative arrangement in accordance with Article 64 of UNCLOS (ibid., concluding para. 3(g)).
[22] Although the Faroe Islands are a self-governing territory under the sovereignty of Denmark, the EU Treaties do not apply to this territory. This leads to unusual consequences in the present case, as Denmark, in its capacity as the State responsible for the foreign policy of the Faroe Islands, initiated proceedings against the EU under both the WTO DSU mechanism and UNCLOS, even though Denmark is itself a member of the EU.
[23] NEAFC is a Regional Fisheries Management Organization (RFMO) established to ensure the long-term conservation and sustainable management of fishery resources in the Northeast Atlantic, including herring. For this stock, the NEAFC participants - the EU, the Faroe Islands, Iceland, Norway and the Russian Federation - agreed on a long-term fisheries management plan by establishing a total allowable catch (TAC), in line with recommendations from the International Council for the Exploration of the Sea (ICES). On that basis, the member States annually negotiate to reach agreement on a burden-sharing arrangement to divide the TAC among themselves.
[24] See Commission Implementing Regulation (EU) No 793/2013 of 20 August 2013 establishing measures in respect of the Faroe Islands to ensure the conservation of the Atlanto-Scandian herring stock. Under Article 3 of the Regulation, “controlled by the Faroe Islands” is understood as “caught by vessels flying the flag of the Faroe Islands, or vessels flying the flag of another State authorised to fish in the exclusive economic zone of the Faroe Islands or chartered by a Faroese company or agency”.
The EU initiative is based on a number of regulations aimed at preventing, deterring and eliminating illegal, unreported and unregulated fishing (IUU fishing) in EU waters as well as in the waters under the jurisdiction of third countries and on the high seas. These regulations include Council Regulation (EC) No 1005/2008 of 29 September 2008 establishing a Community system to prevent, deter and eliminate IUU fishing, and Regulation (EU) No 1026/2012 of the European Parliament and of the Council of 25 October 2012 on certain measures for the purpose of the conservation of fish stocks in relation to countries allowing non-sustainable fishing. Under Article 4(1)(a) of the latter Regulation, the Commission may apply various restrictive measures against countries allowing non-sustainable fishing, such as, among other measures, quantitative restrictions on the importation of fish controlled by that country and fishery products made of or containing that fish, as well as restrictions on the use of Union ports.
[25] On 16 August 2013, Denmark, acting on behalf of the Faroe Islands, initiated arbitration proceedings against the EU under Annex VII to UNCLOS concerning a dispute over the interpretation and application of Article 63(1) of the Convention in relation to the Atlanto-Scandian herring stock. The documents relating to the case can be found on the website of the Permanent Court of Arbitration at: pca-cpa.org/cn/cases/25.
[26] On 4 November 2013, Denmark, acting on behalf of the Faroe Islands, requested consultations with the EU under Article 4 of the DSU and Article XXIII of GATT, alleging that the EU measures violated Articles I(1), V(2) and XI(1) of GATT, which respectively provide for the most-favoured-nation (MFN) principle, freedom of transit of goods through the territories of WTO Members, and the prohibition of quantitative restrictions. See European Union-Measures on Atlanto-Scandian Herring: Request for consultations by Denmark in respect of the Faroe Islands, 7 November 2013. On 8 January 2014, Denmark requested the establishment of a Panel (European Union – Measures on Atlanto-Scandian Herring: Request for the Establishment of a Panel by Denmark in respect of the Faroe Islands, 10 January 2014), and the request was accepted by the DSB on 23 February 2014.
[27] See, respectively, Chile-Swordfish Case: Chile-Measures Affecting the Transit and Importation of Swordfish: Arrangement between the European Communities and Chile, 6 April 2001; and Conservation and Sustainable Exploitation of Swordfish Stocks (Chile/European Community), Order of 15 March 2001; and for the EU-Herring Case: European Commission, Deal on Mackerel in the North-East Atlantic, press release, 12 March 2014, available at europa.eu/rapid/press-release_IP-14-265_en.htm; and Herring dispute between European Union and Faroe Islands nears end, press release, 11 June 2014, available at europa.eu/rapid/press-release_IP-14-668_en.htm.
[28] For the Chile-Swordfish case, see: Conservation and Sustainable Exploitation of Swordfish Stocks (Chile/European Union), Order of 16 December 2009, and Chile-Measures Affecting the Transit and Importation of Swordfish: Joint Communication from the European Union and Chile, 3 June 2010. For the EU-Herring Case, von 21 August 2014, Denmark, acting on behalf of the Faroe Islands, and the European Union notified the DSB that the dispute had been resolved: see European Union-Measures on Atlanto-Scandian Herring: Jointcommunication from Denmark in respect of the Faroe Islands and the European Union, 25 August 2014. On 21 August 2014, the parties also informed the Presiding Arbitrator of the Arbitral Tribunal, which issued the order of termination on 23 September 2014: see PCA, Order of Termination.
[29] Adopted by the FAO Conference at its Thirty-sixth Session, held from 18 to 22 November 2009, FAO Doc C 2009/LIM/11 Rev.1, available at www.fao.org/fileadmin/user_upload/legal/docs/2_037t-e.pdf.
[30] Pursuant to Article 9(4), each Party shall deny entry into its ports when “there is sufficient evidence that a vessel seeking entry into port has engaged in IUU fishing or fishing-related activities in support of such fishing, including, in particular, that the vessel is included in the list of vessels having engaged in such fishing or fishing-related activities adopted by a relevant regional fisheries management organization, in accordance with the rules and procedures of such organization and in conformity with international law, the Party shall deny that vessel entry into its ports […]”. If the vessel is already in port for any reason, the port State “shall deny that vessel the use of the port for landing, transshipping, packaging and processing of fish, and for other port services including, but not limited to, refuelling and resupplying, maintenance and dry-docking” (paragraph 6).
[31] It has been argued that the Agreement on Port State Measures may be regarded as an agreement concluded by a number of WTO Members and may take precedence over WTO obligations in the relations between the parties: Auld K (2017) Trade measures to prevent illegal fishing and the WTO: an analysis of the settled Faroe Islands dispute. World Trade Review (Online):1–28, p. 3. However, as the author himself notes, WTO jurisprudence provides no basis for such a solution. See Peru – Agricultural Products (AB), para. 5.112: “the WTO agreements contain specific provisions addressing modifications, waivers or exceptions for regional trade agreements, which take precedence over the general rules of the Vienna Convention, such as Article 41”.
[32] In particular, the International Commission for the Conservation of Atlantic Tunas (ICCAT) was the first fisheries organization to recommend that its members adopt import-restrictive measures. In 1994 and 1995, the Commission adopted two Action Plan resolutions to ensure the effectiveness of the conservation programmes for Atlantic bluefin tuna (Resolution 94-3) and Atlantic swordfish (Resolution 95-13). These resolutions proposed the possibility of “recommending that the Contracting Parties adopt non-discriminatory trade restrictive measures compatible with their international obligations”. Thereafter, ICCAT adopted resolutions calling on member States to prohibit the importation of certain products from various countries (see: www.iccat.int/en/RecRes.asp).
[33] As mentioned above, para. 2.
[34] Tyler Z, Saving fisheries on the high seas: the use of trade sanctions to force compliance with multilateral fisheries agreements, Tulane Environ Law J 20:43–95, pp. 89–90 (2006), observed that the existence of a multilateral fisheries agreement specifically designed to conserve a particular fish species may provide sufficient evidence of the species’ depletability. This may be inferred by analogy from the Appellate Body’s conclusion in US–Shrimp that “the depletability of sea turtles is very difficult to controvert, as all seven recognized species of sea turtles appear on Appendix 1 of the Convention on International Trade in Endangered Species of Wild Fauna and Flora” (US–Shrimp (AB), para. 132).
[35] In this respect, to fall within the scope of Article XX(g), the measure at issue must be “relating to” the conservation of exhaustible natural resources (which only requires a close and genuine relationship between the measure under review and the conservation objective pursued) and must also be “made effective in conjunction with restrictions on domestic production or consumption”.
[36] Telesetsky A, Scuttling IUU fishing and rewarding sustainable fishing: enhancing the effectiveness of the port state measures agreement with trade-related measures, Seattle Univ Law Rev 38:1237–1270 (2015)
[37] On this issue, see Charnovitz (2002), p. 92 et seq.
[38] See US-Shrimp (AB), para. 133.
[39] Ibid. This appears to mark a significant departure from the Panel’s conclusion on extra-jurisdictional environmental regulations in US-Tuna (Mexico). In that case, the Panel held that the United States had no jurisdiction to adopt policies affecting fishing activities beyond its own jurisdiction (paragraph 5.25 et seq.). This ruling was overturned three years later, when a second Panel reviewed the EC’s complaint concerning the secondary import ban on Mexican tuna imposed by the EC. The Panel, while rejecting the Article XX justification on other grounds, stated that “it cannot [...] be said that the General Agreement prohibits absolutely measures relating to things or actions outside the territorial jurisdiction of the party imposing the measure” (see US-Tuna (EEC), paragraphs 5.15–5.16). However, neither of the two Panel reports was adopted by the Contracting Parties as legally binding solutions and therefore cannot be regarded as authoritative statements of GATT law.
[40] US-Shrimp (AB), para. 133.
[41] WTO Appellate Body, European Communities-Measures Prohibiting the Importation and Marketing of Seal Products, Report, 22 May 2014, paragraph 5.173.
[42] t has been argued that, after WTO dispute settlement bodies in EU-Seal Products acknowledged that environmental concerns may affect the public morals of citizens and consumers of the importing country, the extra-territoriality issue would become less significant. See: Young MA, Trade measures to address environmental concerns in faraway places: jurisdictional issues, Review of European, Comparative & International Environmental Law 23:302–317 (2014), arguing that the “sufficient nexus test”, though still uncertain, “will likely be easily met due to the interconnectedness of environmental issues, particularly the perception that such issues affect ‘public morals’ thanks to the development and expansion of environmental ethics” (p. 317).
[43] See US-Gasoline (AB), p. 22 and US-Shrimp (AB), paragraphs 118 et seq. In summary, the chapeau aims to prevent the abuse of the general exceptions, specifically to stop the indirect invocation of exceptions as a means to circumvent WTO obligations without a genuine intention to pursue the legitimate objectives listed in Article XX of the GATT. See also US-Shrimp (AB), paragraph 158.
[44] US-Shrimp (AB), paragraphs 156-160
[45] According to the Appellate Body, the application of this measure did not meet the standard because the United States had not engaged in “serious, across-the-board negotiations” with all affected countries before imposing the import ban (US-Shrimp (AB), paragraph 166). Specifically, the Appellate Body found that the negotiations between the United States and five South and Central American countries, which led to the conclusion of a regional treaty (the Inter-American Convention) on the conservation and management of sea turtles at the regional level, clearly demonstrated that the United States could have chosen an alternative course of action to achieve the legitimate policy objective of the measure instead of applying unilateral and non-consensual import prohibition procedures under Section 609.
[46] US-Shrimp (AB), paragraph 168. Here, the Appellate Body again referred to several instruments of international environmental law - such as the Rio Declaration on Environment and Development, Agenda 21, the Convention on Biological Diversity, and the Convention on the Conservation of Migratory Species of Wild Animals - which call for “cooperative and collaborative” efforts to address global environmental problems. Although UNCLOS is not mentioned in this paragraph, this indirectly affirms that UNCLOS may serve as an important instrument in interpreting Article XX of the GATT.
[47] Knox JH, The judicial resolution of conflicts between trade and the environment, Harv Environ Law Rev 28, pp. 41–44 (2004), according to which Regional Fisheries Management Organizations (RFMOs) and other fisheries-related environmental agreements are “well suited to meet” the criteria established under the chapeau of Article XX of the GATT.
[48]. WTO Secretariat, WTO Committee on Trade and Environment, Environmental Benefits of Removing Trade Restrictions and Distortions: The Fisheries Sector, 16 October 2000, paragraph 28. The multilateral approach to environmental protection is also supported by the 1996 report of the Committee on Trade and Environment (CTE): “The CTE supports multilateral solutions based on international cooperation and consensus as the best and most effective way for governments to address transboundary or global environmental problems.”
[49] See Ministerial Declaration adopted on 14 November 2001, Ministerial Conference, Fourth Session, Doha, 9–14 November 2001 (“Doha Ministerial Declaration”), 20 November 2001.
[50] Given the central role that UNCLOS assigns to Regional Fisheries Management Organizations (RFMOs) and Regional Fisheries Management Arrangements (RFMAs), the fact that these bodies are regarded as Multilateral Environmental Agreements (MEAs) renders the relationship between UNCLOS and the WTO in this field closely tied to the relationship between the WTO and MEAs. The UNFSA and the PSMA are also listed among the MEAs in the most recent updated version of the WTO Secretariat document entitled “Matrix on Trade Measures Pursuant to Selected Multilateral Environmental Agreements” (WTO Doc. WT/CTE/W/160/Rev.8, 9 October 2017).
[51] The 1995 Agreement on Rules of Origin - part of Annex 1A to the Agreement Establishing the WTO - provides the basic criteria for determining the origin of a given product (under Article 1, rules of origin are the “laws, regulations and administrative determinations of general application applied by any Member to determine the country of origin of goods”). The Agreement also establishes, under Article 4, the Committee on Rules of Origin (CRO), composed of representatives of each Member. The principal task of the CRO is the Harmonization Work Programme on rules of origin, the results of which are to be incorporated into the Agreement. The Programme, launched in 1995, was expected to be completed in 1998. However, due to the complexity of the issues involved in the negotiations and the divergent views of the Member States, the Programme has been extended several times and remains unfinished.
[52] Doha Ministerial Declaration, by the Negotiating Group on Rules (NGR), paragraph 28.
[53] Myers BK, Trade measures and the environment: can the WTO and UNCLOS be recon- ciled?, UCLA Journal of Environmental Law and Policy, p. 68 (2005), notes that subsidies to the fisheries sector represent “an area where WTO principles clearly support environmental protection.”
[54] This box expired on 31 December 1999, pursuant to Article 8(9) of the SCM Agreement.
[55] For several possible reasons that may explain the absence of disputes concerning fisheries subsidies, see Young MA, Fragmentation or interaction: the WTO, fisheries subsidies, and international law, World Trade Review, Cambridge University Press, pp. 487−488(2009)
[56] FAO Fisheries Report No. 293 FIPP/R293, available at: https://www.fao.org/4/x5608e/x5608e09.htm (truy cập ngày 7/4/2025).
[57] Stone CD, Too many fishing boats, too few fish: can trade laws trim subsidies and restore the balance in global fisheries? Ecology Law Quarterly, Ecology Law Quarterly, Vol. 24, No. 3, p. 525 (1997)
[58] Dostal DJ, Global fisheries subsidies: will the WTO reel in effective regulations?, University Penn Carey Law Journals, Vol. 26, No. 4, pp. 815–839 (2005)
[59] Ministerial Declaration adopted on 18 December 2005, Sixth Session of the Ministerial Conference, Hong Kong, 13–18 December 2005, 22 December 2005, Annex D, paragraph 9.
[60] See Sustainable Development Goal 14.6, 21 October 2015.
[61] See WTO document TN/RL/W/273, 28 July 2017.
[62] See https://www.wto.org/english/news_e/news17_e/fish_03nov17_e.htm
[63] See Ministerial Decision on Fisheries Subsidies, 13 December 2017, 18 December 2017.
