322
1 Introduction
The extent of the contribution given by the Dispute Settlement Body (DSB) of the
World Trade Organization (WTO)
1
to the interpretation of the United Nations
Convention on the Law of the Sea (UNCLOS) may appear at a first sight disappointing. Indeed, only one reference to UNCLOS can be found in the WTO case-law.
This is contained in a celebrated, but rather outdated, Appellate Body’s decision,
namely the 1998 US-Shrimp report.
2
Moreover, strictly speaking, it would be inappropriate to consider this case as an example of interpretation of the UNCLOS rules
by the WTO dispute settlement organs. Rather, the Appellate Body used UNCLOS
in order to interpret WTO rules, specifically Art. XX of the General Agreement on
Tariff and Trade (GATT), a provision that played a central role in the aforementioned dispute.
The lack of interest of the WTO adjudicating bodies in UNCLOS should not be
surprising, as it is clearly due to the limited scope of the WTO dispute settlement
system under Art. 3(1) of the Understanding on Rules and Procedures Governing
the Settlement of Disputes (DSU), which only covers disputes relating to the interpretation and application of WTO rules.
3
Consequently, the DSB’s jurisdiction does
not directly extend to the interpretation and application of treaties other than those
contained in the WTO Agreement (such as UNCLOS).
It is not the aim of this essay to enter the long-standing debate on the purported
self-contained nature of the WTO system.
4
However, leaving aside for a moment the
question whether the WTO dispute settlement bodies may apply or enforce WTOexternal law—either of customary or of conventional nature—, such as the rules
pertaining to the law of the sea,
5
it is clear that the more likely prospect is that these
bodies will use external international law sources—including UNCLOS—for the
purpose of interpreting WTO law.
6
As I have anticipated, this is the perspective in
1 Marrakesh Agreement Establishing the World Trade Organization (WTO Agreement) of 15 April
1994.
2 WTO Appellate Body, United States-Import Prohibition of Certain Shrimps and Shrimp Products
(US-Shrimp (AB)), Report, 12 October 1998, para. 168. For some comments on this case see Brack
(1998), Qureshi (1999), Simmons (1999), Dailey (2000), Howse (2002), Chang (2005), and Kelly
(2005).
3 Art. 1 of the DSU provides that the rules and procedures of the DSU shall apply to disputes
between Members concerning their rights and obligations under the provisions of the WTO
Agreement.
4 Therefore, the issues as to whether and to what extent WTO constitutes a closed system will not
be addressed as such in this essay. A large body of literature is devoted to this topic. See, among
many others, Kuijper (1994), Pauwelyn (2003), Lindroos and Mehling (2005), and Gradoni (2009).
5 For differing views on the point see, ex multis, Trachtman (1999), Marceau (1999), p. 110; Bartels
(2001), and Pauwelyn (2001).
6 According to Art. 3(2) DSU, “the dispute settlement system of the WTO […] serves to preserve
the rights and obligations of Members under the covered agreements, and to clarify the existing
provisions of those agreements in accordance with customary rules of interpretation of public
international law” (emphasis added). It is generally accepted that under customary international
rules on treaty interpretation (part of which is reflected in the 1969 Vienna Convention on the Law
M. I. Papa
1 Introduction
The extent of the contribution given by the Dispute Settlement Body (DSB) of the
World Trade Organization (WTO)
1
to the interpretation of the United Nations
Convention on the Law of the Sea (UNCLOS) may appear at a first sight disappointing. Indeed, only one reference to UNCLOS can be found in the WTO case-law.
This is contained in a celebrated, but rather outdated, Appellate Body’s decision,
namely the 1998 US-Shrimp report.
2
Moreover, strictly speaking, it would be inappropriate to consider this case as an example of interpretation of the UNCLOS rules
by the WTO dispute settlement organs. Rather, the Appellate Body used UNCLOS
in order to interpret WTO rules, specifically Art. XX of the General Agreement on
Tariff and Trade (GATT), a provision that played a central role in the aforementioned dispute.
The lack of interest of the WTO adjudicating bodies in UNCLOS should not be
surprising, as it is clearly due to the limited scope of the WTO dispute settlement
system under Art. 3(1) of the Understanding on Rules and Procedures Governing
the Settlement of Disputes (DSU), which only covers disputes relating to the interpretation and application of WTO rules.
3
Consequently, the DSB’s jurisdiction does
not directly extend to the interpretation and application of treaties other than those
contained in the WTO Agreement (such as UNCLOS).
It is not the aim of this essay to enter the long-standing debate on the purported
self-contained nature of the WTO system.
4
However, leaving aside for a moment the
question whether the WTO dispute settlement bodies may apply or enforce WTOexternal law—either of customary or of conventional nature—, such as the rules
pertaining to the law of the sea,
5
it is clear that the more likely prospect is that these
bodies will use external international law sources—including UNCLOS—for the
purpose of interpreting WTO law.
6
As I have anticipated, this is the perspective in
1 Marrakesh Agreement Establishing the World Trade Organization (WTO Agreement) of 15 April
1994.
2 WTO Appellate Body, United States-Import Prohibition of Certain Shrimps and Shrimp Products
(US-Shrimp (AB)), Report, 12 October 1998, para. 168. For some comments on this case see Brack
(1998), Qureshi (1999), Simmons (1999), Dailey (2000), Howse (2002), Chang (2005), and Kelly
(2005).
3 Art. 1 of the DSU provides that the rules and procedures of the DSU shall apply to disputes
between Members concerning their rights and obligations under the provisions of the WTO
Agreement.
4 Therefore, the issues as to whether and to what extent WTO constitutes a closed system will not
be addressed as such in this essay. A large body of literature is devoted to this topic. See, among
many others, Kuijper (1994), Pauwelyn (2003), Lindroos and Mehling (2005), and Gradoni (2009).
5 For differing views on the point see, ex multis, Trachtman (1999), Marceau (1999), p. 110; Bartels
(2001), and Pauwelyn (2001).
6 According to Art. 3(2) DSU, “the dispute settlement system of the WTO […] serves to preserve
the rights and obligations of Members under the covered agreements, and to clarify the existing
provisions of those agreements in accordance with customary rules of interpretation of public
international law” (emphasis added). It is generally accepted that under customary international
rules on treaty interpretation (part of which is reflected in the 1969 Vienna Convention on the Law
M. I. Papa