323
which the reference to UNCLOS contained in the Appellate Body’s US-Shrimp
report should be also viewed.
The next section will examine the legal meaning and implications of the mention
of UNCLOS in the US-Shrimp report. As we will see, the report does not shed light
on the legal basis of the interpretative method employed by the Appellate Body in
that case. For this reason, in the following section we will look at the subsequent
case-law in order to assess whether and possibly how the approach of the WTO
dispute settlement organs to the issue of the relevance of external international law
in the WTO system has evolved.
The ensuing section will focus on the possibility of overlap between the law of
the sea and international trade law. Two cases in which a risk of collision between
the two set of norms occurred will be analysed: the Swordfish dispute between the
European Community and Chile and the Atlanto-Scandian Herring dispute between
the Faroe Islands and the European Union. Both these cases involved fisheries conservation measures seemingly at odds with the WTO rules, in particular with the
prohibition to institute quantitative restrictions under Art. XI GATT. Even though
both cases were ultimately settled by amicable means before being adjudicated, the
question has arisen as to the emergence of inconsistencies between UNCLOS and
WTO law.
In this kind of situations, the general exceptions clause of Art. XX GATT can
certainly play a role of coordination between the two regimes. Therefore, the issue
of the applicability of Art. XX GATT as a legal tool for solving possible inconsistencies between the law of the sea and international trade law will be dealt with in
Sect. 5. As it will be shown, the most recent case-law reveals an increasing willingness of WTO dispute settlement bodies to accept environmental regulations under
Art. XX GATT. This may open the door for considering GATT-inconsistent measures aimed at the conservation of fisheries both within national jurisdiction or on
the high seas as justified under the WTO law, provided that the requirements of Art.
XX GATT, as articulated in the WTO case-law, have been fulfilled.
The final section of this essay will address the implications of the current WTO
negotiations (the Doha Development Round) for the relationship between UNCLOS
and WTO. In particular, the fisheries subsidies debate deserves specific attention in
view of the linkages between fisheries subsidies and illegal, unreported and unregulated (IUU) fishing. In this realm, the WTO objective of liberalising and ensuring
fair competition in the fish global market and the UNCLOS aim of combating IUU
fishing may converge on the need to remove these measures. As a result, while
recent developments have generally increased the potential for conflict between the
two regimes, fisheries subsidies talks may represent a unique opportunity for
UNCLOS and WTO to realise a joint and mutually supportive contribution to sustainable development.
of Treaties—hereafter VCLT) consideration can be given to relevant substantive rules of international law when interpreting treaties. Nevertheless, it is unclear to what extent and under what
conditions external international rules can be taken into account: see infra, para. 3. For an in depth
analysis and discussion of potential interactions between the WTO Agreement and other treaty
rules see Picone and Ligustro (2002), p. 634 ff., especially p. 640 ff.
The Relationship Between International Trade Law and the Law of the Sea in the WTO…
which the reference to UNCLOS contained in the Appellate Body’s US-Shrimp
report should be also viewed.
The next section will examine the legal meaning and implications of the mention
of UNCLOS in the US-Shrimp report. As we will see, the report does not shed light
on the legal basis of the interpretative method employed by the Appellate Body in
that case. For this reason, in the following section we will look at the subsequent
case-law in order to assess whether and possibly how the approach of the WTO
dispute settlement organs to the issue of the relevance of external international law
in the WTO system has evolved.
The ensuing section will focus on the possibility of overlap between the law of
the sea and international trade law. Two cases in which a risk of collision between
the two set of norms occurred will be analysed: the Swordfish dispute between the
European Community and Chile and the Atlanto-Scandian Herring dispute between
the Faroe Islands and the European Union. Both these cases involved fisheries conservation measures seemingly at odds with the WTO rules, in particular with the
prohibition to institute quantitative restrictions under Art. XI GATT. Even though
both cases were ultimately settled by amicable means before being adjudicated, the
question has arisen as to the emergence of inconsistencies between UNCLOS and
WTO law.
In this kind of situations, the general exceptions clause of Art. XX GATT can
certainly play a role of coordination between the two regimes. Therefore, the issue
of the applicability of Art. XX GATT as a legal tool for solving possible inconsistencies between the law of the sea and international trade law will be dealt with in
Sect. 5. As it will be shown, the most recent case-law reveals an increasing willingness of WTO dispute settlement bodies to accept environmental regulations under
Art. XX GATT. This may open the door for considering GATT-inconsistent measures aimed at the conservation of fisheries both within national jurisdiction or on
the high seas as justified under the WTO law, provided that the requirements of Art.
XX GATT, as articulated in the WTO case-law, have been fulfilled.
The final section of this essay will address the implications of the current WTO
negotiations (the Doha Development Round) for the relationship between UNCLOS
and WTO. In particular, the fisheries subsidies debate deserves specific attention in
view of the linkages between fisheries subsidies and illegal, unreported and unregulated (IUU) fishing. In this realm, the WTO objective of liberalising and ensuring
fair competition in the fish global market and the UNCLOS aim of combating IUU
fishing may converge on the need to remove these measures. As a result, while
recent developments have generally increased the potential for conflict between the
two regimes, fisheries subsidies talks may represent a unique opportunity for
UNCLOS and WTO to realise a joint and mutually supportive contribution to sustainable development.
of Treaties—hereafter VCLT) consideration can be given to relevant substantive rules of international law when interpreting treaties. Nevertheless, it is unclear to what extent and under what
conditions external international rules can be taken into account: see infra, para. 3. For an in depth
analysis and discussion of potential interactions between the WTO Agreement and other treaty
rules see Picone and Ligustro (2002), p. 634 ff., especially p. 640 ff.
The Relationship Between International Trade Law and the Law of the Sea in the WTO…