325
standards would reflect the intention of the GATT drafters to make it less complicated under the GATT to protect natural resources then human and animal health.
11
The Appellate Body rejected the said interpretation of the notion of “exhaustible
natural resources”, holding that even living species, “though in principle, capable of
reproduction”, may be in certain circumstances “susceptible of depletion, exhaustion, extinction, frequently because of human activities”.
12
In this connection, it first
noted that, textually, living natural resources are not excluded from the scope of Art.
XX(g).
13
Then it stressed the need for a dynamic and evolutionary reading of Art.
XX GATT, “in the light of contemporary concerns of the community of nations
about the protection and conservation of the environment”,
14
as evidenced inter alia
by the explicit acknowledgement of the objective of sustainable development in the
Preamble of the WTO Agreement.
15
The Appellate Body also considered it pertinent
to remark the existence of a range of modern international conventions and declarations that refer to natural resources as encompassing both living and non-living
resources.
16
It was at that point that the Appellate Body, in order to support its view
that the expression “natural resources” had evolved since the original GATT 1947
to embrace living and non-living resources, cited the Montego Bay Convention, in
report that for the first time plainly distinguished the standards of review provided by these provisions, holding that they presuppose a different kind or degree of connection between the measure
under scrutiny and the government’s policy goal. See WTO Appellate Body, United StatesStandards for Reformulated and Conventional Gasoline (US-Gasoline (AB)), Report, 29 April
1996, p. 17 ff. See also infra, note 62.
11 WTO Panel, United States-Import Prohibition of Certain Shrimp and Shrimp Products
(US-Shrimp Panel Report), Report, 15 May 1998, para. 3.237 ff.
12 US-Shrimp (AB), para. 128.
13 Ibidem.
14 Ibidem, para. 129. The Appellate Body also cited, in support of this interpretative approach, the
ICJ advisory opinion on the Legal consequences for States of the continued presence of South
Africa in Namibia (South West Africa), notwithstanding Security Council resolution 276(1970),
where the ICJ maintained that when treaties contain concepts that are not static, but by definition
evolutionary, the interpretation of these concepts “cannot remain unaffected by the subsequent
development of law” (see footnote 109).
15 Ibidem, para. 130.
16 The Appellate Body also referred to the 1992 Convention on Biological Diversity, done at Rio de
Janeiro on 5 June 1992 (UNEP/Bio.Div./N7-INC5/4), the Agenda 21 adopted by the United
Nations Conference on Environment and Development, 14 June 1992 (UN Doc. A/CONF. 151/26/
Rev.1) and the Resolution on Assistance to Developing Countries, adopted on 23 June 1979, in
conjunction with the Convention on the Conservation of Migratory Species of Wild Animals, done
at Bonn on 23 June 1979. The Appellate Body also took in consideration many external instruments both of soft and hard law when dealing with the consistency of the challenged measures with
the requirements of the introductory clause of Art. XX (see infra, para. 5). The Appellate Body
ultimately ruled that these measures, though provisionally justified under Art. XX(g), constituted
unjustifiable discrimination, because the United States did not make any bona fide effort to negotiate with the complainants. It grounded its finding, among others, on the fact that several international instruments require a multilateral approach to address global environmental problems: see
US-Shrimp (AB), para. 168 (mentioning the Rio Declaration on Environment and Development,
the Agenda 21, the Convention on Biological Diversity and the Convention on the Conservation of
Migratory Species of Wild Animals).
The Relationship Between International Trade Law and the Law of the Sea in the WTO…
standards would reflect the intention of the GATT drafters to make it less complicated under the GATT to protect natural resources then human and animal health.
11
The Appellate Body rejected the said interpretation of the notion of “exhaustible
natural resources”, holding that even living species, “though in principle, capable of
reproduction”, may be in certain circumstances “susceptible of depletion, exhaustion, extinction, frequently because of human activities”.
12
In this connection, it first
noted that, textually, living natural resources are not excluded from the scope of Art.
XX(g).
13
Then it stressed the need for a dynamic and evolutionary reading of Art.
XX GATT, “in the light of contemporary concerns of the community of nations
about the protection and conservation of the environment”,
14
as evidenced inter alia
by the explicit acknowledgement of the objective of sustainable development in the
Preamble of the WTO Agreement.
15
The Appellate Body also considered it pertinent
to remark the existence of a range of modern international conventions and declarations that refer to natural resources as encompassing both living and non-living
resources.
16
It was at that point that the Appellate Body, in order to support its view
that the expression “natural resources” had evolved since the original GATT 1947
to embrace living and non-living resources, cited the Montego Bay Convention, in
report that for the first time plainly distinguished the standards of review provided by these provisions, holding that they presuppose a different kind or degree of connection between the measure
under scrutiny and the government’s policy goal. See WTO Appellate Body, United StatesStandards for Reformulated and Conventional Gasoline (US-Gasoline (AB)), Report, 29 April
1996, p. 17 ff. See also infra, note 62.
11 WTO Panel, United States-Import Prohibition of Certain Shrimp and Shrimp Products
(US-Shrimp Panel Report), Report, 15 May 1998, para. 3.237 ff.
12 US-Shrimp (AB), para. 128.
13 Ibidem.
14 Ibidem, para. 129. The Appellate Body also cited, in support of this interpretative approach, the
ICJ advisory opinion on the Legal consequences for States of the continued presence of South
Africa in Namibia (South West Africa), notwithstanding Security Council resolution 276(1970),
where the ICJ maintained that when treaties contain concepts that are not static, but by definition
evolutionary, the interpretation of these concepts “cannot remain unaffected by the subsequent
development of law” (see footnote 109).
15 Ibidem, para. 130.
16 The Appellate Body also referred to the 1992 Convention on Biological Diversity, done at Rio de
Janeiro on 5 June 1992 (UNEP/Bio.Div./N7-INC5/4), the Agenda 21 adopted by the United
Nations Conference on Environment and Development, 14 June 1992 (UN Doc. A/CONF. 151/26/
Rev.1) and the Resolution on Assistance to Developing Countries, adopted on 23 June 1979, in
conjunction with the Convention on the Conservation of Migratory Species of Wild Animals, done
at Bonn on 23 June 1979. The Appellate Body also took in consideration many external instruments both of soft and hard law when dealing with the consistency of the challenged measures with
the requirements of the introductory clause of Art. XX (see infra, para. 5). The Appellate Body
ultimately ruled that these measures, though provisionally justified under Art. XX(g), constituted
unjustifiable discrimination, because the United States did not make any bona fide effort to negotiate with the complainants. It grounded its finding, among others, on the fact that several international instruments require a multilateral approach to address global environmental problems: see
US-Shrimp (AB), para. 168 (mentioning the Rio Declaration on Environment and Development,
the Agenda 21, the Convention on Biological Diversity and the Convention on the Conservation of
Migratory Species of Wild Animals).
The Relationship Between International Trade Law and the Law of the Sea in the WTO…