326
particular its Art. 56 (defining the rights, jurisdiction and duties of the coastal State
in the Exclusive Economic Zones (EEZ), including the latter’s rights for the purpose
of exploring and exploiting, conserving and managing the “natural resources,
whether living or non-living”), and Articles 61 and 62 (specifying the rights and
duties of States as regards the conservation and utilization of the living resources in
their EEZ).
17
Therefore, the Appellate Body resorted to UNCLOS (as well as the
other international instruments on environmental protection quoted in the relevant
passage of its report) as a supplementary means of interpretation for the purpose of
confirming a finding it had already reached under other grounds.
18
The Appellate Body report on US-Shrimp marked an important precedent for the
idea (which the Appellate Body had already expressed in the 1996 US–Gasoline
Case)
19
that WTO law “is not to be read in clinical isolation” from other public
international law rules. Nevertheless, the Appellate Body did not interpret nor apply
UNCLOS. It relied on the mere existence of this instrument in order to justify a
particular reading of Art. XX GATT.
20
Moreover, it is worth noting that, by using
UNCLOS to ascertain the meaning of the expression “exhaustible natural resources”
enshrined in Art. XX GATT, the Appellate Body did not provide any precise legal
framework for this interpretative approach. It did not even mention Art. 31 VCLT,
which is widely regarded as reflecting customary international law on the interpretation of treaties,
21
neither did it clarify under what conditions and with what legal
17 Ibidem, para. 130. For a criticism of this approach see Kelly (2005), p. 474, holding that “[t]he
faulty premise of the AB’s entire analysis of XX(g) is that community concerns about environmental protection in one treaty context indicate an evolving community position in another about what
measures are exempt from GATT obligations”.
18 Nevertheless, it should be noted that, as the Appellate Body itself pointed out (US-Shrimp (AB),
para. 131), in the GATT case-law, fish species had already been considered as an “exhaustible
natural resource”: this was the case with regards to tuna stocks, including albacore tuna, in the
US-Canadian Tuna Case (GATT Panel, United States-Prohibition of Imports of Tuna and Tuna
Products from Canada, Report, 22 February 1982, para. 4.9); salmon and herring stocks in the
Canada-Salmon and Herring Case (GATT Panel, Canada-Measures Affecting Exports of
Unprocessed Herring and Salmon, Report, 22 March 1988, para. 4.4). See also the US-Tuna (EEC)
report, where the Panel conceded that “a policy to conserve dolphins was a policy to conserve an
exhaustible natural resource” (GATT Panel, United States-Restrictions on Imports of Tuna, Report,
not adopted, circulated on 16 June 1994, para. 5.13).
19 US-Gasoline (AB), p. 17. The Appellate Body also underlined that “in the preamble to the WTO
Agreement and in the Decision on Trade and Environment [adopted by Ministers at the Meeting of
the Trade Negotiations Committee in Marrakesh on 14 April 1994], there is specific acknowledgement to be found about the importance of coordinating policies on trade and the environment.
WTO Members have a large measure of autonomy to determine their own policies on the environment (including its relationship with trade), their environmental objectives and the environmental
legislation they enact and implement. So far as concerns the WTO, that autonomy is circumscribed
only by the need to respect the requirements of the General Agreement and the other covered
agreements” (ibidem, p. 30).
20 See Yearwood (2012), p. 199.
21 The customary status of the general rule of interpretation in Art. 31 VCLT is well established in
the practice of the WTO dispute settlement bodies since the Appellate Body report on US-Gasoline.
See US-Gasoline (AB), p. 17.
M. I. Papa
particular its Art. 56 (defining the rights, jurisdiction and duties of the coastal State
in the Exclusive Economic Zones (EEZ), including the latter’s rights for the purpose
of exploring and exploiting, conserving and managing the “natural resources,
whether living or non-living”), and Articles 61 and 62 (specifying the rights and
duties of States as regards the conservation and utilization of the living resources in
their EEZ).
17
Therefore, the Appellate Body resorted to UNCLOS (as well as the
other international instruments on environmental protection quoted in the relevant
passage of its report) as a supplementary means of interpretation for the purpose of
confirming a finding it had already reached under other grounds.
18
The Appellate Body report on US-Shrimp marked an important precedent for the
idea (which the Appellate Body had already expressed in the 1996 US–Gasoline
Case)
19
that WTO law “is not to be read in clinical isolation” from other public
international law rules. Nevertheless, the Appellate Body did not interpret nor apply
UNCLOS. It relied on the mere existence of this instrument in order to justify a
particular reading of Art. XX GATT.
20
Moreover, it is worth noting that, by using
UNCLOS to ascertain the meaning of the expression “exhaustible natural resources”
enshrined in Art. XX GATT, the Appellate Body did not provide any precise legal
framework for this interpretative approach. It did not even mention Art. 31 VCLT,
which is widely regarded as reflecting customary international law on the interpretation of treaties,
21
neither did it clarify under what conditions and with what legal
17 Ibidem, para. 130. For a criticism of this approach see Kelly (2005), p. 474, holding that “[t]he
faulty premise of the AB’s entire analysis of XX(g) is that community concerns about environmental protection in one treaty context indicate an evolving community position in another about what
measures are exempt from GATT obligations”.
18 Nevertheless, it should be noted that, as the Appellate Body itself pointed out (US-Shrimp (AB),
para. 131), in the GATT case-law, fish species had already been considered as an “exhaustible
natural resource”: this was the case with regards to tuna stocks, including albacore tuna, in the
US-Canadian Tuna Case (GATT Panel, United States-Prohibition of Imports of Tuna and Tuna
Products from Canada, Report, 22 February 1982, para. 4.9); salmon and herring stocks in the
Canada-Salmon and Herring Case (GATT Panel, Canada-Measures Affecting Exports of
Unprocessed Herring and Salmon, Report, 22 March 1988, para. 4.4). See also the US-Tuna (EEC)
report, where the Panel conceded that “a policy to conserve dolphins was a policy to conserve an
exhaustible natural resource” (GATT Panel, United States-Restrictions on Imports of Tuna, Report,
not adopted, circulated on 16 June 1994, para. 5.13).
19 US-Gasoline (AB), p. 17. The Appellate Body also underlined that “in the preamble to the WTO
Agreement and in the Decision on Trade and Environment [adopted by Ministers at the Meeting of
the Trade Negotiations Committee in Marrakesh on 14 April 1994], there is specific acknowledgement to be found about the importance of coordinating policies on trade and the environment.
WTO Members have a large measure of autonomy to determine their own policies on the environment (including its relationship with trade), their environmental objectives and the environmental
legislation they enact and implement. So far as concerns the WTO, that autonomy is circumscribed
only by the need to respect the requirements of the General Agreement and the other covered
agreements” (ibidem, p. 30).
20 See Yearwood (2012), p. 199.
21 The customary status of the general rule of interpretation in Art. 31 VCLT is well established in
the practice of the WTO dispute settlement bodies since the Appellate Body report on US-Gasoline.
See US-Gasoline (AB), p. 17.
M. I. Papa