327
consequences reliance on UNCLOS for interpretative purposes would be allowed.
Anyway, it should be stressed that in the case at hand—as the Appellate Body itself
highlighted in a footnote—the taking cognisance of UNCLOS was not impeded by
the fact that not only not all WTO Member States, but not even all the litigant States
were parties to UNCLOS.
22
3 The Relevance of External Treaties for the Interpretation
of WTO Law
In the subsequent practice, the WTO dispute settlement organs have further elaborated on the relevance of other treaties to the interpretation of WTO law. A rather
conservative approach was taken by the Panel in the EC-Biotech Case, involving the
EC de facto moratorium on approvals of genetically-modified products.
23
In order
to defend its import ban, the EC alleged inter alia that the 2000 Cartagena Protocol
on Biosafety to the Convention on Biological Diversity had affected the scope of
Art. 5(7) of the WTO Agreement on the Application of Sanitary and Phytosanitary
Measures (SPS Agreement).
24
Accordingly, the Panel was seized of the issue
whether the Cartagena Protocol could be considered for purposes of interpretation
of the relevant WTO obligations, albeit the complainants (as well as other WTO
Members) were not parties of that treaty.
25
The Panel focused on the principle of
systemic integration, as incorporated in Art. 31(3)(c) VCLT, which calls for treaties
to be interpreted taking into account any relevant rules of international law “applicable in the relations between the parties”.
26
Nevertheless, it placed considerable
limitations on the scope of this provision, since it construed it as requiring consideration only of those rules of international law which are applicable in the relations
22 US-Shrimp (AB), footnote 110.
23 WTO Panel, European Communities-Measures Affecting the Approval and Marketing of Biotech
Products, Report, 29 September 2006 (EC-Biotech Panel report), para. 7.51 ff. For more details on
this dispute see Neff (2005), Conrad (2007), Prévost (2007), Young (2007), and McGrady (2008).
24 Specifically, the EC maintained that “the Biosafety Protocol and the SPS Agreement […] are so
closely connected that they should be interpreted and applied consistently with each other, to the
extent that is possible” and that “the Protocol’s provisions on precaution and risk assessment
inform the meaning and effect of the relevant provisions of the WTO agreements”: EC-Biotech
Panel report, para. 7.55.
25 Indeed, among the parties to the dispute, the EC only was bound by the Cartagena Protocol.
Argentina and Canada had not ratified the Protocol, while the United States had not even signed it:
see ibidem, para. 7.53.
26 Therefore, when more than one meaning can be attached to a certain provision, it has to be chosen the one which is “more in accord with other applicable rules of international law”: ibidem,
para. 7.69. Many scholars consider Art. 31(3)(c) to be a useful device for ensuring a more environmentally friendly interpretation of WTO. It follows that considerable attention has been devoted to
the analysis of the meaning of this provision. See, for a synthetic overview of the different proposed readings of Art. 31(3)(c), particularly with regard to the significance to be given to the term
‘the parties’, Lennard (2002), pp. 36−37.
The Relationship Between International Trade Law and the Law of the Sea in the WTO…
consequences reliance on UNCLOS for interpretative purposes would be allowed.
Anyway, it should be stressed that in the case at hand—as the Appellate Body itself
highlighted in a footnote—the taking cognisance of UNCLOS was not impeded by
the fact that not only not all WTO Member States, but not even all the litigant States
were parties to UNCLOS.
22
3 The Relevance of External Treaties for the Interpretation
of WTO Law
In the subsequent practice, the WTO dispute settlement organs have further elaborated on the relevance of other treaties to the interpretation of WTO law. A rather
conservative approach was taken by the Panel in the EC-Biotech Case, involving the
EC de facto moratorium on approvals of genetically-modified products.
23
In order
to defend its import ban, the EC alleged inter alia that the 2000 Cartagena Protocol
on Biosafety to the Convention on Biological Diversity had affected the scope of
Art. 5(7) of the WTO Agreement on the Application of Sanitary and Phytosanitary
Measures (SPS Agreement).
24
Accordingly, the Panel was seized of the issue
whether the Cartagena Protocol could be considered for purposes of interpretation
of the relevant WTO obligations, albeit the complainants (as well as other WTO
Members) were not parties of that treaty.
25
The Panel focused on the principle of
systemic integration, as incorporated in Art. 31(3)(c) VCLT, which calls for treaties
to be interpreted taking into account any relevant rules of international law “applicable in the relations between the parties”.
26
Nevertheless, it placed considerable
limitations on the scope of this provision, since it construed it as requiring consideration only of those rules of international law which are applicable in the relations
22 US-Shrimp (AB), footnote 110.
23 WTO Panel, European Communities-Measures Affecting the Approval and Marketing of Biotech
Products, Report, 29 September 2006 (EC-Biotech Panel report), para. 7.51 ff. For more details on
this dispute see Neff (2005), Conrad (2007), Prévost (2007), Young (2007), and McGrady (2008).
24 Specifically, the EC maintained that “the Biosafety Protocol and the SPS Agreement […] are so
closely connected that they should be interpreted and applied consistently with each other, to the
extent that is possible” and that “the Protocol’s provisions on precaution and risk assessment
inform the meaning and effect of the relevant provisions of the WTO agreements”: EC-Biotech
Panel report, para. 7.55.
25 Indeed, among the parties to the dispute, the EC only was bound by the Cartagena Protocol.
Argentina and Canada had not ratified the Protocol, while the United States had not even signed it:
see ibidem, para. 7.53.
26 Therefore, when more than one meaning can be attached to a certain provision, it has to be chosen the one which is “more in accord with other applicable rules of international law”: ibidem,
para. 7.69. Many scholars consider Art. 31(3)(c) to be a useful device for ensuring a more environmentally friendly interpretation of WTO. It follows that considerable attention has been devoted to
the analysis of the meaning of this provision. See, for a synthetic overview of the different proposed readings of Art. 31(3)(c), particularly with regard to the significance to be given to the term
‘the parties’, Lennard (2002), pp. 36−37.
The Relationship Between International Trade Law and the Law of the Sea in the WTO…