330
balancing approach that leaves greater room for the possibility, under certain circumstances (that unfortunately the Appellate Body did not clarify), that multilateral
treaties to which not all WTO Member States are parties, including UNCLOS, may
have a bearing on the interpretation of WTO rules.
4 Overlapping Jurisdictions Between UNCLOS and WTO:
The Chile-Swordfish Case and the EU-Herring Dispute
Though the implications of the reference to UNCLOS in the Appellate Body’s
report on US-Shrimp extend well beyond that case (since that report marked the first
significant attempt by a WTO dispute settlement body to integrate environmental
considerations into trade law), the fact remains that UNCLOS has so far occupied a
totally marginal place in the WTO case-law.
The paucity of references to UNCLOS in the WTO case-law stands in sharp
contrast with the multiplicity of possible interferences and overlaps between the law
of the sea and international trade law, some of which are currently being discussed
in the framework of the ongoing Doha Development Agenda launched at the WTO’s
Fourth Ministerial Conference in November 2001.
35
In particular, the relations between the UNCLOS rules relating to the exploitation, conservation and management of marine living resources and the GATT rules
forbidding trade-restrictive measures appear to be the most critical area of potential
conflict.
36
In this realm, the topic of the interactions between WTO and UNCLOS
clearly fits into the broader dialectic between free trade and environmental protection.
37
Indeed, there exists an intrinsic contradiction between the overall aim of
UNCLOS to promote the equitable and efficient utilization of the resources of the
seas and the policies of liberalization of international trade (including trade of fish
and fisheries products) supported by the WTO.
38
35 See infra, para. 6.
36 See McLaughlin (1997), Guruswamy (1998a, b), and Myers (2005). Already in the GATT era,
four panel proceedings involved the examination of environmental measures aimed at the protection of certain fish stocks: see GATT Panel, US-Canadian Tuna; Canada-Salmon and Herring;
US-Tuna (Mexico) (United States-Restrictions on Imports of Tuna, Reports, not adopted, circulated on 3 September 1991) and US-Tuna (EEC).
37 The issue of the relationship between international trade and the environment has given rise to an
extensive scholarly debate over the last years. See for instance, among many others, Jackson
(1992), Schoenbaum (1992), Charnovitz (1994), and Knox (2004).
38 In this framework, also other international instruments should be considered as complementing
the UNCLOS fisheries regime. Articles 64 and 118 UNCLOS, by requiring States to cooperate
with each other in the conservation and management of living resources, foresees the setting-up,
where appropriate, of sub-regional or regional fisheries management organisations or arrangements. These organisations and arrangements have been widely established and currently represent
the main instruments for achieving cooperation among States in the governance of transboundary
fisheries. Also the 1995 Agreement for the Implementation of the Provisions of the United Nations
Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and
M. I. Papa
balancing approach that leaves greater room for the possibility, under certain circumstances (that unfortunately the Appellate Body did not clarify), that multilateral
treaties to which not all WTO Member States are parties, including UNCLOS, may
have a bearing on the interpretation of WTO rules.
4 Overlapping Jurisdictions Between UNCLOS and WTO:
The Chile-Swordfish Case and the EU-Herring Dispute
Though the implications of the reference to UNCLOS in the Appellate Body’s
report on US-Shrimp extend well beyond that case (since that report marked the first
significant attempt by a WTO dispute settlement body to integrate environmental
considerations into trade law), the fact remains that UNCLOS has so far occupied a
totally marginal place in the WTO case-law.
The paucity of references to UNCLOS in the WTO case-law stands in sharp
contrast with the multiplicity of possible interferences and overlaps between the law
of the sea and international trade law, some of which are currently being discussed
in the framework of the ongoing Doha Development Agenda launched at the WTO’s
Fourth Ministerial Conference in November 2001.
35
In particular, the relations between the UNCLOS rules relating to the exploitation, conservation and management of marine living resources and the GATT rules
forbidding trade-restrictive measures appear to be the most critical area of potential
conflict.
36
In this realm, the topic of the interactions between WTO and UNCLOS
clearly fits into the broader dialectic between free trade and environmental protection.
37
Indeed, there exists an intrinsic contradiction between the overall aim of
UNCLOS to promote the equitable and efficient utilization of the resources of the
seas and the policies of liberalization of international trade (including trade of fish
and fisheries products) supported by the WTO.
38
35 See infra, para. 6.
36 See McLaughlin (1997), Guruswamy (1998a, b), and Myers (2005). Already in the GATT era,
four panel proceedings involved the examination of environmental measures aimed at the protection of certain fish stocks: see GATT Panel, US-Canadian Tuna; Canada-Salmon and Herring;
US-Tuna (Mexico) (United States-Restrictions on Imports of Tuna, Reports, not adopted, circulated on 3 September 1991) and US-Tuna (EEC).
37 The issue of the relationship between international trade and the environment has given rise to an
extensive scholarly debate over the last years. See for instance, among many others, Jackson
(1992), Schoenbaum (1992), Charnovitz (1994), and Knox (2004).
38 In this framework, also other international instruments should be considered as complementing
the UNCLOS fisheries regime. Articles 64 and 118 UNCLOS, by requiring States to cooperate
with each other in the conservation and management of living resources, foresees the setting-up,
where appropriate, of sub-regional or regional fisheries management organisations or arrangements. These organisations and arrangements have been widely established and currently represent
the main instruments for achieving cooperation among States in the governance of transboundary
fisheries. Also the 1995 Agreement for the Implementation of the Provisions of the United Nations
Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and
M. I. Papa