331
The potential for incoherence between trade and fisheries law is well illustrated
by two cases concerning restrictive measures, aimed at ensuring the conservation
and promoting the optimum utilisation of highly migratory fish species, which
raised issues of inconsistency with the GATT. In both cases competing trade and
conservation issues were brought before the WTO DSB and the International
Tribunal on the Law of the Sea (ITLOS).
39
The first is a dispute—known as Swordfish Case
40
—between the EC and Chile,
stemming from Chile’s decision to prohibit the unloading and transit in its ports of
swordfish catches, taken from the high seas adjacent to its EEZ, in breach of its legislation on the conservation and sustainable exploitation of this fish species.
41
On that
basis, Spanish fishing vessels were denied access to Chilean ports. This led to the
initiation of two distinct proceedings, within few months of each other, one brought
by the EC before the WTO DSB,
42
the other instituted by Chile under Part XV
Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (UNFSA) is of relevance in this context. As it is well known, UNFSA strengthens Articles 63 and 64 UNCLOS, by
indicating ways and means to implement the obligation of States to cooperate for the conservation
and management of straddling and highly migratory fish stocks. It expressly provides, as to catches
taken in the high seas, that port States may “adopt regulations empowering the relevant national
authorities to prohibit landings and transhipments where it has been established that the catch has
been taken in a manner which undermines the effectiveness of sub regional, regional or global
conservation and management measures on the high seas” (Art. 23(3)). In addition, according to
Art. 23(1) a port State has “the right and duty to take measures in accordance with international
law, to promote the effectiveness of subregional, regional and global conservation and management measures”. At the time of writing, a new legal instrument that might have some kind of bearing on the issue is under negotiation. On 24 December 2017, the UN General Assembly decided to
convene an intergovernmental conference to elaborate the text of an internationally binding instrument under UNCLOS on the conservation and sustainable use of the marine biological diversity of
areas beyond national jurisdiction (UN Doc A/RES/ 72/249). For a first comment, see Hubert and
Craik (2018).
39 On the question of jurisdictional conflicts between international tribunals see extensively Del
Vecchio (2015), especially p. 311 ff.
40 For general comments on the case, see Orellana (2002), Rau (2002), Serdy (2002), Shamsey
(2002), Stoll and Vöneky (2002), and Salama (2005), pp. 28−32; Virzo (2008), p. 238 ff., especially p. 270 ff.; Del Vecchio (2015), pp. 329−330.
41 The decision is based on Art. 165 of the Chilean Fishery Law (Ley General de Pesca y Acuicultura)
as consolidated by Supreme Decree 430 of 28 September 1991 and extended by Decree 598 of 15
October 1999: available at www.fao.org/faolex/results/details/en/?details=LEX-FAOC001227. To
ensure the preservation of marine resources of the Southeast Pacific high seas, Chile also negotiated with the other members of the Permanent Commission of the South Pacific—Colombia,
Ecuador and Peru—the Galapagos Agreement. See Framework Agreement for the Conservation of
the Living Marine Resources of the High Seas of the Southeast Pacific, signed in Santiago de Chile
on 14 August 2000.
42 On 19 April 2000, the EC requested formal consultations with Chile pursuant to Art. 4 DSU and
Art. XXIII GATT (Chile-Measures Affecting the Transit and Importation of Swordfish: Request for
Consultations by the European Communities, 26 April 2000). Consultations having failed, the EC
requested the establishment of a WTO Panel to hear the dispute (see Chile-Measures Affecting the
Transit and Importation of Swordfish: Request for the Establishment of a Panel by the European
Communities, 7 November 2000), which was granted by the DSB at its meeting of 12 December
2000.
The Relationship Between International Trade Law and the Law of the Sea in the WTO…
The potential for incoherence between trade and fisheries law is well illustrated
by two cases concerning restrictive measures, aimed at ensuring the conservation
and promoting the optimum utilisation of highly migratory fish species, which
raised issues of inconsistency with the GATT. In both cases competing trade and
conservation issues were brought before the WTO DSB and the International
Tribunal on the Law of the Sea (ITLOS).
39
The first is a dispute—known as Swordfish Case
40
—between the EC and Chile,
stemming from Chile’s decision to prohibit the unloading and transit in its ports of
swordfish catches, taken from the high seas adjacent to its EEZ, in breach of its legislation on the conservation and sustainable exploitation of this fish species.
41
On that
basis, Spanish fishing vessels were denied access to Chilean ports. This led to the
initiation of two distinct proceedings, within few months of each other, one brought
by the EC before the WTO DSB,
42
the other instituted by Chile under Part XV
Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (UNFSA) is of relevance in this context. As it is well known, UNFSA strengthens Articles 63 and 64 UNCLOS, by
indicating ways and means to implement the obligation of States to cooperate for the conservation
and management of straddling and highly migratory fish stocks. It expressly provides, as to catches
taken in the high seas, that port States may “adopt regulations empowering the relevant national
authorities to prohibit landings and transhipments where it has been established that the catch has
been taken in a manner which undermines the effectiveness of sub regional, regional or global
conservation and management measures on the high seas” (Art. 23(3)). In addition, according to
Art. 23(1) a port State has “the right and duty to take measures in accordance with international
law, to promote the effectiveness of subregional, regional and global conservation and management measures”. At the time of writing, a new legal instrument that might have some kind of bearing on the issue is under negotiation. On 24 December 2017, the UN General Assembly decided to
convene an intergovernmental conference to elaborate the text of an internationally binding instrument under UNCLOS on the conservation and sustainable use of the marine biological diversity of
areas beyond national jurisdiction (UN Doc A/RES/ 72/249). For a first comment, see Hubert and
Craik (2018).
39 On the question of jurisdictional conflicts between international tribunals see extensively Del
Vecchio (2015), especially p. 311 ff.
40 For general comments on the case, see Orellana (2002), Rau (2002), Serdy (2002), Shamsey
(2002), Stoll and Vöneky (2002), and Salama (2005), pp. 28−32; Virzo (2008), p. 238 ff., especially p. 270 ff.; Del Vecchio (2015), pp. 329−330.
41 The decision is based on Art. 165 of the Chilean Fishery Law (Ley General de Pesca y Acuicultura)
as consolidated by Supreme Decree 430 of 28 September 1991 and extended by Decree 598 of 15
October 1999: available at www.fao.org/faolex/results/details/en/?details=LEX-FAOC001227. To
ensure the preservation of marine resources of the Southeast Pacific high seas, Chile also negotiated with the other members of the Permanent Commission of the South Pacific—Colombia,
Ecuador and Peru—the Galapagos Agreement. See Framework Agreement for the Conservation of
the Living Marine Resources of the High Seas of the Southeast Pacific, signed in Santiago de Chile
on 14 August 2000.
42 On 19 April 2000, the EC requested formal consultations with Chile pursuant to Art. 4 DSU and
Art. XXIII GATT (Chile-Measures Affecting the Transit and Importation of Swordfish: Request for
Consultations by the European Communities, 26 April 2000). Consultations having failed, the EC
requested the establishment of a WTO Panel to hear the dispute (see Chile-Measures Affecting the
Transit and Importation of Swordfish: Request for the Establishment of a Panel by the European
Communities, 7 November 2000), which was granted by the DSB at its meeting of 12 December
2000.
The Relationship Between International Trade Law and the Law of the Sea in the WTO…