332
UNCLOS.
43
While the EC challenged the violation by Chile of Articles V
(providing for freedom of transit for goods through the territory of each contracting
party for traffic in transit to or from the territory of other contracting parties) and XI
GATT (prohibiting quantitative restrictions on imports or exports),
44
Chile complained, among others, about the EC’s alleged breach of the obligation to cooperate in
the conservation and management of highly migratory species in the high seas adjacent to Chile’s EEZ (Art. 64 UNCLOS) and the provisions relating to the conservation
and management of living resources in the high seas (Articles 117 to 119 UNCLOS).
45
Thus, the ITLOS Special Chamber and the WTO DSB were called to simultaneously
adjudicate different legal issues arising from the same fact scenario between Chile and
the EC. This clearly led to the possibility of irreconcilable decisions.
The second, more recent dispute, dating back to 2013, concerns the management
and conservation of the herring and mackerel stocks in the North-East Atlantic
46
and
involved the EU against the Faroe Islands.
47
The EU adopted trade restrictive measures for reasons of preservation of the concerned fish stocks, as a reaction to the
decision of the Faroe Islands to unilaterally increase its catch limits, after withdrawal from the negotiations in the North-East Atlantic Fisheries Commission
(NEAFC) on the distribution of the total allowable catch for the year 2013.
48
For its
43 At first, Chile instituted an arbitral procedure under Art. 287(3) UNCLOS. Subsequently, the
parties agreed to transfer the case to a Special Chamber of the ITLOS (see the letter dated 18
December 2000 from the Ambassador of Chile to the Registrar of the ITLOS, reproduced in
ITLOS, Conservation and Sustainable Exploitation of Swordfish Stocks (Chile/European
Community), Order, 20 December 2000).
44 Minutes of the Meeting Held in the Centre William Rappard on 17 November 2000, 15 January
2001, para. 101 ff. In response, Chile claimed that the measures it had adopted were “solidly based
on the obligations imposed and the prerogatives given by the UN Convention on the Law of the
Sea”, and were “fully justified by Article XX of the GATT 1994”: ibidem, para. 112.
45 See Conservation and Sustainable Exploitation of Swordfish Stocks, paras 3(a) and 3(b). Chile
also alleged breaches by the EC of “the sovereign right and duty of Chile, as a coastal State, to
prescribe measures within its national jurisdiction for the conservation of swordfish and to ensure
their implementation in its ports, in a non-discriminatory manner” (ibidem, para. 3(c)); and of its
procedural obligations under Art. 297(1)(b) UNCLOS and the duty of acting in good faith established by Art. 300 UNCLOS (ibidem, para. 3(d)). The EC, for its part, asked the Special Chamber
to establish inter alia: whether Chile’s unilateral conservation measures relating to swordfish on
the high seas were in breach of Articles 87, 89 and 116 to 119 UNCLOS; whether the Galapagos
Agreement was in consonance with Articles 64 and 116 to 119 UNCLOS; whether Chile’s actions
concerning the conservation of swordfish were in conformity with Art. 300 UNCLOS (ibidem,
para. 3(e)(f)(g)), and whether Chile and the EC remained under a duty to negotiate an agreement
on cooperation in accordance with Art. 64 UNCLOS (ibidem, para. 3(g) in fine).
46 For a comprehensive discussion on the case, see Auld (2017).
47 Even if the Faroe Islands is a self-governing territory under the sovereignty of Denmark, the EU
Treaties do not apply to it. This had bizarre consequences in the case at hand, where Denmark,
being responsible for the foreign policy of the Faroe Islands, instituted proceedings in respect of
the Faroe Islands under the WTO DSU and UNCLOS against the EU, of which it is a member.
48 The NEAFC is a RFMO set up to ensure the long-term conservation and sustainable management of the fishery resources in the North-East Atlantic, including herring. For the latter fish stock,
the parties to the NEAFC—EU, Faroe Islands, Iceland, Norway and Russian Federation—agreed
on a long-term fisheries management plan by establishing a total allowable catch (TAC), in accorM. I. Papa
UNCLOS.
43
While the EC challenged the violation by Chile of Articles V
(providing for freedom of transit for goods through the territory of each contracting
party for traffic in transit to or from the territory of other contracting parties) and XI
GATT (prohibiting quantitative restrictions on imports or exports),
44
Chile complained, among others, about the EC’s alleged breach of the obligation to cooperate in
the conservation and management of highly migratory species in the high seas adjacent to Chile’s EEZ (Art. 64 UNCLOS) and the provisions relating to the conservation
and management of living resources in the high seas (Articles 117 to 119 UNCLOS).
45
Thus, the ITLOS Special Chamber and the WTO DSB were called to simultaneously
adjudicate different legal issues arising from the same fact scenario between Chile and
the EC. This clearly led to the possibility of irreconcilable decisions.
The second, more recent dispute, dating back to 2013, concerns the management
and conservation of the herring and mackerel stocks in the North-East Atlantic
46
and
involved the EU against the Faroe Islands.
47
The EU adopted trade restrictive measures for reasons of preservation of the concerned fish stocks, as a reaction to the
decision of the Faroe Islands to unilaterally increase its catch limits, after withdrawal from the negotiations in the North-East Atlantic Fisheries Commission
(NEAFC) on the distribution of the total allowable catch for the year 2013.
48
For its
43 At first, Chile instituted an arbitral procedure under Art. 287(3) UNCLOS. Subsequently, the
parties agreed to transfer the case to a Special Chamber of the ITLOS (see the letter dated 18
December 2000 from the Ambassador of Chile to the Registrar of the ITLOS, reproduced in
ITLOS, Conservation and Sustainable Exploitation of Swordfish Stocks (Chile/European
Community), Order, 20 December 2000).
44 Minutes of the Meeting Held in the Centre William Rappard on 17 November 2000, 15 January
2001, para. 101 ff. In response, Chile claimed that the measures it had adopted were “solidly based
on the obligations imposed and the prerogatives given by the UN Convention on the Law of the
Sea”, and were “fully justified by Article XX of the GATT 1994”: ibidem, para. 112.
45 See Conservation and Sustainable Exploitation of Swordfish Stocks, paras 3(a) and 3(b). Chile
also alleged breaches by the EC of “the sovereign right and duty of Chile, as a coastal State, to
prescribe measures within its national jurisdiction for the conservation of swordfish and to ensure
their implementation in its ports, in a non-discriminatory manner” (ibidem, para. 3(c)); and of its
procedural obligations under Art. 297(1)(b) UNCLOS and the duty of acting in good faith established by Art. 300 UNCLOS (ibidem, para. 3(d)). The EC, for its part, asked the Special Chamber
to establish inter alia: whether Chile’s unilateral conservation measures relating to swordfish on
the high seas were in breach of Articles 87, 89 and 116 to 119 UNCLOS; whether the Galapagos
Agreement was in consonance with Articles 64 and 116 to 119 UNCLOS; whether Chile’s actions
concerning the conservation of swordfish were in conformity with Art. 300 UNCLOS (ibidem,
para. 3(e)(f)(g)), and whether Chile and the EC remained under a duty to negotiate an agreement
on cooperation in accordance with Art. 64 UNCLOS (ibidem, para. 3(g) in fine).
46 For a comprehensive discussion on the case, see Auld (2017).
47 Even if the Faroe Islands is a self-governing territory under the sovereignty of Denmark, the EU
Treaties do not apply to it. This had bizarre consequences in the case at hand, where Denmark,
being responsible for the foreign policy of the Faroe Islands, instituted proceedings in respect of
the Faroe Islands under the WTO DSU and UNCLOS against the EU, of which it is a member.
48 The NEAFC is a RFMO set up to ensure the long-term conservation and sustainable management of the fishery resources in the North-East Atlantic, including herring. For the latter fish stock,
the parties to the NEAFC—EU, Faroe Islands, Iceland, Norway and Russian Federation—agreed
on a long-term fisheries management plan by establishing a total allowable catch (TAC), in accorM. I. Papa