334
lodged by the same party). As in the Chile-Swordfish Case, this would have implied a
concurrent examination of a single set of facts from different perspectives: while the
UNCLOS Arbitral Tribunal was seized with the UNCLOS-related issues (cooperation obligations under Art. 63), the WTO DSB had to pronounce on the GATT-related
ones (freedom of transit and non-tariff restrictions on importation). Therefore, here
again there was clearly the risk that these proceedings could have conflicting results.
However, in both cases that risk was averted by the achievement of an amicable
settlement by the involved parties, before the pleadings were begun in either forum.
This led, first, to the parallel suspension of the proceedings before the two dispute
settlement mechanisms,
52
and subsequently to their discontinuance following the
withdrawal of the respective claims by the litigant parties.
53
Nevertheless, the settlement of these disputes left unresolved many fundamental
issues concerning the relationship between the law of the sea and WTO law, on one
hand, and between their respective dispute settlement mechanisms on the other. The
future occurrence of situations like the ones discussed above cannot be ruled out
either. The potential for normative conflicts and parallel proceedings before the
ITLOS and the WTO adjudicative bodies has even increased following the entry
into force on 5 June 2016 of the FAO Agreement on Port State Measures to Prevent,
Deter and Eliminate Illegal, Unreported and Unregulated Fishing (hereafter:
Agreement on Port State Measures).
54
This agreement requires port States to deny
use of ports, including access to port services of any kind, to vessels engaged in IUU
fishing with a view to prevent illegally caught fish from entering international markets through their ports.
55
Therefore, it can be presumed that restrictions on the
52 See, respectively, for the Chile-Swordfish Case: Chile-Measures Affecting the Transit and
Importation of Swordfish: Arrangement between the European Communities and Chile, 6 April
2001, and Conservation and Sustainable Exploitation of Swordfish Stocks (Chile/European
Community), Order, 15 March 2001; and for the EU-Herring Case: European Commission, Deal
on Mackerel in the North-East Atlantic, press release, 12 March 2014, available at europa.eu/rapid/
press-release_IP-14-265_en.htm and Herring dispute between European Union and Faroe Islands
nears end, press release, 11 June 2014, available at europa.eu/rapid/press-release_IP-14-668_en.
htm.
53 As to the Chile-Swordfish Case, see: Conservation and Sustainable Exploitation of Swordfish
Stocks (Chile/European Union), Order, 16 December 2009, and Chile-Measures Affecting the
Transit and Importation of Swordfish: Joint Communication from the European Union and Chile,
3 June 2010. As to the EU-Herring Case, on 21 August 2014, Denmark, in respect of the Faroe
Islands, and the European Union notified the DSB that the dispute had been settled: see European
Union-Measures on Atlanto-Scandian Herring: Joint communication from Denmark in respect of
the Faroe Islands and the European Union, 25 August 2014. On 21 August 2014, the parties also
informed the Presiding Arbitrator of the Arbitral Tribunal, which issued a termination order on 23
September 2014: see PCA, Termination Order.
54 Adopted by the FAO Conference, during its 36th Session, held from 18 to 22 November 2009,
FAO Doc C 2009/LIM/11 Rev.1., available at www.fao.org/fileadmin/user_upload/legal/
docs/2_037t-e.pdf. For a detailed description of this instrument see Telesetsky (2015).
55 According to Art. 9(4), each party must deny entrance to its ports when it “has sufficient proof
that a vessel seeking entry into its port has engaged in IUU fishing or fishing related activities in
support of such fishing, in particular the inclusion of a vessel on a list of vessels having engaged in
such fishing or fishing related activities adopted by a relevant regional fisheries management
M. I. Papa
lodged by the same party). As in the Chile-Swordfish Case, this would have implied a
concurrent examination of a single set of facts from different perspectives: while the
UNCLOS Arbitral Tribunal was seized with the UNCLOS-related issues (cooperation obligations under Art. 63), the WTO DSB had to pronounce on the GATT-related
ones (freedom of transit and non-tariff restrictions on importation). Therefore, here
again there was clearly the risk that these proceedings could have conflicting results.
However, in both cases that risk was averted by the achievement of an amicable
settlement by the involved parties, before the pleadings were begun in either forum.
This led, first, to the parallel suspension of the proceedings before the two dispute
settlement mechanisms,
52
and subsequently to their discontinuance following the
withdrawal of the respective claims by the litigant parties.
53
Nevertheless, the settlement of these disputes left unresolved many fundamental
issues concerning the relationship between the law of the sea and WTO law, on one
hand, and between their respective dispute settlement mechanisms on the other. The
future occurrence of situations like the ones discussed above cannot be ruled out
either. The potential for normative conflicts and parallel proceedings before the
ITLOS and the WTO adjudicative bodies has even increased following the entry
into force on 5 June 2016 of the FAO Agreement on Port State Measures to Prevent,
Deter and Eliminate Illegal, Unreported and Unregulated Fishing (hereafter:
Agreement on Port State Measures).
54
This agreement requires port States to deny
use of ports, including access to port services of any kind, to vessels engaged in IUU
fishing with a view to prevent illegally caught fish from entering international markets through their ports.
55
Therefore, it can be presumed that restrictions on the
52 See, respectively, for the Chile-Swordfish Case: Chile-Measures Affecting the Transit and
Importation of Swordfish: Arrangement between the European Communities and Chile, 6 April
2001, and Conservation and Sustainable Exploitation of Swordfish Stocks (Chile/European
Community), Order, 15 March 2001; and for the EU-Herring Case: European Commission, Deal
on Mackerel in the North-East Atlantic, press release, 12 March 2014, available at europa.eu/rapid/
press-release_IP-14-265_en.htm and Herring dispute between European Union and Faroe Islands
nears end, press release, 11 June 2014, available at europa.eu/rapid/press-release_IP-14-668_en.
htm.
53 As to the Chile-Swordfish Case, see: Conservation and Sustainable Exploitation of Swordfish
Stocks (Chile/European Union), Order, 16 December 2009, and Chile-Measures Affecting the
Transit and Importation of Swordfish: Joint Communication from the European Union and Chile,
3 June 2010. As to the EU-Herring Case, on 21 August 2014, Denmark, in respect of the Faroe
Islands, and the European Union notified the DSB that the dispute had been settled: see European
Union-Measures on Atlanto-Scandian Herring: Joint communication from Denmark in respect of
the Faroe Islands and the European Union, 25 August 2014. On 21 August 2014, the parties also
informed the Presiding Arbitrator of the Arbitral Tribunal, which issued a termination order on 23
September 2014: see PCA, Termination Order.
54 Adopted by the FAO Conference, during its 36th Session, held from 18 to 22 November 2009,
FAO Doc C 2009/LIM/11 Rev.1., available at www.fao.org/fileadmin/user_upload/legal/
docs/2_037t-e.pdf. For a detailed description of this instrument see Telesetsky (2015).
55 According to Art. 9(4), each party must deny entrance to its ports when it “has sufficient proof
that a vessel seeking entry into its port has engaged in IUU fishing or fishing related activities in
support of such fishing, in particular the inclusion of a vessel on a list of vessels having engaged in
such fishing or fishing related activities adopted by a relevant regional fisheries management
M. I. Papa