335
access and use of ports will be increasingly used as weapons against overfishing and
IUU fishing.
56
In addition, even though the Agreement on Port State Measures does
not explicitly envisage the use of trade measures, some regional fisheries management organisations (RFMOs)
57
have occasionally recommended their Member
States to adopt trade restrictions for achieving the organisations’ conservation
aims.
58
Given that all these measures may lead to inconsistencies with the GATT—
in particular, as shown by the cases described above, with Articles V and XI—the
issue could arise whether they would be justified under Art. XX GATT. Therefore,
in the next section, the relationship between fisheries measures and the international
trade regime will be analysed in the light of that provision.
5 The Interaction Between UNCLOS and WTO in the Light
of Art. XX GATT
While a comprehensive review of the dispute settlement practice relating to the
application of Art. XX GATT would be outside the scope of this paper, and even
though the WTO dispute settlement bodies continue to favour free trade over environmental concerns, it is worth emphasising that the recent WTO case-law on Art.
XX GATT seems to indicate greater sensitivity towards environmental values.
59
As
a matter of fact, this case-law reveals a relaxation of the requirements for the
organisation in accordance with the rules and procedures of such organisation and in conformity
with international law, the Party shall deny that vessel entry into its ports […]”. If the vessel is
already in port for any reason, the port State “shall deny such vessel the use of its ports for landing,
transhipping, packaging, and processing of fish and for other port services including, inter alia,
refuelling and resupplying, maintenance and dry-docking” (para. 6).
56 It has been suggested that the Agreement on Port State Measures could be regarded as an inter se
agreement concluded by some WTO Members that would take precedence above WTO obligations
in the relationship between the parties: Auld (2017) p. 3. Nevertheless, as the author herself notes,
the WTO case-law does not provide any support for such a solution. See Peru-Agricultural
Products (AB), para. 5.112: “the WTO agreements contain specific provisions addressing amendments, waivers, or exceptions for regional trade agreements, which prevail over the general provisions of the Vienna Convention, such as Article 41”.
57 See supra, note 38.
58 In particular, the International Commission for the Conservation of Atlantic Tuna (ICCAT) was
the first fishery organisation that recommended the adoption of import restrictions to its Members.
In 1994 and 1995, the Commission issued two Action Plan resolutions to ensure the effectiveness
of the conservation program for respectively Atlantic Bluefin tuna (resolution 94-3) and Atlantic
swordfish (resolution 95-13). These resolutions contemplated the possibility to “recommend that
contracting parties take non-discriminatory trade restrictive measures, consistent with their international obligations”. It subsequently adopted resolutions in which it invited its member States to
prohibit imports of various products from different States (see: www.iccat.int/en/RecRes.asp). On
this topic see Pie (2000), and Fagenholz (2004).
59 On the evolution in the approach to environmental disputes from the GATT to the WTO, see
Cosbey and Mavroidis (2014). As suggested by Myers (2005), p. 45, the explicit recognition of the
objective of sustainable development in the Preamble of the WTO Agreement has of course greatly
contributed to this evolution. See Wofford (2000).
The Relationship Between International Trade Law and the Law of the Sea in the WTO…
access and use of ports will be increasingly used as weapons against overfishing and
IUU fishing.
56
In addition, even though the Agreement on Port State Measures does
not explicitly envisage the use of trade measures, some regional fisheries management organisations (RFMOs)
57
have occasionally recommended their Member
States to adopt trade restrictions for achieving the organisations’ conservation
aims.
58
Given that all these measures may lead to inconsistencies with the GATT—
in particular, as shown by the cases described above, with Articles V and XI—the
issue could arise whether they would be justified under Art. XX GATT. Therefore,
in the next section, the relationship between fisheries measures and the international
trade regime will be analysed in the light of that provision.
5 The Interaction Between UNCLOS and WTO in the Light
of Art. XX GATT
While a comprehensive review of the dispute settlement practice relating to the
application of Art. XX GATT would be outside the scope of this paper, and even
though the WTO dispute settlement bodies continue to favour free trade over environmental concerns, it is worth emphasising that the recent WTO case-law on Art.
XX GATT seems to indicate greater sensitivity towards environmental values.
59
As
a matter of fact, this case-law reveals a relaxation of the requirements for the
organisation in accordance with the rules and procedures of such organisation and in conformity
with international law, the Party shall deny that vessel entry into its ports […]”. If the vessel is
already in port for any reason, the port State “shall deny such vessel the use of its ports for landing,
transhipping, packaging, and processing of fish and for other port services including, inter alia,
refuelling and resupplying, maintenance and dry-docking” (para. 6).
56 It has been suggested that the Agreement on Port State Measures could be regarded as an inter se
agreement concluded by some WTO Members that would take precedence above WTO obligations
in the relationship between the parties: Auld (2017) p. 3. Nevertheless, as the author herself notes,
the WTO case-law does not provide any support for such a solution. See Peru-Agricultural
Products (AB), para. 5.112: “the WTO agreements contain specific provisions addressing amendments, waivers, or exceptions for regional trade agreements, which prevail over the general provisions of the Vienna Convention, such as Article 41”.
57 See supra, note 38.
58 In particular, the International Commission for the Conservation of Atlantic Tuna (ICCAT) was
the first fishery organisation that recommended the adoption of import restrictions to its Members.
In 1994 and 1995, the Commission issued two Action Plan resolutions to ensure the effectiveness
of the conservation program for respectively Atlantic Bluefin tuna (resolution 94-3) and Atlantic
swordfish (resolution 95-13). These resolutions contemplated the possibility to “recommend that
contracting parties take non-discriminatory trade restrictive measures, consistent with their international obligations”. It subsequently adopted resolutions in which it invited its member States to
prohibit imports of various products from different States (see: www.iccat.int/en/RecRes.asp). On
this topic see Pie (2000), and Fagenholz (2004).
59 On the evolution in the approach to environmental disputes from the GATT to the WTO, see
Cosbey and Mavroidis (2014). As suggested by Myers (2005), p. 45, the explicit recognition of the
objective of sustainable development in the Preamble of the WTO Agreement has of course greatly
contributed to this evolution. See Wofford (2000).
The Relationship Between International Trade Law and the Law of the Sea in the WTO…