336
invocation of the so called environmental exceptions under Art. XX(b) and (g)
GATT, namely those exceptions that, being more directly relevant for environmental concerns, could arguably be invoked in case of trade restrictive measures aimed
at ensuring compliance with the obligations for the conservation and sustainable
management of marine resources under the UNCLOS or UNCLOS implementing
or related agreements—such as, for instance, multilateral agreements on fisheries.
In particular, four points need to be highlighted in relation to the option of relying on Art. XX’s environmental exceptions in situations involving possible conflicts
between UNCLOS and WTO.
First, we have already seen, and it is now definitely settled, that fish stocks can
qualify as “exhaustible natural resources” for the purpose of applying Art. XX(g).
60
Thus, national regulations aimed at protecting fish species that are threatened with
extinction may fall under the scope of Art. XX GATT.
61
In such situation, because
the Art. XX(g) standard is less exacting then the one established by Art. XX(b),
62
it
is likely that States would be more inclined to rely on the first provision in order to
defend their measures. In any case, recourse to Art. XX(b) would be always open to
justify regulations aimed at protecting marine resources that are deemed not to be in
imminent danger of exhaustion. Perhaps Art. XX(d), relating to measures necessary
to secure compliance with the prevention of deceptive practices, may also be relevant with regard to measures designed to combat IUU fishing.
63
Second, the Appellate Body US-Shrimp report may be interpreted as allowing
Members to take unilateral measures to protect the environment based on the manner in which products are made (as, in that case, the way in which shrimps were
caught).
64
Non-economic factors were taken into consideration in order to differentiate between “like” products, even if neither the language employed by Art. XX
GATT nor its drafting history affords any evidence that the general exceptions may
be applied to production processes and methods (so-called “PPMs”).
Third, it is generally considered that policies related to the conservation of
marine resources located outside the enacting State’s jurisdiction may fall under the
60 Supra, para. 2.
61 As observed by Tyler (2006), pp. 89−90, the existence of a multilateral fisheries agreement specifically designed to preserve a certain fish species could provide sufficient evidence of the
exhaustibility of that species. This can be drawn by analogy from the Appellate Body’s finding in
the US-Shrimp report that “[t]he exhaustibility of sea turtles would in fact have been very difficult
to controvert since all of the seven recognized species of sea turtles are today listed in Appendix 1
of the Convention on International Trade in Endangered Species of Wild Fauna and Flora”
(US-Shrimp (AB), para. 132).
62 In this case, in order to fall within the scope of Art. XX(g), the measure at issue must be “related
to” the conservation of exhaustible natural resources (which merely entails a close and genuine
relationship of ends and means between the measure under consideration and the allegedly pursued aim) and must also be “made effective in conjunction with restrictions on domestic production or consumption”. For a more detailed analysis and discussion on the requirements of Art.
XX(g) GATT, see Matz-Lück and Wolfrum (2010).
63 For this suggestion see Telesetsky (2015).
64 On this issue, see extensively Charnovitz (2002), p. 92 ff.
M. I. Papa
invocation of the so called environmental exceptions under Art. XX(b) and (g)
GATT, namely those exceptions that, being more directly relevant for environmental concerns, could arguably be invoked in case of trade restrictive measures aimed
at ensuring compliance with the obligations for the conservation and sustainable
management of marine resources under the UNCLOS or UNCLOS implementing
or related agreements—such as, for instance, multilateral agreements on fisheries.
In particular, four points need to be highlighted in relation to the option of relying on Art. XX’s environmental exceptions in situations involving possible conflicts
between UNCLOS and WTO.
First, we have already seen, and it is now definitely settled, that fish stocks can
qualify as “exhaustible natural resources” for the purpose of applying Art. XX(g).
60
Thus, national regulations aimed at protecting fish species that are threatened with
extinction may fall under the scope of Art. XX GATT.
61
In such situation, because
the Art. XX(g) standard is less exacting then the one established by Art. XX(b),
62
it
is likely that States would be more inclined to rely on the first provision in order to
defend their measures. In any case, recourse to Art. XX(b) would be always open to
justify regulations aimed at protecting marine resources that are deemed not to be in
imminent danger of exhaustion. Perhaps Art. XX(d), relating to measures necessary
to secure compliance with the prevention of deceptive practices, may also be relevant with regard to measures designed to combat IUU fishing.
63
Second, the Appellate Body US-Shrimp report may be interpreted as allowing
Members to take unilateral measures to protect the environment based on the manner in which products are made (as, in that case, the way in which shrimps were
caught).
64
Non-economic factors were taken into consideration in order to differentiate between “like” products, even if neither the language employed by Art. XX
GATT nor its drafting history affords any evidence that the general exceptions may
be applied to production processes and methods (so-called “PPMs”).
Third, it is generally considered that policies related to the conservation of
marine resources located outside the enacting State’s jurisdiction may fall under the
60 Supra, para. 2.
61 As observed by Tyler (2006), pp. 89−90, the existence of a multilateral fisheries agreement specifically designed to preserve a certain fish species could provide sufficient evidence of the
exhaustibility of that species. This can be drawn by analogy from the Appellate Body’s finding in
the US-Shrimp report that “[t]he exhaustibility of sea turtles would in fact have been very difficult
to controvert since all of the seven recognized species of sea turtles are today listed in Appendix 1
of the Convention on International Trade in Endangered Species of Wild Fauna and Flora”
(US-Shrimp (AB), para. 132).
62 In this case, in order to fall within the scope of Art. XX(g), the measure at issue must be “related
to” the conservation of exhaustible natural resources (which merely entails a close and genuine
relationship of ends and means between the measure under consideration and the allegedly pursued aim) and must also be “made effective in conjunction with restrictions on domestic production or consumption”. For a more detailed analysis and discussion on the requirements of Art.
XX(g) GATT, see Matz-Lück and Wolfrum (2010).
63 For this suggestion see Telesetsky (2015).
64 On this issue, see extensively Charnovitz (2002), p. 92 ff.
M. I. Papa