337
Art. XX GATT exceptions, at least in case of highly migratory fish caught in the
high sea, but living in its EEZ or in the adjacent high sea, or probably where the
depletion of that species may be regarded as a collective concern for the International
Community as a whole. Indeed, the GATT is silent on the question of whether there
may be some implicit jurisdictional constraints in Art. XX(g). Nevertheless, the
WTO case-law, even though it does not completely remove the hurdle of jurisdiction, seems to depart from a strict territorial application of Art. XX.
The Appellate Body, in its report on US-Shrimp, while avoiding dealing openly
with the extraterritoriality issue,
65
considered the fact that the sea turtles protected
by the impugned measure also passed through waters under the United States’ jurisdiction to constitute “a sufficient nexus between the migratory and endangered
marine populations involved and the United States for purposes of Article XX(g)”.
66
It also attached some weight to the fact that no litigant claimed “exclusive ownership over the sea turtles”.
67
Nevertheless, the Appellate Body did not elaborate upon
the “sufficient nexus” test. In a similar vein, in the EU-Seal Products Case, concerning EU regulations banning the importation and marketing of seal products in the
EU, the Appellate Body, after having noted that the parties had not specifically dealt
with the issue of extraterritorial application of Art. XX GATT in their submission on
appeal, contented itself with observing that the challenged measure “[was] designed
to address seal hunting activities occurring ‘within and outside the Community’ and
the seal welfare concerns of ‘citizens and consumers’ in EU member States”, without examining the question further.
68
Although this passage may appear cryptic, it is
plausible that the Appellate Body reasoned that, even assuming that there was a
geographic or jurisdictional limitation in Art. XX(a), the features mentioned above
would have been regarded as constituting a “sufficient linkage” between the seals
and the EU, to the extent that the measure at stake was aimed at addressing the
moral concerns of EU citizens and consumers with regard to activities that took
place, at least in part, within the EU territory.
69
65 See US-Shrimp (AB), para. 133.
66 Ibidem. This seems to constitute a significant revirement from the Panel’s findings on extrajurisdictional environmental regulations in US-Tuna (Mexico). There, the Panel held that the
United States had no authority to enact a policy affecting fishing outside its jurisdiction (para. 5.25
ff.). This ruling was overcome 3 years later, when a second Panel examined the application brought
by the EC concerning the secondary embargo against imports of Mexican tuna from the EC. The
Panel, while rejecting the Art. XX defence on other grounds, held that “it could not […] be said
that the General Agreement proscribed in an absolute manner measures that related to things or
actions outside the territorial jurisdiction of the party taking the measure” (see US-Tuna (EEC),
paras 5.15–5.16). Nevertheless, neither of the two Panel reports was adopted as a legally binding
settlement by the contracting parties and, therefore, can be regarded as an authoritative statement
of GATT law.
67 US-Shrimp (AB), para. 133.
68 WTO Appellate Body, European Communities-Measures Prohibiting the Importation and
Marketing of Seal Products, Report, 22 May 2014, para. 5.173.
69 It has been asserted that, following the acknowledgement by the WTO dispute settlement bodies
in EU-Seal Products that environmental concerns may affect the public morals of the citizens and
consumers of the importing State, the extraterritoriality issue would have lost importance. See
The Relationship Between International Trade Law and the Law of the Sea in the WTO…
Art. XX GATT exceptions, at least in case of highly migratory fish caught in the
high sea, but living in its EEZ or in the adjacent high sea, or probably where the
depletion of that species may be regarded as a collective concern for the International
Community as a whole. Indeed, the GATT is silent on the question of whether there
may be some implicit jurisdictional constraints in Art. XX(g). Nevertheless, the
WTO case-law, even though it does not completely remove the hurdle of jurisdiction, seems to depart from a strict territorial application of Art. XX.
The Appellate Body, in its report on US-Shrimp, while avoiding dealing openly
with the extraterritoriality issue,
65
considered the fact that the sea turtles protected
by the impugned measure also passed through waters under the United States’ jurisdiction to constitute “a sufficient nexus between the migratory and endangered
marine populations involved and the United States for purposes of Article XX(g)”.
66
It also attached some weight to the fact that no litigant claimed “exclusive ownership over the sea turtles”.
67
Nevertheless, the Appellate Body did not elaborate upon
the “sufficient nexus” test. In a similar vein, in the EU-Seal Products Case, concerning EU regulations banning the importation and marketing of seal products in the
EU, the Appellate Body, after having noted that the parties had not specifically dealt
with the issue of extraterritorial application of Art. XX GATT in their submission on
appeal, contented itself with observing that the challenged measure “[was] designed
to address seal hunting activities occurring ‘within and outside the Community’ and
the seal welfare concerns of ‘citizens and consumers’ in EU member States”, without examining the question further.
68
Although this passage may appear cryptic, it is
plausible that the Appellate Body reasoned that, even assuming that there was a
geographic or jurisdictional limitation in Art. XX(a), the features mentioned above
would have been regarded as constituting a “sufficient linkage” between the seals
and the EU, to the extent that the measure at stake was aimed at addressing the
moral concerns of EU citizens and consumers with regard to activities that took
place, at least in part, within the EU territory.
69
65 See US-Shrimp (AB), para. 133.
66 Ibidem. This seems to constitute a significant revirement from the Panel’s findings on extrajurisdictional environmental regulations in US-Tuna (Mexico). There, the Panel held that the
United States had no authority to enact a policy affecting fishing outside its jurisdiction (para. 5.25
ff.). This ruling was overcome 3 years later, when a second Panel examined the application brought
by the EC concerning the secondary embargo against imports of Mexican tuna from the EC. The
Panel, while rejecting the Art. XX defence on other grounds, held that “it could not […] be said
that the General Agreement proscribed in an absolute manner measures that related to things or
actions outside the territorial jurisdiction of the party taking the measure” (see US-Tuna (EEC),
paras 5.15–5.16). Nevertheless, neither of the two Panel reports was adopted as a legally binding
settlement by the contracting parties and, therefore, can be regarded as an authoritative statement
of GATT law.
67 US-Shrimp (AB), para. 133.
68 WTO Appellate Body, European Communities-Measures Prohibiting the Importation and
Marketing of Seal Products, Report, 22 May 2014, para. 5.173.
69 It has been asserted that, following the acknowledgement by the WTO dispute settlement bodies
in EU-Seal Products that environmental concerns may affect the public morals of the citizens and
consumers of the importing State, the extraterritoriality issue would have lost importance. See
The Relationship Between International Trade Law and the Law of the Sea in the WTO…