339
Body, the need for a multilateral approach in that case also stemmed from the circumstance that the measures involved were intended to address an issue of global
concern.
72
The emphasis placed by the WTO adjudicating bodies on the obligation to negotiate in good faith with counterparties builds a kind of bridge between Art. XX
GATT and the obligation to cooperate for the management and preservation of fish
stocks in EEZs and high seas under Articles 63, 64 and 118 UNCLOS
73
and other
agreements related to the latter.
74
The Appellate Body’s support for a multilateral approach to resolving conflicts
between trade and conservation concerns seems in fact to entail that trade measures
could be regarded as more “WTO-compatible” if they are embedded in a multilateral background and constitute the result of a cooperative attitude towards global
environmental issues. Therefore, it appears highly probable that trade measures
would pass the Art. XX test where they are adopted to enforce conservation fisheries
obligations under UNCLOS and UNCLOS implementing or related agreements.
75
Actually, the WTO Secretariat seems to have already acknowledged the legality
under WTO law of trade measures recommended by RFMOs. In discussing trade
restrictions adopted by ICCAT
76
and the Commission for the Conservation of
Antarctic Marine Living Resources (CCAMLR), it considered these measures as
“examples of appropriate and WTO-consistent (i.e., non-discriminatory) use of
trade measures in multilateral environmental agreements”.
77
Art. XX GATT would be tantamount to altering the rights and obligations of WTO Member States
in contravention to Art. 3(2) DSU, providing that “[r]ecommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements.”). At the
same time, it has been convincingly argued that “the duty to cooperate to solve international environmental problems can be understood not only as a discipline on the country contemplating unilateralism; it also can be regarded as a possible justification for unilateral measures. That is,
unilateral measures can be imposed if a country refuses to negotiate in good faith towards a cooperative solution to a commons problem” (see again Howse (2002), p. 508).
72 US-Shrimp (AB), para. 168. Here, again the Appellate Body made reference to various instruments of international environmental law—such as the Rio Declaration on Environment and
Development and Agenda 21, the Convention on Biological Diversity, the Convention on the
Conservation of Migratory Species of Wild Animals—that called for such “concerted and cooperative efforts” in addressing global environmental concerns. Even though UNCLOS was not mentioned here, this indirectly confirms that it can eventually serve as an important tool for interpreting
Art. XX GATT.
73 This is similarly suggested by Serdy (2002), p. 102. See also Rau (2002), p. 39.
74 See supra, note 38.
75 See Knox (2004), pp. 41−44; Tyler (2006), p. 84 (according to whom RFMOs and other fisheries
MEAs “are well poised to meet” the parameters established by Art. XX GATT’s chapeau).
76 See supra, note 58.
77 WTO Secretariat, WTO Committee on Trade and Environment, Environmental Benefits of
Removing Trade Restrictions and Distortions. The Fisheries Sector, 16 October 2000, para. 28.
The multilateral approach in terms of protection of the environment is also advocated by the 1996
report of the Committee on Trade and Environment (CTE): “the CTE endorses and supports multilateral solutions based on international cooperation and consensus as the best and most effective
way for governments to tackle environmental problems of a transboundary or global nature”
The Relationship Between International Trade Law and the Law of the Sea in the WTO…
Body, the need for a multilateral approach in that case also stemmed from the circumstance that the measures involved were intended to address an issue of global
concern.
72
The emphasis placed by the WTO adjudicating bodies on the obligation to negotiate in good faith with counterparties builds a kind of bridge between Art. XX
GATT and the obligation to cooperate for the management and preservation of fish
stocks in EEZs and high seas under Articles 63, 64 and 118 UNCLOS
73
and other
agreements related to the latter.
74
The Appellate Body’s support for a multilateral approach to resolving conflicts
between trade and conservation concerns seems in fact to entail that trade measures
could be regarded as more “WTO-compatible” if they are embedded in a multilateral background and constitute the result of a cooperative attitude towards global
environmental issues. Therefore, it appears highly probable that trade measures
would pass the Art. XX test where they are adopted to enforce conservation fisheries
obligations under UNCLOS and UNCLOS implementing or related agreements.
75
Actually, the WTO Secretariat seems to have already acknowledged the legality
under WTO law of trade measures recommended by RFMOs. In discussing trade
restrictions adopted by ICCAT
76
and the Commission for the Conservation of
Antarctic Marine Living Resources (CCAMLR), it considered these measures as
“examples of appropriate and WTO-consistent (i.e., non-discriminatory) use of
trade measures in multilateral environmental agreements”.
77
Art. XX GATT would be tantamount to altering the rights and obligations of WTO Member States
in contravention to Art. 3(2) DSU, providing that “[r]ecommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements.”). At the
same time, it has been convincingly argued that “the duty to cooperate to solve international environmental problems can be understood not only as a discipline on the country contemplating unilateralism; it also can be regarded as a possible justification for unilateral measures. That is,
unilateral measures can be imposed if a country refuses to negotiate in good faith towards a cooperative solution to a commons problem” (see again Howse (2002), p. 508).
72 US-Shrimp (AB), para. 168. Here, again the Appellate Body made reference to various instruments of international environmental law—such as the Rio Declaration on Environment and
Development and Agenda 21, the Convention on Biological Diversity, the Convention on the
Conservation of Migratory Species of Wild Animals—that called for such “concerted and cooperative efforts” in addressing global environmental concerns. Even though UNCLOS was not mentioned here, this indirectly confirms that it can eventually serve as an important tool for interpreting
Art. XX GATT.
73 This is similarly suggested by Serdy (2002), p. 102. See also Rau (2002), p. 39.
74 See supra, note 38.
75 See Knox (2004), pp. 41−44; Tyler (2006), p. 84 (according to whom RFMOs and other fisheries
MEAs “are well poised to meet” the parameters established by Art. XX GATT’s chapeau).
76 See supra, note 58.
77 WTO Secretariat, WTO Committee on Trade and Environment, Environmental Benefits of
Removing Trade Restrictions and Distortions. The Fisheries Sector, 16 October 2000, para. 28.
The multilateral approach in terms of protection of the environment is also advocated by the 1996
report of the Committee on Trade and Environment (CTE): “the CTE endorses and supports multilateral solutions based on international cooperation and consensus as the best and most effective
way for governments to tackle environmental problems of a transboundary or global nature”
The Relationship Between International Trade Law and the Law of the Sea in the WTO…