340
6 The Implications of the Doha Development
Round for the Relationship Between UNCLOS and WTO
The analysis above has shown that the coordination that can be achieved through the
rule-exception pattern of Art. XX GATT is intended to work on a case-by-case
basis, in a framework in which, inter alia, the WTO dispute settlement bodies are
not legally bound by their precedents.
78
Therefore, the general exceptions clause
cannot systematically guarantee the sustainable management of marine living
resources in accordance with UNCLOS.
An attempt to integrate environmental and sustainable development issues into
the international trade system is currently underway in the framework of the WTO
Doha Round of trade negotiations. In particular, it is worth mentioning the inclusion
in the agenda for reform of a number of issues directly relevant to the relationship
between WTO and UNCLOS.
79
These include, for instance, the relationship between
WTO and the Multilateral Environmental Agreements (MEAs)
80
and the issue of the
origin to be ascribed, under the Agreement on Rules of Origin (ARO), to fish caught
in the EEZ by distant water fishing States.
81
At Doha, the WTO member States also
(WTO Doc. WT/CTE/1, 12 November 1996, para. 171). Remarkably, the Panel in its report on
US–Shrimp. Recourse to Article 21(5) declared that the report of the CTE could be considered as
evidence of a “subsequent practice in the application of the treaty” under Art. 31(3)(b) VCLT or
alternatively as expression of the common opinion of WTO Member States: in either case it should
be taken into account in the interpretation of Art. XX GATT. See Panel Report, United StatesImport Prohibition of Certain Shrimp and Shrimp Products, Recourse to Article 21.5 by Malaysia,
WTO Doc. WT/DS58/RW, 15 June 2001, para. 5.56.
78 For an in-depth analysis of this topic, see Bhala (1999a, b, 2001).
79 See Ministerial Declaration adopted on 14 November 2001, Ministerial Conference, Fourth
Session Doha, 9-14 November 2001 (Doha Ministerial Declaration), 20 November 2001.
80 Given the pivotal role that the UNCLOS rules assign to RMFOs and RMFAs, it follows that, the
latter being qualified as MEAs, the issue of the relationship between UNCLOS and WTO in this
realm is strictly interconnected with that of the relationship between WTO and MEAs. UNFSA
and PSMA are also inserted in the list of MEAs contained in the latest updated version of the
Secretariat document entitled “Matrix of Trade Measures Pursuant to Selected Multilateral environmental agreements” (WTO Doc. WT/CTE/W/160/Rev.8, 9 October 2017).
81 The 1995 Agreement on Rules of Origin—which is part of the Annex 1A to the Agreement establishing the WTO—provides the basic criteria to determine where a certain good was made (according to Art. 1, the rules of origin are those “laws, regulations and administrative determinations of
general application applied by any Member to determine the country of origin of goods”). The
ARO also establishes, under Art. 4, the Committee on Rules of Origin (CRO), composed of the
representatives from each of the Members. The main task of the CRO is the Harmonization
Program of Rules of Origin, whose results should be incorporated in the ARO. The Program,
launched in 1995, was to be completed in 1998. Nevertheless, given the complexity of the issues
involved in the negotiations and the divergent views of the Member States over them, it has been
prolonged several times and has still to be concluded. In this framework, one of the more contentious questions is related to the origin of fish inside an EEZ. In July 2002, the CRO submitted 94
“core policy issues” to the WTO General Council for discussion and decision. The origin of “fish
taken from the sea of the exclusive economic zone” was included among the 12 more crucial of
them, thus requiring urgent and careful attention (Report by the Chairman of the Committee on
M. I. Papa
6 The Implications of the Doha Development
Round for the Relationship Between UNCLOS and WTO
The analysis above has shown that the coordination that can be achieved through the
rule-exception pattern of Art. XX GATT is intended to work on a case-by-case
basis, in a framework in which, inter alia, the WTO dispute settlement bodies are
not legally bound by their precedents.
78
Therefore, the general exceptions clause
cannot systematically guarantee the sustainable management of marine living
resources in accordance with UNCLOS.
An attempt to integrate environmental and sustainable development issues into
the international trade system is currently underway in the framework of the WTO
Doha Round of trade negotiations. In particular, it is worth mentioning the inclusion
in the agenda for reform of a number of issues directly relevant to the relationship
between WTO and UNCLOS.
79
These include, for instance, the relationship between
WTO and the Multilateral Environmental Agreements (MEAs)
80
and the issue of the
origin to be ascribed, under the Agreement on Rules of Origin (ARO), to fish caught
in the EEZ by distant water fishing States.
81
At Doha, the WTO member States also
(WTO Doc. WT/CTE/1, 12 November 1996, para. 171). Remarkably, the Panel in its report on
US–Shrimp. Recourse to Article 21(5) declared that the report of the CTE could be considered as
evidence of a “subsequent practice in the application of the treaty” under Art. 31(3)(b) VCLT or
alternatively as expression of the common opinion of WTO Member States: in either case it should
be taken into account in the interpretation of Art. XX GATT. See Panel Report, United StatesImport Prohibition of Certain Shrimp and Shrimp Products, Recourse to Article 21.5 by Malaysia,
WTO Doc. WT/DS58/RW, 15 June 2001, para. 5.56.
78 For an in-depth analysis of this topic, see Bhala (1999a, b, 2001).
79 See Ministerial Declaration adopted on 14 November 2001, Ministerial Conference, Fourth
Session Doha, 9-14 November 2001 (Doha Ministerial Declaration), 20 November 2001.
80 Given the pivotal role that the UNCLOS rules assign to RMFOs and RMFAs, it follows that, the
latter being qualified as MEAs, the issue of the relationship between UNCLOS and WTO in this
realm is strictly interconnected with that of the relationship between WTO and MEAs. UNFSA
and PSMA are also inserted in the list of MEAs contained in the latest updated version of the
Secretariat document entitled “Matrix of Trade Measures Pursuant to Selected Multilateral environmental agreements” (WTO Doc. WT/CTE/W/160/Rev.8, 9 October 2017).
81 The 1995 Agreement on Rules of Origin—which is part of the Annex 1A to the Agreement establishing the WTO—provides the basic criteria to determine where a certain good was made (according to Art. 1, the rules of origin are those “laws, regulations and administrative determinations of
general application applied by any Member to determine the country of origin of goods”). The
ARO also establishes, under Art. 4, the Committee on Rules of Origin (CRO), composed of the
representatives from each of the Members. The main task of the CRO is the Harmonization
Program of Rules of Origin, whose results should be incorporated in the ARO. The Program,
launched in 1995, was to be completed in 1998. Nevertheless, given the complexity of the issues
involved in the negotiations and the divergent views of the Member States over them, it has been
prolonged several times and has still to be concluded. In this framework, one of the more contentious questions is related to the origin of fish inside an EEZ. In July 2002, the CRO submitted 94
“core policy issues” to the WTO General Council for discussion and decision. The origin of “fish
taken from the sea of the exclusive economic zone” was included among the 12 more crucial of
them, thus requiring urgent and careful attention (Report by the Chairman of the Committee on
M. I. Papa