Think Global, Act Unilateral? WTO Limitations on Trade Measures to Enforce Ocean Conservation
23 Pages Posted: 22 Sep 2017
Date Written: September 6, 2017
The traditional territory-based structure of international law makes protecting global common goods a major challenge. This is particularly true with respect to the ocean, an environment where overlapping areas under the jurisdiction of different states coexist with very mobile resources and a medium in which pollution can spread quickly. This paper examines recent developments that allow a greater role in enforcing fisheries conservation measures for consumer states and port states, affecting the law applicable de facto to fishermen and fishing vessels regardless of the flag they fly and the area where the fishing occurs, and considers the WTO-legality of conservation measures adopted by two major fish importers, the EU and the US. Following the sea change brought by the Appellate Body report in US – Shrimp, WTO law permits consumer states to impose requirements with respect to environmental conservation beyond their borders. The jurisprudence that authorizes the use of product specifications applicable abroad, subject essentially to non-discrimination requirements, would seem to permit port state measures that deny certain vessels freedom of transit. On the other hand, the WTO-consistency of country-wide sanctions for Members that fail to adopt and enforce conservation measures may depend on these measures finding support in multilateral instruments and decisions.
Keywords: WTO Law, Marine Resources, Ocean Conservation, Unilateralism, Sanctions
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