Regional fisheries organizations and the World Trade Organization: compatibility or conflict?

The interaction between trade measures adopted by regional fisheries organizations (RFOs) and the rules of the World Trade Organization (WTO) contains possibilities for both compatibility and conflict. Many RFO trade measures are meant to be "consistent with international law" or "consistent with the rules of the WTO", which encompasses both the substantive WTO rules as well as the exceptions provided for by WTO law. There has yet to be a WTO dispute over a measure stemming from a multilateral environmental agreement (MEA) or an RFO, and one cannot, therefore, be certain how these will be treated by the WTO. Nonetheless, the WTO jurisprudence to date offers important indications as to the scope provided for by WTO rules for environmental measures.
This report assesses the RFO/WTO relationship by identifying the types of trade measures used or potentially used by RFOs; assessing the potential for conflict between RFOs and WTO by examining the relevant WTO rules and the jurisprudence; and delving deeper into the legal considerations and possible scenarios involving WTO challenges of RFO measures. On this basis, a set of conclusions and recommendations are offered.
Trade measures used, or potentially used, by RFOs aim to achieve various purposes, the most important of which is to ensure compliance with their conservation and management regimes. As such, most trade measures are aimed at combating illegal, unreported and unregulated ("IUU") fishing. These measures include:
- Requiring specified documentation on catches, from all vessels, as a condition of landing or transshipments. Several RFOs have documentation requirements as a condition of landing or transshipments, e.g. the Bluefin Tuna Statistical Document Program of the International Convention for the Conservation of Atlantic Tunas (ICCAT) and the Catch Documentation Scheme (CDS) of the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR). The participation of all fishing States in the documentation schemes is encouraged, even if they are non-parties. Similar documentation requirements can also apply to exports, e.g. in the case of the CCAMLR CDS.
- Prohibiting landings and transshipments (to RFO parties) from particular vessels. Some RFOs have also adopted trade measures aimed at particular vessels that are determined to be in non-compliance with their conservation and management measures, e.g. the Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific. The targets of such trade measures include vessels from both parties and non-parties, in particular, "flag of convenience" vessels.
- Trade-restrictive measures, such as import bans, against parties or non-parties, in fish products covered by an RFO. A few RFOs, e.g. the Commission for the Conservation of Southern Bluefin Tuna and ICCAT provide for trade-restrictive measures to be taken against States, with the aim of ensuring compliance with their conservation and management measures - Certification and labeling schemes. Some RFO treaties contain provisions that may lead to additional trade measures, e.g. the adoption of certification and/or labelling schemes such as that developed under the auspices of the Inter-American Tropical Tuna Commission.
The General Agreement on Tariffs and Trade (GATT), revised in 1994, is the primary WTO instrument addressing the issue of trade in goods. GATT requires that all WTO member states be granted equal trade advantages for "like" products (Article I); treat "like" imported products no less favourably than those produced domestically (Article III); and, with few exceptions, not restrict the quantity of exports or imports (Article XI). Trade measures applied by and in support of RFOs, which seek to discriminate in favour of goods produced in accordance with their conservation and management aims, are potentially in conflict with these provisions. If they were to be found to go against one of those provisions, the question would arise as to whether these measures would be covered by the general exceptions to GATT provided for in Article XX, which includes trade measures aimed at protecting human, animal or plant life or health or measures "relating to the conservation of exhaustible natural resources".
The WTO Agreement on Technical Barriers to Trade (TBT Agreement) is also relevant to some RFO trade measures. There is a presumption of conformity with the TBT Agreement if mandatory technical regulations (e.g. RFO documentation requirements) and voluntary standards (e.g. government sponsored voluntary ecolabelling schemes) are internationally agreed. Countries may depart from internationally agreed standards, but then the TBT Agreement establishes a set of criteria to ensure that the regulations or standards do not constitute "unnecessary barriers to trade". Two key issues are relevant to RFOs. One is whether RFO standards are "international standards". A second is whether the TBT disciplines cover certification and labelling schemes that are based on "non-product related production and processing methods (i.e. those that are not related to the actual physical characteristics of the end product in trade). If they are covered, then some certification and labelling schemes based 'sustainable' production requirements may come into conflict with the TBT Agreement.
In line with WTO procedures, specific disputes concerning an RFO trade measure would necessarily be brought by individual WTO member states against one or more other member states in response to the implementation of that trade measure by those states. In other words, such disputes would involve actions by parties to the RFO rather than the RFO itself. The most likely source of such a challenge would be WTO members that were not parties to the RFO, as parties would have played a role in shaping the development of the RFO trade measures.
The relevant WTO jurisprudence has mainly concerned the provisions of GATT. There is insufficient judicial experience with the TBT Agreement to know how the tests in that Agreement would be applied in the context of RFOs. Based on past cases, such a WTO challenge of an RFO trade measure would likely turn on the interpretation and application of GATT Article XX. Some general issues that a WTO dispute settlement panel might consider in adjudicating this include: the multilateral basis for the trade measure (e.g. the extent to which it reflects a global consensus); whether affected fishing States can participate in the RFO; the manner in which decisions to establish trade measures are taken; and the design of the trade measure. On this basis, most RFO trade measures should be able to survive WTO challenges. There is a global consensus, reflected in several instruments, on the necessity for such measures; most RFOs are open to all fishing States; most RFOs take decisions by consensus, while allowing for opting out; and the design of most trade measures is done through dialogue with affected countries and in consideration of the needs of developing countries. In addition, most RFO trade measures have been developed after efforts to deal with a serious environmental problem - for example, the significant decline of certain fisheries - have failed. They have been developed as a result of a multilateral process, in which, in general, all fishing nations have had an opportunity to participate. They tend to be tailored to the particular species in question and are subject to review.
Despite the results of the assessment in this study, that most RFO trade measures appear to be compatible with WTO law, some key challenges remain, which should be addressed both by the WTO and by MEAs and RFOs.
- The WTO, MEAs, RFOs, and other relevant international institutions, such as the United Nations Environmental Programme and Food and Agriculture Organization, should co-operate to establish a coherent legal framework that ensures the integrity of all multilaterally agreed trade measures in support of sustainable development, and the "mutual supportiveness" called for during the United Nations Conference on Environment and Development (UNCED). The result should be an unequivocal affirmation that MEAs, including RFOs, are the primary bodies that are competent to decide on the appropriateness of trade-related environmental measures. The WTO's role would be limited to providing advice to MEA processes on the design of trade measures, while WTO adjudication would only take place to test whether the implementation of an MEA trade measure was an inappropriate exercise in trade protectionism. Such an outcome would be an appropriate division of labour between MEAs and the WTO that would enhance sustainable development. This general relationship between the WTO and MEA trade measures is currently being considered within the WTO Committee on Trade and Environment, to which both CCAMLR and ICCAT have made presentations, and is subject to negotiations under the Doha Development Agenda (DDA). It remains uncertain as to whether positive results will emerge from these negotiations.
- The international community should affirm the legitimacy of certification and labelling based on non-product-related related PPMs. In principle the WTO should be called upon to establish appropriate rules to ensure the consistency of these instruments with WTO, however at present achieving a positive result in the WTO seems politically unfeasible. Therefore, it is unlikely that such a result will be possible under the current DDA negotiations. In the short term, States and NGOs should maintain the practical status quo of continuing to develop and improve these schemes, while simultaneously devising a strategy aimed at the WTO and other international bodies to create the political conditions and an appropriate negotiating forum that will lead to a legal confirmation of the use of such certification and labelling.
- The WTO should affirm basic sustainable development principles provided for in UNCED, such as the precautionary principle, although it should not seek to determine the content of these principles, since it has no such competence or expertise. Resolution of disputes involving such principles should involve consultations with MEA or RFO secretariats, as well as possible requests for Advisory Opinions from the International Court of Justice. RFOs should provide for effective means for parties to resolve conflicts and disputes before they escalate to the point where trade measures are imposed, and provide as much multilateral guidance as possible on how their members should implement trade measures pursuant to RFO decisions.
- RFOs and the CBD Secretariat should co-operate to establish greater synergy between each other's processes, for example, through capacity-building and financial assistance, so as better to tackle the root causes of non-compliance with fisheries conservation measures. Further areas of such synergy include the application of the precautionary principle, and the use of incentive measures, such as labelling.