The Relationship Between International Trade Law and the Law of the Sea in the WTO Dispute Settlement Practice

UNCLOS has so far occupied a marginal place in the WTO case-law. Indeed, the only reference to UNCLOS is contained in the 1998 Appellate Body’s US-Shrimp report. Nevertheless, the paucity of references to UNCLOS in the WTO case-law stands in sharp contrast with the multiplicity of possible interferences and overlaps between the law of the sea and international trade law. The paper first examines the legal meaning and implications of the mention of UNCLOS in the US-Shrimp report. Next, it considers the WTO subsequent case-law with a view to assess whether and to what extent UNCLOS rules may have a bearing on the interpretation of WTO rules. After that, the paper deals with the issue of possible inconsistencies between UNCLOS and WTO law, in the light of the Swordfish dispute and the Atlanto-Scandian Herring Case. The analysis of these cases raises the question of the applicability of Art. XX GATT as a legal tool for solving conflicts between the law of the sea and international trade law. The final section addresses the implications of the current WTO negotiations (the Doha Development Round) for the relationship between UNCLOS and WTO, by focusing on the fisheries subsidies debate. This is an area where the respective goals of WTO (eliminate distortions in trade law) and UNCLOS (preserve marine resources) may be deemed to converge. Consequently, fisheries subsidies talks represent a unique opportunity for UNCLOS and WTO to realise a joint and mutually supportive contribution to sustainable development.