Trade Measures to Address Environmental Concerns in Faraway Places: Jurisdictional Issues

Published date01 November 2014
AuthorMargaret A. Young
Date01 November 2014
Trade Measures to Address Environmental
Concerns in Faraway Places: Jurisdictional Issues
Margaret A. Young
States sometimes restrict imports to address environ-
mental concerns that arise from conduct outside of
their territory: common examples include deforesta-
tion in foreign places or illegal fishing in the high seas.
Apart from the need to comply with the agreements of
the World Trade Organization (WTO), the adoption of
such trade measures gives rise to two jurisdictional
issues: first, the importing State might be alleged to be
engaging in extraterritorial jurisdiction; and second,
the importing State may affect the economic interests
of indigenous communities. This article analyzes WTO
jurisprudence and other international instruments. It
shows that jurisdictional issues are underpinned by
sovereignty – of the importing State, the exporting
State and even other groups. If there is a need for a
nexus between the importing State and the relevant
product or measure in order to fall within any juris-
dictional limitations of the WTO agreements (which
remains uncertain), it will be more easily satisfied if
environmental problems impact upon the ‘public
morals’ of citizens or consumers, as was found in the
recent challenge to the European Union’s ban on seal
products. However, the complex needs and interests of
other States must also be considered, especially if the
trade measures impact on the interests of indigenous
peoples, and on the established or emerging legal
arrangements between indigenous peoples and
domestic governments. The design and application of
trade measures to address environmental concerns
requires flexibility and a commitment to seeking inter-
national consensus as well as an openness to rights
and norms from outside the trade regime.
When the World Trade Organization (WTO) became a
new regime1twenty years ago, a major debate was
occurring within the trade and environment commu-
nity. The debate was whether unilateral trade measures
– such as bans on imports, quotas, tariffs, product-
labelling requirements and other policies – that
addressed environmental challenges arising outside of
the jurisdiction of the importing state were permissible
under trade law. The General Agreement on Tariffs and
Trade (GATT) – first enshrined in 1947 – is silent on
this issue; key provisions of GATT Article XX provide
that countries should not be prevented from adopting
or enforcing certain trade measures where the mea-
sures are ‘necessary to protect public morals’, ‘neces-
sary to protect human, animal or plant life or health’ or
relate ‘to the conservation of exhaustible natural
resources’, with no express jurisdictional limit.2The
debate raged during a trade dispute over a United
States embargo on tuna fished in ways that harmed
dolphins within and outside of American coastal juris-
diction. Many developing countries saw this measure as
representing a ‘new wave of environmental colon-
ialism’.3The 1991 GATT Panel report – never
adopted – found the American embargo to have ‘extra-
jurisdictional application’ and held this to be impermis-
sible under the terms of the GATT.4This position
shifted with the institutionalization of the WTO in 1994
(which, among other things, introduced the principle of
sustainable development into the GATT’s preamble). In
1998, the newly established Appellate Body ruled on a
United States ban on shrimp designed to protect sea
turtles,5and noted that there was a sufficient nexus
between the sea turtles and the importing country given
that waters subject to American jurisdiction were tra-
versed by the migratory animals.
1I am drawing upon def‌inition of regimes as ‘sets of norms, decision-
making procedures and organisations coalescing around functional
issue-areas and dominated by particular modes of behaviour,
assumptions and biases’. M.A. Young, ‘Introduction: The Productive
Friction between Regimes’, in: M.A. Young (ed.), Regime Interaction
in International Law: Facing Fragmentation (Cambridge University
Press, 2012), 1, at 11. This def‌inition builds on works such as S.
Krasner, ‘Structural Causes and Regime Consequences: Regimes as
Intervening Variables’, in: S. Krasner (ed.), International Regimes
(Cornell University Press, 1983), 1; and A. Fischer-Lescano and G.
Teubner, ‘Regime-Collisions: The Vain Search for Legal Unity in the
Fragmentation of Global Law’, 25:4 Michigan Journal of International
Law (2004), 999.
2General Agreement on Tariffs and Trade 1994 (Marrakesh, 15 April
1994; in force 1 January 1995) (‘GATT’), Article XX (a), (b), (g).
3I.M. Porras, ‘The Rio Declaration: A New Basis for International
Cooperation’, 1:3 Review of European Community and International
Environmental Law (1992), 245.
4GATT Panel Report 3 September 1991, United States –Restrictions
on Imports of Tuna, DS21/R (‘US-Tuna I’).
5WTO AB 6 November 1998, United States – Import Prohibition of
Certain Shrimp and Shrimp Products, WT/DS58/AB/R (‘US-Shrimp’).
Review of European Community & International Environmental Law
RECIEL 23 (3) 2014. ISSN 2050-0386 DOI: 10.1111/reel.12096
© 2014 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.
In recent times, questions of jurisdiction have become
more complex with the acknowledgement that trade
measures seeking to address environmental concerns
arising abroad may impact upon indigenous peoples
and other groups such as artisanal and subsistence
fishers, forest dwellers or Inuit seal hunters. Irrespec-
tive of legal status, these people may have a continuous
connection to the land or natural resources that pre-
dates formal settlement, and may be forced to alter
income-generating activities due to the policies of
States other than the ones in which they live.6When the
European Union (EU) imposed a ban on seal products
in 2009, it exempted trade from Inuit and other indig-
enous communities in an attempt to reconcile these
interests. The challenge to the EU’s ban by Canada and
Norway forced the Appellate Body to address this issue
for the first time.7While the case arguably rendered
moot the question of the GATT’s jurisdictional limita-
tions (because, although the ban extended to products
from seal hunts conducted outside EU territory, the
jurisdictional link to the EU was established by the
sense of moral ‘indignation and revulsion’8held by EU
citizens and consumers at home), it impacted on sover-
eign controversies elsewhere.
In this article, I address these jurisdictional issues in
two parts. First, I determine whether trade measures
addressing environmental concerns arising abroad
violate any jurisdictional limitations of the GATT. This
requires a close reading and textual analysis of WTO
jurisprudence and related literature on sovereignty and
jurisdiction in public international law. Second, I
examine the situation of trade measures addressing
environmental concerns abroad which impact upon
indigenous peoples or other groups. This requires an
examination of the EC-Seals decision and a review of a
broader set of norms and principles from other inter-
national regimes, including the United Nations Decla-
ration on the Rights of Indigenous Peoples (UNDRIP).9
In the third part, I offer some tentative conclusions
from the perspective of sovereign States (and their
trade law commitments) and from the perspective of
indigenous peoples or other groups. My aim here is not
to provide a normative account of the incorporation of
indigenous issues into the trading regime – which
would be a complex and difficult task, harder even than
accounting for the WTO regime’s treatment of ‘devel-
oping countries’ and associated questions about the
differentiation of socio-economic groups within coun-
tries.10 Instead, limited observations are made about
the special quandaries currently arising when WTO
members seek to use trade measures to deal with envi-
ronmental challenges in remote places, especially when
such measures affect particular communities who may
have faced historic injustice in dealing with sovereign
rulers and whose cultural or other practices may be
affected by the relevant trade measures. Thus, the
article is a reflection on ‘trade and the environment’
(noting that the WTO regime’s approach to unilateral
trade measures has become more nuanced and sensi-
tive over time), but also points to emerging issues
which, I argue, require at the very least an openness on
the part of the WTO regime to other legal regimes.
Addressing environmental concerns through trade
measures gives rise to fears of protectionism. When the
concerns are manifested outside of the jurisdiction of
the importing State, these fears morph into concerns
about a foreign State’s interference in domestic affairs,
and thus give rise to allegations of exercises of extrater-
ritorial jurisdiction. This section discusses these issues
by: (i) giving an historic overview of the apprehension
that trade measures to protect the environment could
be a mask for protectionism; (ii) differentiating
between trade measures addressing environmental
concerns within and outside the territory of the import-
ing State; (iii) setting out the current jurisprudence on
the need for a sufficient nexus between the importing
State and the relevant environmental concern; and (iv)
illustrating how trade measures to address environ-
mental concerns might be necessary to protect public
morals, as argued for the first time in the EC-Seals case.
6As an example of this scenario, recent efforts within the United
Nations Framework Convention on Climate Change (Rio de Janeiro,
9 May 1992; in force 21 March 1994) (‘UNFCCC’) to reduce emis-
sions from deforestation and forest degradation (REDD+) have
focused on creating f‌inancial incentives for the preservation of tropi-
cal forests. Yet indigenous communities have disputed that they
should alter their forest practices to address a global environmental
challenge that they have not caused (and expressed scepticism that
they will receive compensation from the State bureaucracies that
have historically marginalized them). See, most recently, the Warsaw
Framework for REDD+. See further UNFCCC, Report of the Confer-
ence of the Parties on Its Nineteenth Session, Warsaw, 11–23
November 2013 (UN Doc. FCCC/CP/2013/10, 31 January 2014), at
paragraph 44.
7WTO DS 25 November 2013, European Communities – Measures
Prohibiting the Importation and Marketing of Seal Products,
WT/DS400/R, WT/DS401/R, (‘EC-Seals, Panel’) WTO AB 18 June
2014, European Communities – Measures Prohibiting the Importation
and Marketing of Seal Products, WT/DS400/AB/R, WT/DS401/AB/R
(‘EC-Seals, AB’).See also G. Marceau, ‘A Comment on the AB
Report in EC-Seal Products in the Context of the Trade and Environ-
ment Debate’, 23:3 Review of European, Comparative and Interna-
tional Environmental Law (2014).
8The phrase is from the European Commission proposal cited in
EC-Seals, Panel, n. 7 above, at paragraph 7.395.
9Declaration on the Rights of Indigenous Peoples (UN General
Assembly Resolution A/RES/61/295, 13 September 2007)
10 See, e.g., how these questions are posed in the climate change
regime: D. Farber, ‘Beyond the North-South Dichotomy in Interna-
tional Climate Law: The Distinctive Adaptation Responsibilities of the
Emerging Economies’, 22:1 Review of European, Comparative and
International Environmental Law (2013), 42.
© 2014 John Wiley & Sons Ltd

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