Law of the sea aspects of the negotiations in the WTO to harmonise rules of origin

International Journal of Marine and Coastal Law

Volumn 22, Issue 2, 2007, Pages 235-256

  Serdy, Andrew ^a,b  

^a UNIVERSITY OF SOUTHAMPTON   (United Kingdom)

^b AUSTRALIAN NATIONAL UNIVERSITY   (Australia)

Author keywords

[No Author keywords available]

Indexed keywords

EXCLUSIVE ECONOMIC ZONE; FISHERY MANAGEMENT; FISHERY POLICY; INTERNATIONAL LAW; LAW OF THE SEA; MINERAL; NEGOTIATION PROCESS; RECOVERY; WORLD TRADE ORGANIZATION;

EID: 34547937335     PISSN: 09273522     EISSN: 15718085     Source Type: Journal    
DOI: 10.1163/157180807781361557     Document Type: Article

References (70)

1. Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, opened for signature at New York, 4 December 1995; United Nations Treaty Series (hereinafter UNTS) Vol. 2167, p. 3.
2. See in particular ibid., Articles 8 to 13.
3. At the Review Conference held on 22-26 May 2006 in accordance with ibid.
4. Article 36, many delegations called for new commissions to fill gaps in the area and species coverage of existing ones: see UN doc A/CONF.210/2006/15 (5 July 2006), Report of the Review Conference on the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, paragraph 72. The calls were largely reflected as recommendations of the Conference in the Outcomes document which forms the Annex to the Report; see paragraphs 16 and 18(c). Especially noteworthy was that the main lines along which delegations divided in the Review Conference were not coastal States against distant-water fishing States, but parties to the Agreement against non-parties; in the latter States that have remained outside the Agreement because they consider it overly restrictive of coastal States' rights made common cause with those who are not parties because they regard the high seas boarding and inspection provisions as impinging unacceptably on the exclusive jurisdiction of the flag State on the high seas: see, e.g., the International Institute for Sustainable Development's Earth Negotiations Bulletin Vol. 7, No. 61, "Summary of the UN Fish Stocks Agreement Review Conference: 22-26 May 2006," (visited on 26 January 2007).
5. The Doha Round is named after the site of the WTO's Fourth Ministerial Meeting in November 2001 at which the decision was made to launch it: WTO doc WTZMIN(01)/ DEC/W/1 (14 November 2001).
6. Apart from the rules of origin negotiations, the built-in agenda has, or originally had, over 30 items: the principal ones are listed at (visited on 29 January 2007). For a useful general discussion of rules of origin and the history of attempts to harmonise them, see M.J. Trebilcock and R. Howse, The Regulation of International Trade: Political Economy and Legal Order, 3rd edn. (London, New York: Routledge, 2004), at 189-192.
7. See, e.g., L. Block and R. Grynberg, "EU Rule of Origin for ACP Tuna Products (HS Chapter 16.04)", in S. Bilal and R. Grynberg (eds), Navigating New Waters: A Reader on ACP-EU Trade Relations (London: Commonwealth Secretariat, 2007), Vol 2, pp 25-46,
8. which criticises the rules of origin in the Cotonou Agreement (Partnership Agreement between the members of the African, Caribbean and Pacific Group of States, of the one part, and the European Community and its Member States, of the other part, Cotonou, 23 June 2000, Official Journal L 317, 15 December 2000, p. 3) as applied to canned tuna and tuna loins. Rules of origin for fish in the ACP-EU preferential context have been also been analysed in M. McQueen, "Lomé and the Protective Effect of Rules of Origin," (1982) 16 Journal of World Trade Law 119 at 130
9. and R. Grynberg, Handicapped Infants and Delinquent Parents: Lomé Convention Rules of Origin and the Solomon Islands Tuna Industry (European Centre for Development Policy Management (EPCDM) Working Paper No. 37;
10. Maastricht: ECDPM, 1997). The author is grateful to an anonymous referee for pointing out that the measures found to be inconsistent with GATT Article XI: 1 by the Panel in the second Tuna-Dolphin case (United States-Restrictions on Imports of Tuna, GATT doc DS29/R, 16 June 1994) were in effect selective import prohibitions according to the country of origin of the product: see paragraph 4.1, paraphrasing Australia's third-party submission. More germane to the matters canvassed in mis article, the EEC as complainant also observed (ibid., paragraph 3.87) that one of the measures, the "intermediate nation" embargo, struck more forcefully at the EEC than the US may have intended, as much of its imported tuna "was actually of EEC origin, since it was caught by EEC vessels although unloaded in ports of third states."
11. The ARO forms part of Annex IA to the Agreement Establishing the World Trade Organization, done at Marrakesh, 15 April 1994 (hereinafter the WTO Agreement), UNTS Vol. 1867, p. 154. The English text of the ARO begins at UNTS Vol. 1868, p. 397.
12. ARO, supra n. 6, Article 1(1).
13. Views to this effect have been expressed independently of each other to the author by trade officials of both the Australian and New Zealand Governments.
14. ARO, supra n. 6, Article 1(2). GATT 1994 consists of the original 1947 General Agreement on Tariffs and Trade (GATT 1947, UNTS Vol. 55, p. 187),
15. together with a number of instruments and decisions of the contracting parties to GATT 1947 as maintained in force by the WTO Agreement, supra n. 6, specifically by the General Interpretative Note to Annex IA, UNTS Vol. 1867, p. 187 at 190-191.
16. This provision reads, in relevant part: With respect to customs duties and charges of any kind imposed on or in connection with importation or exportation or imposed on the international transfer of payments for imports or exports, and with respect to the method of levying such duties and charges, and with respect to all rules and formalities in connection with importation or exportation,... any advantage, favour, privilege or immunity granted by any contracting party to any product originating in or destined for any other country shall be accorded immediately and unconditionally to the like product originating in or destined for the territories of all other contracting parties.
17. J.A. LaNasa III, "Rules of Origin and the Uruguay Round's Effectiveness in Harmonizing and Regulating Them" (1996) 90 American Journal of International Law 625 at 627-629.
18. ARO, supra n. 6, Articles 2(g) and 3(e).
19. Ibid., Article 2(c).
20. Ibid., Articles 2(e) and 3(d).
21. Ibid., Article 2(f)
22. The date of entry into force is given at UNTS Vol. 1867, p. 154 by reference to Art. XTV(I) of the WTO Agreement, supra n. 6, and its cross-reference to paragraph 3 of the Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations (whose English text is at UNTS Vol. 1867, p. 14).
23. The first integrated negotiating text, circulated as WTO Committee on Rules of Origin, Integrated Negotiating Text for the Harmonization Work Programme, Note by the Secretariat (WTO doc G/RO/W/13 (24 May 1996)), was updated several times before a further consolidated text was issued as WTO doc G/RO/41 (3 September 1999), itself since updated; see WTO Committee on Rules of Origin, Integrated Negotiation Text for the Harmonization Work Programme, Overall Architecture, Note by the Secretariat (WTO doc G/RO/45/Rev.2 (25 June 2002)) for WTO document numbers of the successive updates.
24. WTO General Council, Minutes of Meeting held in the Centre William Rappard on 19-20 December 2001 (WTO doc WT/GC/M/72 (6 February 2002)), paragraphs 99 and 100.
25. Report by the Chairman of the Committee on Rules of Origin to the General Council, WTO doc G/RO/52 (15 July 2002).
26. WTO General Council, Minutes of Meeting held in the Centre William Rappard on 10-12 and 20 December 2002 (WTO doc WT/GC/M/77 (13 February 2003)), at paragraph 158.
27. WTO Committee on Rules of Origin, Minutes of Meeting of 3 October 2003 (WTO doc G/RO/M/43 (9 December 2003)), at paragraphs 4.2 and 4.3. The Chairman's proposal is referred to in this report by a document number, but it is not a public document (anonymous personal e-mail communication from the WTO Secretariat, 6 July 2006).
28. Ibid., at paragraph 4.5.
29. WTO General Council, Minutes of Meeting held in the Centre William Rappard on 27-28 July 2006 (WTO doc WT/GC/M/103 (10 October 2006)), at paragraphs 165-166.
30. Supra n. 17 (first-mentioned document).
31. Supra n. 17 (last-mentioned document).
32. In WTO doc G/RO/W/95 (28 November 2002).
33. This analysis of Colombia's proposed text is taken from the CRO Chairman's summary at p. 7 of WTO doc G/RO/52, supra n. 19. Alternative text 3 itself is opaque in its wording, but the Chairman's view is one possible reading of it, and he will have had the benefit of listening to the debate, including no doubt Colombia's explanation of its text, in the meetings of the CRO.
34. For the latter see ibid., at p. 6.
35. Done at Montego Bay, 10 December 1982, UNTS Vol. 1833, p. 3.
36. Ibid., Article 19(1) and (2)(i).
37. Sedentary species in the EEZ are treated separately below.
38. See the interventions by Brazil in defence of its chartering interests in the 2002 meetings of the International Commission for the Conservation of Atlantic Tunas (ICCAT): "Report of the Joint Meeting of the Compliance Committee and PWG" (Annex 12 to Proceedings of the 13 th Special Meeting of the International Commission for the Conservation of Atlantic Tunas (Bilbao, Spain, October 28-November 4, 2002)
39. (hereinafter ICCATSM13 Report), in ICCAT, Report for Biennial Period 2002-03 Part I (2002), 284 at 286 (paragraph 2.1.13), 287 (paragraph 2.2.6,
40. echoed by Namibia at paragraph 2.2.15), 288 (paragraph 2.2.20) and289 (paragraph 2.2.29), as well as by Brazil and Namibia in the plenary meeting: ICCATSM13 Report, ibid, 34 at 36
41. (paragraph 7.2). The EC had unsuccessfully proposed to restrict chartering of vessels to those flagged to States and entities that are members of, or formally cooperating with, ICCAT: see "Draft Resolution by ICCAT for a Bluefin Tuna, Swordfish and Bigeye Tuna Action Plan (Trade Measures for non-Contracting Parties, Entities or Fishing Entities) Proposed by EC," in Resolutions not Adopted (Annex 9 to ICCATSM13 Report), ibid., 199 at 201 (paragraph 10(f)).
42. The recommendation on chartering ultimately adopted (Recommendation by ICCAT on Vessel Chartering (Annex 8.21 to ICCATSM13 Report), ibid., 184)
43. allows chartering "predominantly as an initial step in the fisheries development of the chartering nation" for a period "consistent with the development schedule of the chartering nation" but places stringent conditions on it, including explicit agreement by the flag State of the chartered vessel to apply and enforce ICCAT's conservation and management measures: see paragraphs 1 and 3. The chapeau, however, completely exempts bareboat charters, presumably on the basis that these may involve a change of flag to that of the chartering State for the duration of the charter: see AdemunOdeke, "An Examination of Bareboat Charter Registries and Flag of Convenience Registries in International Law" (2005) 36 Ocean Development and International Law 339 at 345.
44. WTO Committee on Rules of Origin, First Report to the Committee on Rules of Origin: Results of the First Phase of the Rules of Origin Harmonization Work Programme, Note by the Secretariat (WTO doc G/RO/2 (3 November 1995)), in particular paragraphs 58 to 66.
45. Ibid, paragraph 60.
46. Ibid., paragraph 61.
47. Ibid., paragraph 62.
48. Morocco was doubtless referring to Articles 17(2) and 18(1) and (2) of the UN Fish Stocks Agreement, supra n. 1, and Article III(1)(a), (2) and (3) of the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, Rome, 24 November 1993, UNTS Vol. 2221, p. 93,
49. both now providing in very similar terms that parties to them must not give that authorisation unless they can effectively exercise their responsibilities in relation to these vessels. The State party must ensure that its vessels comply with the conservation and management measures adopted by any fisheries commission of which it is a member or with which it is cooperating, and refrain from fishing for any stock managed by a commission of or with which it is not. The requirement of a positive act of licensing or authorisation ensures at least some level of consciousness by the flag State of the level of fishing pressure it exerts on the high seas, and engenders awareness that it is internationally responsible for fishing activities on the high seas by vessels it flags. These may well be the seeds of an incipient trend towards a broadening of the notion of State responsibility in international fisheries law. In general, States are not responsible for the activities of persons or vessels having their nationality-but the provisions just cited could be used as the basis of an argument that high seas fishing is an exception. Although State responsibility is usually conceived as confined to the context of a breach of international law, e.g., in the International Law Commission's Articles on Responsibility of States for Internationally Wrongful Acts, in United Nations, Report of the International Law Commission Fifty-third session (23 April-1 June and 2 JuIy-10 August 2001, General Assembly Official Records, Fifty-sixth Session, Supplement No 10 (UN doc A/56/10), 43-59,
50. which inter alia set out rules for attributing responsibility for acts to States in certain circumstances where a breach of an international obligation has occurred, this need not be a serious obstacle to this trend. It should not be excessively difficult to establish a breach either of the obligations cited above, or, for States not party to the relevant treaty, of the more general customary international law obligation to cooperate on high seas fisheries elaborated in Articles 117-119 of the LOSC, supra n. 29.
51. WTO doc G/RO/2, supra n. 33, paragraph 63.
52. Ibid., paragraph 64.
53. Making such an inspection mandatory would be a sensible step if the foreign fishing is limited by catch (limitation by effort is more effectively monitored in other ways). A pre-fishing inspection would be optional-vessels would be informed that their holds would be deemed to have been empty on arrival in the EEZ unless they reported the amount of fish in them at the time of entry and proceeded to a coastal State port for verification of this.
54. WTO General Council, Minutes of Meeting held in the Centre William Rappard on 8 and 31 July 2002 (WTO doc WT/GC/M/75 (27 September 2002)), paragraphs 173 (India) and 180 (Philippines).
55. R.R. Churchill and A. V. Lowe, The law of the sea (3rd edn.) (Manchester: Manchester University Press, 1999), at 160-161.
56. LOSC, supra n. 29, Article 56(1 )(a).
57. Note that the problem would also arise under a flag-State origin rule in the EEZ for vessels permitted to fish in the coastal State's territorial sea (although, this close to the coast, the loss in efficiency from a pre- or post-fishing port call to separate fish of coastal State origin temporally from those of flag-State origin might well be much smaller).
58. Supra n. 1.
59. See, e.g., the paragraphs of the Report of the Review Conference on the Agreement and its Annex cited supra n. 2.
60. Conservation Measure 10-05 (2006) of the Commission for the Conservation of Antarctic Marine Living Resources, Catch Documentation Scheme for Dissostichus spp. (visited on 30 January 2007)
61. seems to be the most stringent of its type in this regard. See also the Statistical Document Programmes for Atlantic bluefin tuna, bigeye tuna and swordfish maintained by ICCAT, whose requirements are set out in a series of unconsolidated recommendations and resolutions grouped conveniently in ICCAT doc PLE-12/2006, "Compendium [of] Management Recommendations and Resolutions Adopted by ICCAT for the Conservation of Atlantic Tunas and Tuna-Like Species," 142-184 (visited on 30 January 2007),
62. and that of the Commission for the Conservation of Southern Bluefin Tuna for the eponymous species, the most recent version of which is at (visited on 30 January 2007).
63. Many of the European Community's fisheries agreements have, it seems, been extracted from developing countries by restrictive preferential rules of origin in the Cotonou Agreement relating to fish; see especially Block and Grynberg, supra n. 5, at 39. While little can be done about this in a non-preferential context, the method proposed here would, it is suggested, be more conducive to transparency.
64. See Statute of the Enterprise (Annex IV to the LOSC, supra n. 29), Article 1(1). The fact that, pursuant to the Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, done at New York, 28 July 1994 (UNTS Vol. 1836, p. 3), Annex, Section 2(1) the functions of the Enterprise are being carried out by the Secretariat of the ISA until it is in a position to operate independently, has no bearing on this analysis.
65. ISA doc ISBA/7/C/4 (22 June 2001), Status of contracts for exploration issued in accordance with the Regulations for Prospecting and Exploration for Polymetallic Nodules in the Area, paragraph 5.
66. See the home page of the Interoceanmetal website at (visited on 30 January 2007).
67. Such joint ventures are provided for in Section 2(5) of the Annex to the Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, supra n. 48.
68. As will by now be clear, it is immaterial whether or not this solution of last resort is satisfactory from any given viewpoint, since, if it is not, the remedy would be in the consortium's own hands through the proposed nomination power.
69. The author is not wholly convinced, however, that origin would have much worth as a bargaining chip in the coastal State's hands and, even if it did, that State would not be under any compulsion to use it.
70. Adapted with minor presentational alterations for ease of reference from WTO doc G/RO/45/Rev.2, supra n. 17, at 8-11.