Settling Trade-Related Disputes Over the Protection of Marine Living Resources: UNCLOS or the WTO?

By Richard J. McLaughlin

This article addresses the concern of the United States and other developed nations that some nations may rely on the dispute settlement system in WTO/GATT to undermine several existing international agreements that advance environmental objectives through the use of trade restrictions. The article explores the trade/environmental implications of the 1982 United Nations Law of the Sea Convention (UNCLOS) and the World Trade Organization (WTO). The primary thesis of the article can be summarized as follows: First, trade restrictions imposed by the United States for marine conservation purposes may, under certain circumstances, provide a targeted State Party with the basis for a dispute settlement claim under UNCLOS. This refutes the contrary notion put forward by several scholarly commentators and the U.S. State Department, denying the applicability of the dispute settlement provisions of UNCLOS. Second, given this finding coupled with the dismal track record of WTO/ General Agreement on Tariffs and Trade (GATT) dispute settlement decisions on environmental matters, the United States should seriously consider UNCLOS as a potentially viable alternative forum to WTO/GATT for disputes over the conservation of marine resources.