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

Abstract

States sometimes restrict imports to address environmental concerns that arise from conduct outside of their territory: common examples include deforestation 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 jurisdictional 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 international consensus as well as an openness to rights and norms from outside the trade regime.