WTO Jurisprudence on Protection of Marine Living Resources: Policy Considerations for the Chinese Belt and Road Initiative

Abstract

The World Trade Organization (WTO) aims at free trade between states. The Chinese Belt and Road Initiative (BRI) supports these aims. By improving infrastructure on the Maritime Silk Road, it facilitates the transport of goods. But the likely increase in transport of goods on the Silk Road may have a negative impact on the environment. This paper addresses whether states can use environmental concerns under WTO law as a legitimate obstacle to trade on the Maritime Silk Road. Under WTO law, WTO Members may apply trade-restricting measures to protect the environment. The balance between the protection of the environment and free trade has materialized in a number of cases in the WTO dispute settlement system. This paper focuses on two questions. First, it discusses whether a state can apply WTO law to protect marine living resources if they are outside the territory of the state. Second, it discusses whether pollution from transport of goods can be a legitimate reason to apply the WTO exceptions to protect the environment. The WTO quasi-judiciaries have accepted harvest methods of shrimps, harvest methods of tuna, and seal hunting as legitimate reasons, but have so far not tried pollution from transport. The paper concludes that states may protect migrating marine living resources outside their territories, and that restrictions on transport to protect marine living resources is a legitimate policy under WTO law. However, the legitimate basis for limiting vessels is reduced if there is strong enforcement of the environmental policies, which China has suggested in its BRI policies, and if China in general engages widely in multilateral environmental treaties. However, should China not take a lead in the protection of marine living resources and in seeking compliance with international environmental law, China becomes vulnerable to other states’ protectionist measures under the guise of protection of the marine living resources.