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The Conflicts and Resolutions between International Trade Law and the Law of the Sea

Eunah Seo 1

1순천향대학교

Accredited

ABSTRACT

International Trade Law and the Law of the Sea belong to International Public Law. In every areas, relevant contracting parties as legislatures try to make each different rule, and incompatible rules could be created, consequently. If one of the dispute parties invokes the incompatible rules and justify its violated measures, conflicts of rules may arise. Specifically, this is the circumstance that the measure violating WTO rules can be justified by the provisions under the law of the sea. Although there are no relevant accurate cases engaged in Korea, it is possible for WTO members including Korea to take the measures of trade sanction for the sake of preserving maritime resources. Therefore, discussion of this matter would be relevant and meaningful. In order to resolve conflicts of rules, explicit rules are provided into the agreements for intrinsic conflicts of rules as well as extrinsic conflicts of them, when relevant states contract the agreements. Article 311 of the law of the sea is a representative provision which expressly states the principle of lex posterior derogat legi priori. The provision of the priority of the 1982 agreement rather than the 1958 agreement is applied to corresponding objectives, so that this might not be considered the explicit rule for resolving conflicts of the incompatible rules. This provision, after all, is based by pacta tertiis nec nocent nec prosunt, providing an exclusion from application to the third parties who are likely to be influenced by the 1982 agreement. In case of no statement of explicit rules for resolving above conflicts of rules, lex posterior principle as general international law can be applied regardless of the explicit provisions. This principle has the intent which prevents former laws from affecting the latter laws, due to the latter might be regarded as enhanced and developed provisions. Article 30 of the Vienna Convention states this principle and this is the discussion whether this article can be applied or not. However, it is inappropriate to apply this rule, because of differences of the parties between international trade law and the law of the sea. The principle of Lex specialis derogat legi generali has no particular features compared to the lex posterior principle. These principles merely have roles in making somewhat orders in complicated international law for resolving conflicts of rules. There is another issue of applicable law, in spite of indirect discussion of this theme. The issue of substantial jurisdiction of the international tribunals can be relevant on it. The tribunal of the law of the sea allows rules which are not the ones of the law of the sea, under the article 293 of the agreement. On the other hand, the substantial jurisdiction of WTO dispute settlement body is restricted to the WTO covered agreements. However, the dispute parties are able to invoke the rules irrespective of WTO rules, so there are no differences of both tribunals with respect to substantial jurisdictions. Even though the case which can be justified by non-WTO rules such as some of the rules of the law of the sea, are brought to the WTO panel, it is unfortunate that there is no rule of resolving conflicts of the rules. Some cases such as Swordfish case and MOX Plant case had such conflict issues, but there was no explicit resolution stated. These cases just resulted in negotiation by relevant dispute parties. This means the relevant tribunals did not suggest the priority of the conflicting rules. This is of course comprehensible, since it is too complicated to resolve by means of the Vienna Convention. However, this might be abrupt conclusion, but now is the time to deviated from theoretical and political methods as negotiation of the dispute parties. I make bold to think that expanding exceptions of Article 20 of GATT and allowing the arbitrary and discriminatory measures which have intent to preserve maritime resources. Despite possible exploitation, it would be reasonable to amend the rules of international trade laws to support preservation of marine resources which are irrecoverable when they are damaged.

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