The Convention on International Trade in Endangered Species (CITES) secretariat has recently refused to approve export quotas for caviar from Caspian Sea sturgeon. This decision raises important issues of WTO law.
The first question is who would complain? It is most likely in this case that the exporting states would complain about import restrictions imposed by importing states. However, it would be surprising if these exporting states were to bring this case to the WTO.
Second, to what extent does compliance with CITES represent a defense to a claim of violation of GATT Article XI, which prohibits import and export quotas? The answer is that under WTO law, compliance with CITES is not directly a defense. On the other hand, Article XX(g) of GATT allows an exception for certain measures related to protection of exhaustible natural resources. It is not clear that this provision is available to importing states concerned about exhaustible natural resources in exporting states or in the global commons. But compliance with CITES would go a long way to establish compliance with the chapeau of Article XX , to the effect that the challenged measure may not constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade.
Third, there are 169 members of CITES and 149 members of the WTO. The knotty problem of whether in WTO dispute settlement to refer to a treaty that does not include all WTO members in its membership is not clearly resolved under the Vienna Convention on the Law of Treaties. In connection with interpretation under the VCLT, would the WTO treaty be interpreted differently depending on the other treaty obligations of the disputants? In connection with modification of the WTO treaty, is it possible for states to modify their WTO obligations by entering into other international legal norms? I believe that the other international legal norms are not directly applicable as law in WTO dispute settlement. This position rests on the mandate to WTO panels in the WTO Dispute Settlement Understanding. I also believe that the WTO treaty does not permit modification other than through the established procedures specified therein, and that this intent is respected under the VCLT.
