312 Journal of the Spanish Institute for Strategic Studies N. 4 / 2014 With regard to the former, the exception set out in GATT Article XX (b) requires that the measure be necessary to protect human, animal or plant life and health, in other words, it has to be verified that the trade measure makes a decisive contribution to the resolution of the problem22 and that it is the least restrictive for achieving the objective of sustainable management of the fish stocks concerned (known as the “necessity test”).23 Indeed, the Commission itself, in the reasons for the Implementing Regulation, refers to several alternative measures which, while being less restrictive than the measures adopted, would not be effective enough to achieve the sustainable fishing of the stocks concerned.24 In any event, the Faroe Islands has the responsibility of proving that less restrictive alternatives would allow the objective to be achieved and that these are readily available to this State.25 However, in this case it is likely that the exception set out in GATT Article XX (g)26 would be applied, i.e., that the measures is justified on the grounds of the conservation of exhaustible natural resources, namely, the unsustainable fishing of herring stock. The Appellate Body has pointed out that even though a resource is renewable, this does not mean that it is inexhaustible, particularly considering that the possibility of renewing living resources has been affected in recent decades by the influence of human activity.27 As a result, this exception has been accepted for the protection of a wide 22 Report of the Appellate Body, case Brazil-Retreaded Tyres, paragraph 210. 23 According to the most recent case law, this involves weighing and balancing the relevant factors: “the relative importance of the common interests or values that the challenged measure is intended to protect, the contribution of the measure to the realization of the ends pursued by it and the restrictive impact of the measure on international commerce” (vide the panel report in the Brazil-Retreaded Tyres case, paragraph 7.104, citing the Appellate Body Reports in the Korea–Measures Affecting Imports of Fresh, Chilled and Frozen Beef cases in 2001 (DS161 and DS169), paragraph 164 and EC-Asbestos, paragraph 172). On this point, WTO case law has evolved, considering that in the past a least restrictive measure test was conducted, making it very difficult to justify a trade restriction because the challenged measure had to be inevitable, vide, for example, the panel report for the Thailand- Cigarettes case, paragraph 75. 24 Vide “recitals” 24 and 25 of the Implementing Regulation. 25 The burden of proof lies with the countries contesting the measure (vide the report of the Appellate Body in the Brazil-Retreaded Tyres case, paragraph 156). 26 LESTER, S., “The Faroe Islands Herring Dispute”, International Economic Law and Policy Blog, November 2013; available at: http://worldtradelaw.typepad.com/ielpblog/2013/11/the-faroe-islands-herring- dispute (last visited 13.7.2014) 27 The Appellate Body felt compelled to make this statement because some WTO members and contracting parties argued that this exception was originally conceived for the conservation of fossil resources. It therefore stated that recalling the explicit recognition by WTO Members of the objective of sustainable development and environmental protection in the preamble of the WTO Agreement, “we believe it is too late in the day to suppose that Article XX (g) of the GATT 1994 may be read as referring only to the conservation of exhaustible mineral or other non-living natural resources” (vide Report of the Appellate Body, case USA-Shrimp, paragraph 131).
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