314 Journal of the Spanish Institute for Strategic Studies N. 4 / 2014 circumstances and does not constitute disguised protection of domestic production. Article 5 of Regulation 1026/2012 also refers to these requirements, together with the idea that the trade measures shall be proportionate to the objectives pursued. In reality, the requirements set out in the preamble were conceived to prevent abuse of the exceptions and to ensure that the measures are applied in good faith. For this purpose, various factors tend to be checked, such as the unilateral or extraterritorial nature of the measures, whether their application is sufficiently flexible and whether they serve a protectionist purpose.34 Let us assess whether the EU measure was likely to have met these requirements. Although unilateral coercive economic measures are admissible, they should only be adopted as a last resort, once all attempts to negotiate with the country likely to be affected by the measure have been exhausted.35 There is therefore an obligation to cooperate with the countries concerned prior to adopting the trade measure,36 a requirement that is also enshrined in the United Nations Convention on the Law of the Sea. According to the EU, the Community regulations and their implementing measures were adopted as a last resort, after several failed attempts to negotiate an agreement with the Faroe Islands and Iceland on the allocation of catch limits for North-Atlantic mackerel and Atlanto-Scandian herring stocks for the aforementioned countries, Norway and the EU.37 The obligation to cooperate can be inferred from a number of articles of Regulation 1026/2012 (particularly Articles 1 and 3, and the preamble). However, the EU would also have to prove that the terms of the negotiations could be reasonably assumed by the Faroe Islands, which is implicit in the requirement that negotiations be conducted in good faith. With regard to the extraterritoriality of the measure, invocation of GATT Article XX is admissible when there is a “sufficient link” between resources located outside 34 These factors are assessed in an endeavour to identify the possible causes or grounds for discrimination that is contrary to the GATT rules (vide the Report of the Appellate Body, case EC-Seal products, paragraph 5.305 in fine. 35 Report of the Appellate Body, case USA-Shrimp, paragraph 172. For more information on the negotiation requirement, vide NI, K.J., “Redefinition and Elaboration of an Obligation to Pursue International Negotiations for Solving Global Environmental Problems in Light of the WTO Shrimp/ Turtle Compliance Adjudication Between Malaysia and the United States”, Minnesota Journal of Global Trade, vol. 14, n. 1, 2005, pp. 111-140. 36 Compliance with the duty to cooperate does not necessarily have to result in an agreement; it is sufficient to demonstrate that negotiations were initiated, conducted in good faith and on an ongoing basis vide The Panel Report in the United States–Prohibition of Imports of Certain Shrimp and Shrimp Products-Recourse to Article 21.5 of the DSU by Malaysia– 2001(WT/DS58/RW), paragraphs 5.66 and 5.67. 37 Vide the European Commission press release on 20.8.2013 (IP/13/785) and the “recitals” of the Implementing Regulation.
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