Problem
NOVADOR AND SASHIMIA
Both Novador and Sashimia are members of the WTO. Sashimia is also one of 12 fishing nations that are members of the Southern Atlantic Tuna Fishing Organization (SATFO). SATFO was established in 1998 and its members use it to regulate their fleets so as to prevent excessive fishing of tuna in the South Atlantic.
To promote the conservation of tuna, SATFO imposes both quantitative and qualitative restrictions on tuna fishing. To impose quantitative restrictions, SATFO calculates a total allowable catch (TAC) each year and allocates this catch limit among SATFO members through quotas. The members of SATFO negotiate the allocation of fishing quotas among themselves. SATFO also formulates qualitative restrictions that regulate the fishing process rather than directly limiting the amount of fishing. These regulations set minimum size (length and weight) requirements to prevent the harvesting of young tuna, ban certain types of fishing gear, close certain areas during certain seasons to allow for breeding, and require all SATFO members to monitor their fleets, collect data, and enforce SATFO regulations.
Novador is a country with a rapidly expanding fishing fleet. Fishing vessels from Novador have been fishing for tuna in the Southern Atlantic in increasing numbers in recent years, but Novador has not joined SATFO. SATFO has invited Novador to join, and Novador has been negotiating the terms of its membership, but they have been unable to reach an agreement. Novador has agreed to enforce all the qualitative regulations demanded by SATFO but refuses to accept the quota that SATFO wishes to impose on Novador. The formula used by SATFO calculates quotas based on the amount of tuna caught by a state in the prior three years and, for new members, allocates quotas based on their catch in the three years prior to the formation of SATFO (i.e., 1995-1997). Novador argues that this favors states that entered SATFO at its inception, before a quota was in place, and is unfair to Novador, which has only recently engaged in significant amounts of commercial fishing. Novador continues to expand its tuna fishing in the Southern Atlantic, defying demands by SATFO that Novador accept the quota proposed by SATFO.
As the world's leading consumer of tuna, Sashimia has the largest market for Southern Atlantic tuna in the world. The species of tuna caught in the Southern Atlantic is found only in that region and cannot be found in the Pacific Ocean, which surrounds the island nation of Sashimia. Sashimia is also the home base for the world's largest tuna fishing fleet, and it enjoys the largest quota of all SATFO members. Sashimia has led the campaign within SATFO to take action against nations like Novador, which fish for tuna in the Southern Atlantic without submitting themselves to SATFO restrictions. SATFO rules state that its members are free to take "appropriate action, whether unilaterally or collectively" against nations that fish for tuna in the Southern Atlantic without joining SATFO or implementing its regulations.
Sashimia has enacted a law that authorizes its executive branch to ban all tuna imports from any country that "undermines the SATFO conservation regime." The law requires advance notification so that the target country has an opportunity to argue that it is not in fact undermining the SATFO conservation program. The law also allows a target country to appeal an unfavorable decision to a Sashimian administrative agency that reviews such determinations. Pursuant to this law, Sashimia has unilaterally banned all tuna imports from Novador.
Novador has brought a complaint before the WTO, claiming that Sashimia's import ban violates WTO rules. The WTO has established a dispute settlement panel to rule on this claim. Evaluate Novador's claim and its prospects for success with its complaint. Explain the arguments you would expect each party to make to support its position.