O critério do nexo suficiente como elemento de verificação da extraterritorialidade de medidas comerciais ambientais na OMC

In the effort of promoting environmental protection, domestic regulations sometimes aim the safeguard of environmental goods which are not necessarily confined to the space within boundaries. In the context of the multilateral trading system, such measures can also evoke particular implications, and indeed the issue has already been brought to the attention of the dispute settlement mechanism (DSM) of the World Trade Organization (WTO), but still lacks further clarification. The present article analyses the sole tangible element provided by the DSM of the WTO, that is the criterion of sufficient nexus introduced by the Appellate Body in the US – Shrimp case. Given the vagueness of the expression, it is proposed greater concreteness to its interpretation, when analyzing the existence of such sufficient nexus, through the verification of the existence of Multilateral Environmental Agreements and/or erga omnes obligations arising from the protection of the global commons. This analysis, although focused on an international law overview of the problem, also considers the contemplation of domestic acts and legislation towards the same conservation goal, as well as scientific considerations on the matter. This study is proposed taking into consideration the fact that understanding this criterion and the way in which it is interpreted by the WTO DSM can actually legitimize the undertaking of domestic regulations for the protection of the environment