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The WTO, Self-Determination, and Multi-Jurisdictional Sovereignty

Part of: WTO EC-Seal Products Case

Published online by Cambridge University Press:  20 January 2017

Michael Fakhri
Michael Fakhri*
Affiliation:
University of Oregon School of Law
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In EC—Seal Products, the World Trade Organization (WTO) Appellate Body (AB) held that the European Union (EU) Seal Regime banning the importation of seal products could be justified under General Agreement on Tariffs and Trade (GATT) Article XX(a) as a measure necessary toprotect public morals. It also held that the indigenous communities (IC) exception under the EU Seal Regime is inconsistent with GATT Article I:1 (Most-Favored Nation) because it discriminated against commercial fishers in Canada and Norway and was applied in a manner that favored the mostly Inuit seal hunters of Greenland, and thus ran afoul of Article XX’s chapeau. Since the entire EU Seal Regime is not likely to be done away with, the most important question for Inuit communities is: how will the EU change the discriminatory aspects of the Seal Regime and IC exception? The EU faces an October deadlineto pass its new legislation and this remains a very live issue.

Type
Symposium: WTO EC-Seal Products Case
Information
AJIL Unbound , Volume 108 , 2014 , pp. 287 - 294
Copyright
Copyright © American Society of International Law 2014

References

1 Appellate Body Report, European Communities—Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/AB/R, WT/DS401/AB/R (Adopted June 18, 2014) [hereinafter Appellate Body Report, EC—Seal Products].

2 Regulation (EC) No 1007/2009 of the European Parliament and of the Council of 16 September 2009 on trade in seal products (Text with EEA relevance), 2009 O.J. (L 286) 36.

3 General Agreement on Tariffs and Trade 1994, Apr. 15, 1994,Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 UNTS 187.

4 Kevin McGwin, EU seal ban: Euro parliament evenly split on seals, Arctic J.(May 20, 2015).

5 People for the Ethical Treatment of Animals, Victory! World Trade Organization Affirms Right to Ban Seal Fur Products, PETA/BLOG (Mar. 25, 2014).

6 Inuit Furious as World Trade Organization Upholds European Union Seal Ban, Indian Country Today Media Network (May 23, 2014).

7 Inuit Tapiriit Kanatami, Media release, Inuit Decry WTO Appellate Decision to Uphold Discriminatory, Flawed Seal Ban (May 22, 2014).

8 Kamrul Hossain, The EU ban of the import of seal products and the WTO regulations: neglected human rights of the Arctic indigenous peoples?, 49 Polar record 154 (2013).

9 Dorothäe Cambou, The Impact of the Ban on Seal Products on the Rights of Indigenous Peoples: A European Issue, 5 Y.B. Polar L.online 389 (2013).

10 Inuit Tapiriit Kanatami.

11 Inuit Tapiriit Katanami, supra note 7.

12 Terry Audla, The Only People Making Money Off the Seal Hunt Are Anti-Sealing Campaigners, Huffington Post Canada Blog (Apr. 28, 2014).

13 Robert Howse et al., Sealing the Deal: The WTO’s Appellate Body Report in EC—Seal Products, 18 Asilinsights Issue 12 (June 04, 2014).

14 Government of Canada, Seals.

15 Panel Report, European Communities—Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/AB/R, WT/DS401/AB/R (Adopted June 18, 2014),para. 7.597[hereinafter Panel Report, EC—Seal Products].

16 Id.

17 European Commission, Commission Decision recognising the Greenland Department of Fisheries, Hunting and Agriculture (APNN) for the purposes of Article 6 of Commission Regulation (EU) No 737/2010 of 10 August 2010 laying down detailed rules for the implementation of Regulation (EC) No 1007/2009 of the European Parliament and of the Council on trade in seal products, Apr. 25, 2013, C(2013) 2277 final.

18 European Commission, Annex,Joint Statement by Canada and the European Union on Access to the European Union of Seal Products from Indigenous Communities of Canada to the Commission Decision on the Joint Statement by Canada and the European Union on Access to the European Union of Seal Products from Indigenous Communities of Canada, Aug. 18, 2014, C(2014) 5881 final Annex 1.

19 Government of Canada, Foreign Affairs, Trade and Development of Canada, News release, Canada Pursues Expanded Access and Opportunities in European Markets for Indigenous Sealers(Oct. 10, 2014,).

20 Joint Statement of Aleqa Hammond, Premier of Greenland, and Peter Taptuna, Premier of Nunavut Nuuk(July 2, 2014).

21 Appellate Body Report, EC—Seal Products, supra note 1, at para. 5.324.

22 Benedict Kingsbury, “Indigenous Peoples” in International Law: A Constructivist Approach to the Asian Controversy, in The concept of Indigenous Peoples in Asia 103 (Christian Erni ed., 2008).

23 Christopher C. Dykes, UPDATE: Research Guide onIndigenous Peoples in International Law(July/Aug. 2012).

24 United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295 (Oct. 2, 2007).

25 Convention concerning Indigenous and Tribal Peoples in Independent Countries (ILO No. 169), June 27 1989,28 ILM 1382 (1989).

26 Appellate Body Report, EC—Seal Products, supra note 1, at para. 2.4.

27 Panel Report, EC—Seal Products, supra note 14, atpara. 7.295.

28 Robert Knox, Strategy and Tactics, 21 Finnish Y.B.Int’l L.193 (2012).

29 In the matter of Section 53 of the Supreme Court Act, R.S.C., 1985, c. S-26; and in the matter of a Reference by the Governor in Council concerning certain questions relating to the secession of Quebec from Canada, as set out in Order in Council P.C. 1996-1497, [1998] 2 S.C.R. 217 (Can.).

30 Mohawk Nation Council of Chiefs of the Haudenosaunee Six Nations Confederacy, About the Mohawk Nation Council of Chiefs.

31 Dykes, supra note 23.

32 Derek Inmanet al., “We Will Remain Idle No More”: The Shortcomings of Canada’s ‘Duty to Consult’ Indigenous People, 5 Goettingen J.Int’l L. 251 (2013).

33 Appellate Body Report, EC—Seal products, supra note 1, at paras. 5.147, 5.161.

34 Case C-583/11 P, Inuit Tapiriit Kanatami and Others v. Parliament and Council, ECLI:EU:C:2013:625(2013).

35 UNHRC, Report of the Special Rapporteur on the right to food, Olivier De Schutter, UNDoc. A/HRC/22/50/Add.1 (2012).

36 Norden.

37 The Pacific NorthWest Economic Region Arctic Caucus.

38 Inuit Circumpolar Council-Alaska.

39 Inuit Circumpolar Council Canada.

40 Inuit Circumpolar Council Greenland.

41 Inuit Circumpolar Council Russia.

42 Arctic Council.

43 Canada against EU entry to Arctic Council because of seal trade ban, Canadian Broadcasting Corporation News (Apr. 29, 2009).

44 International Centre for Trade and Sustainable Development, Implementation moves ahead on WTO seal ban dispute (Sep. 15, 2014).

45 Kevin McGwin, EU seal ban: A seal of disapproval, The Arctic Journal (Feb. 18, 2015).

46 Tom Ayers Cape Breton Bureau, Seal hunt off Nova Scotia dormant as pelt market disappears, Herald News (Mar. 31, 2015).

47 Nina Lex, EU seal ban seen as threat to Newfoundland villages, Reuters (Aug. 7, 2009).

48 Terry Audla, Terry Audlaon Idle No More: The view from the (far, far) North, National Post (Jan. 29, 2013).