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European Communities—Measures Prohibiting the Importation and Marketing of Seal Products

Published online by Cambridge University Press:  20 January 2017

Gregory Shaffer  and
David Pabian
Gregory Shaffer
Affiliation:
Board of Editors
David Pabian
Affiliation:
University of Minnesota
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Extract

On May 22, 2014, the World Trade Organization’s Appellate Body (AB) issued its report on the controversial “ECSeal Products” dispute, finding that a European Union (EU or Union) prohibition on the importation and sale of seal products violated the General Agreement on Tariffs and Trade 1994 (GATT). It did so, however, in a way that largely upheld the Union”s defense on animal welfare grounds, so that the prohibition remains effective. The decision marks the first time that the Appellate Body has found that a trade ban on animal welfare grounds falls within the exception under GATT Article XX(a) for measures necessary to protect public morals. This determination implicates the legality of future trade restrictions on animal welfare grounds, as well as restrictions imposed on human rights grounds, such as labor rights.

Keywords

World Trade OrganizationAgreement on Technical Barriers to TradeGeneral Agreement on Tariffs and Tradediscriminationprotection of public morals regarding animal welfareindigenous communities
Type
International Decisions
Information
American Journal of International Law , Volume 109 , Issue 1 , January 2015 , pp. 154 - 161
Copyright
Copyright © American Society of International Law 2015

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References

1 Appellate Body Report, European Communities—Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/AB/R, WT/DS401/AB/R (May 22, 2014) (adopted June 18, 2014) [hereinafter AB Report]. Reports and other documents of the World Trade Organization cited herein are available at its website, http://www.wto.org.

2 General Agreement on Tariffs and Trade [GATT], Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, 1867 UNTS 154 [hereinafter Marrakesh Agreement], Annex 1A, 1867 UNTS 190, reprinted in World Trade Organization, The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations 3, 17 (1999) [hereinafter Legal Texts].

3 Regulation (EC) 1007/2009 of the European Parliament and of the Council on Trade in Seal Products, 2009 O.J. (L 286) 36; Commission Regulation (EU) 737/2010 Laying down Detailed Rules for the Implementation of the Regulation (EC) 1007/2009, 2010 O.J. (L 216) 1.

4 Agreement on Technical Barriers to Trade, Marrakesh Agreement, supra note 2, Annex 1A, 1868 UNTS 120 [hereinafter TBT Agreement], reprinted in Legal Texts, supra note 2, at 121.

5 Panel Report, European Communities—Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/R, WT/DS401/R (Nov. 25, 2013) (adopted June 18, 2014) [hereinafter Panel Report].

6 TBT Agreement, supra note 4, Art. 2.1.

7 GATT, supra note 2, Arts. III:4, I, respectively.

8 E.g., Appellate Body Report, United States—Measures Affecting the Production and Sale of Clove Cigarettes, para. 175, WT/DS406/AB/R (Apr. 4, 2012) (adopted Apr. 24, 2012) (reported by Tania Voon at 106 AJIL 824, 826–27 (2012)).

9 Panel Report, supra note 5, para. 7.274.

10 Id., paras. 7.369, 7.292 (citing Declaration on the Rights of Indigenous Peoples, GARes. 61/295, annex (Sept. 13, 2007); International Labour Organization, Convention (No. 169) Concerning Indigenous and Tribal Peoples in Independent Countries, June 27, 1989, 28 ILM 1382 (1989), available at http://www.ilo.org/ilolex).

11 AB Report, para. 5.1999 (quoting Panel Report, United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Services, para. 6.465, WT/DS285/R (Nov. 10, 2004) (adopted Apr. 20, 2005)).

12 Id., para. 5.266 (quoting Panel Report, para. 7.482).

13 See Bartels, Lorand, The Chapeau of the General Exceptions in the WTO GATT and GATS Agreements: A Reconstruction, 109 AJIL 95 (2015)CrossRefGoogle Scholar.

14 Id., para. 5.337 (quoting Appellate Body Report, United States—Import Prohibition of Certain Shrimp and Shrimp Products: Recourse to Article 21.5 of the DSU by Malaysia, para. 122, WT/DS58/AB/RW(Oct. 22, 2001) (adopted Nov. 21, 2001)).

15 The Appellate Body suggested that the asymmetry should not be a concern, but the United States has already pointed out in interim review in a subsequent case that providing consumer information is not among the list of Article XX exceptions. See Panel Report, United States—Certain Country of Origin Labelling (COOL) Requirements: Recourse to Article 21.5 of the DSU by Canada and Mexico, paras. 6.70–.75, WT/DS384/R, WT/DS 386/R (Oct. 20, 2014).

16 Appellate Body Report, United States—Standards for Reformulated and Conventional Gasoline at 17, WT/DS2/AB/R (Apr. 29, 1996) (adopted May 20, 1996).

17 See text at note 10 supra.

18 Commission Decision on the Joint Statement by Canada and the European Unionon Access to the European Union of Seal Products from Indigenous Communities of Canada, C(2014) 5881 final, annex (Aug. 18, 2014), at http://eeas.europa.eu/canada/docs/joint_statement_c_2014_5881_fl_annex_en.pdf.