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Accommodating Divergent Policy Objectives under WTO Law: Reflections on EC—Seal Products

Part of: WTO EC-Seal Products Case

Published online by Cambridge University Press:  20 January 2017

Julia Y. Qin
Julia Y. Qin*
Affiliation:
Wayne State University Law School
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EC—Seal Products raises an important issue in World Trade Organization (WTO) law: How can WTO trea-ties be interpreted to accommodate divergent legitimate purposes of a domestic regulation? The European Union (EU) measure at issue is a ban on the placing of seal products on the EU market, coupled with excep-tions3 for seal products produced by Inuit and other indigenous communities (IC exception), and for seal products obtained from seals hunted for the purpose of marine resource management and sold on a nonprofit basis (MRM exception). The seal ban was imposed out of the public concern over the cruel manner in which seals are hunted and killed, whereas the IC exception was made to protect the traditional lifestyle of indigenous peoples and the MRM exception accommodated theneed for sustainable management of marine resources. The EU regulation, therefore, was designed to achieve divergent policy objectives. The exceptions derogate from the ban because they permit hunting and killing of seals which can cause the very pain andsuffering for seals that concerns the EU public.

Type
Symposium: WTO EC-Seal Products Case
Information
AJIL Unbound , Volume 108 , 2014 , pp. 308 - 314
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 Jun. 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 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 (Text with EEA relevance), 2010 O.J. (L 216) 1.

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

5 Agreement on Technical Barriers to Trade, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1868 UNTS 120.

6 Appellate Body Report, EC—Seal Products, supra note 1.

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

8 Appellate Body Report, United States—Measures Affecting the Production and Sale of Clove Cigarettes, paras. 169, 174, 182, and 194, WT/DS206/AB/R (Adopted Apr. 24, 2013).

9 Appellate Body Report, United States—Measures Concerning Importation, Marketing and Sale of Tuna and Tuna Products, para. 215, WT/DS381/AB/R (Adopted June 13, 2012).

10 Appellate Body Report, United States—Certain Country of Origin Labelling (COOL) Requirements, para. 271, WT/DS384/AB/R, WT/DS386/AB/R (Adopted July 23, 2013).

11 Panel Report, EC—Seal Products, supra note 7, at para. 7.174.

12 United Nations Declaration on the Rights of Indigenous Peoples, GARes. 61/295 (Oct. 2, 2007).

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

14 Panel Report, EC—Seal Products, supra note 7, at paras. 7.296-298.

15 Id.at para. 7.298.

16 Id.at paras.7.317-319.

17 Appellate Body Report, EC—Seal Products, supra note 1, at paras. 6.1, 5.70.

18 Appellate Body Report, United States—Standards for Reformulated and Conventional Gasoline, 28-29, WT/DS2/AB/R (Adopted May 20, 1996).

19 In an effort to reconcile with its previous holding, the AB explained that in EC—Seal Products “the causes” of the discrimination found to exist under GATT Article I are the same as those to be examined under the chapeau. Appellate Body Report, EC—Seal Products, supra note 1, at para. 5.318.

20 Appellate Body Report, United States—Import Prohibition of Certain Shrimp and Shrimp Products, para. 149, WT/DS58/AB/R (Adopted Nov. 6, 1998).

21 Appellate Body Report, Brazil—Measures Affecting Imports of Retreaded Tyres, paras. 227-228, WT/332/AB/R (Adopted Dec. 17, 2007).

22 Appellate Body Report, EC—Seal Products, supra note 1, at para. 5.321.

23 Arguably, IC welfare, like animal welfare, can be considered as a matter of public morals. The Panel in this case found, however, that based on evidence, the level of concern of the EU public over Inuit welfare did not amount to “public morals” under Article XX(a). Panel Report, EC—Seal Products, supra note 7, at para. 7.300.

24 Appellate Body Report, EC—Seal Products, supra note 1, at paras. 5.320, 5.338.

25 Id.at para. 5.338.

26 Gregory Shaffer & David Pabian, European Communities—Measures Prohibiting the Importation and Marketing of Seal Products, 109 AJIL154 (2015) (quoting Appellate Body Report, United States—Standards for Reformulated and Conventional Gasoline, supra note 18).

27 Appellate Body Report, EC—Seal Products, supra note 1, at para. 5.299.

28 Id.at para. 5.300.

29 Id.at para. 5.317.

30 For a study on relevant criteria for identifying different types of discrimination under WTO law, see Julia Y. Qin, Defining Non-Discrimination Under the Law of the World Trade Organization, 23 B. U. Int’l L. J. 215 (2005).

31 European Commission, Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) 1007/2009 on trade in seal products, COM(2015) 45 final (Feb. 6, 2015).