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The Delicate Equilibrium of EU Trade Measures: The Seals Case

Published online by Cambridge University Press:  06 March 2019

Julinda Beqiraj

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Regulation EC No. 1007/2009 of the European Parliament and of the Council of 16 September 2009 banned the placement of seal products in the EU market. The measure has been very controversial, triggering a strong reaction, both from neighboring exporting States, in particular Canada and Norway, and from indigenous people living in the Arctic region. Seal hunting represents a traditional practice carried out for the purpose of personal consumption of seal meat, as well as for commercial trade of related by-products by the indigenous communities (mainly Inuit) living in the Northern Pole.

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Developments
Information
German Law Journal , Volume 14 , Issue 1: Special section - The ESM Before the Courts , 01 January 2013 , pp. 279 - 319
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Copyright © 2013 by German Law Journal GbR 

References

1 See, e.g., Resolution of 9 October 2008 on Arctic Governance, Eur. Parl. Doc. P6_TA(2008)0474 (2008); Communication from the Commission to the European Parliament and the Council—The European Union and the Arctic Region, COM (2008) 0763 final (Nov. 20, 2008); 2914th Foreign Affairs Council meeting, Council Conclusions on the European Union and the Arctic Region (Dec. 8, 2008), available at http://www.eu-un.europa.eu/articles/en/article_8359_en.htm; 2985th Foreign Affairs Council Meeting, Council Conclusions on Arctic Issues (Dec. 8, 2009), available at http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/111814.pdf; European Parliament Resolution on a Sustainable EU Policy for the High North, Eur. Parl. Doc. 2009/2214 (INI) (Jan. 20, 2011); Joint Communication of the Commission and of the High Representative of the European Union for Foreign Affairs and Security Policy to the European Parliament and to the Council—Developing a European Union Policy towards the Arctic Region: progress since 2008 and next steps, JOIN(2012) 19 final (Jun. 26, 2012).Google Scholar

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3 Id. Google Scholar

4 See Council Directive No. 83/129/EEC, of the Council of 28 March 1983 Concerning the Importation into Member States of Skins of Certain Seal Pups and Products Derived Therefrom, 1983 O.J. (L 091) 30 [hereinafter Seal Pup Directive No. 83/129/EEC].Google Scholar

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6 See Seal Pup Directive No. 83/129/EEC, supra note 4, at art. 3.Google Scholar

7 Id. at pmbl. indent 9.Google Scholar

8 Id. Google Scholar

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12 Council Regulation No. 1007/2009, of the European Parliament and of the Council of 16 September 2009 on Trade in Seal Products, 2009 O.J. (L 286) 36 (EC) [hereinafter Council Regulation 1007/2009].Google Scholar

13 Commission Regulation 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, 2010 O.J. (L 216) 1 (EU) [hereinafter Commission Regulation 737/2010].Google Scholar

14 Council Regulation 1007/2009, supra note 12, art. 3.Google Scholar

15 Id. at art. 2.2.Google Scholar

16 Id. at art. 3.1. The two remaining derogations concern occasional importation of seal products exclusively for personal use (Art. 3.2(a)), and the placing on the market of seal products on a non-profit basis when hunting has been conducted for the sole purpose of the sustainable management of marine resources, i.e., mainly safeguard of fish stocks consumed by seals (Art. 3.2(b)).Google Scholar

17 Id. at art. 2.4.Google Scholar

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36 Council Regulation 1007/2009, supra note 13, at art. 2.5.Google Scholar

37 COWI, supra note 25, at 62.Google Scholar

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39 Id. at 62.Google Scholar

40 Id. Google Scholar

41 Id. at 45.Google Scholar

42 Council Regulation 1007/2009, supra note 12, at art. 2.3.Google Scholar

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54 See id. at art. 8 (establishing the right to private and family life).Google Scholar

55 See id. at art. 9 (announcing the freedom of thought, conscience and religion).Google Scholar

56 See id. art. 10 (announcing the freedom of expression).Google Scholar

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59 Case C-583/11 P, Inuit Tapiriit Kanatami and Others v. European Parliament, Council of the European Union, Netherlands, and European Comm'n, O.J. (C 58) 3 (appealing the Order of the General Court delivered Sept. 6, 2011, in Case T-18/10, Inuit Tapiriit Kanatami and Others v. European Parliament and Council of the European Union) (action pending).Google Scholar

60 See Case T-18/10 R, Inuit Tapiriit Kanatami and Others v. European Parliament and Council of the European Union, 2010 E.C.R. II-00075.Google Scholar

61 See id. Google Scholar

62 See id. at para. 103.Google Scholar

63 See id. at paras. 102–03.Google Scholar

64 See id. at paras. 99–103.Google Scholar

65 See id. at paras. 101, 103.Google Scholar

66 See id. at para. 105.Google Scholar

67 See id. at para. 107.Google Scholar

68 See id. at paras. 106, 107, 109.Google Scholar

69 See id. at para. 112.Google Scholar

70 See Impact Assessment, supra note 2.Google Scholar

71 See Case T-18/10 R, Inuit Tapiriit Kanatami and Others v. European Parliament and Council of the European Union, 2010 E.C.R. II-00075. paras. 112, 114, 116.Google Scholar

72 See Case T-18/10 R II, Inuit Tapiriit Kanatami and Others v. European Parliament and Council of the European Union, 2010 E.C.R. II 00235.Google Scholar

73 See id. at paras. 20–23.Google Scholar

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76 See id. In December 2010, Inuit Tapiriit Kanatami and others brought an appeal against the Order of the President before the General Court (Case C-605/10 P(R)) but there was no need to adjudicate because, in the meantime, the General Court had adopted its decision on the main action for annulment. Case C-605/10 P(R), Inuit Tapiriit Kanatami and Others v. European Parliament and Council of the European Union, 2011 E.C.R. II-____.Google Scholar

77 The President took the view that:Google Scholar

[I]t is admittedly conceivable that the relatively late official publication of the implementing regulation could delay the implementation of the Inuit exception in so far as concerns the marketing on the European Union market of seal products deriving from hunting by Greenlandic Inuit. However, although that delay may damage the ‘Inuit economy’ of Greenland, the applicants do not establish that the implementing regulation is objectively impracticable, the arguments put forward to that effect being mere unsubstantiated general assertions, whereas they should have provided specific evidence and proved the facts alleged to form the basis of the likelihood of the impracticability alleged, since damage of a purely hypothetical nature cannot justify the ordering of the suspension of operation sought.

Id. at para 86.

78 See id. Google Scholar

79 See id. at para. 52.Google Scholar

80 See id. at para. 54.Google Scholar

81 Individual and group standing to challenge EU measures directly before the EU Court(s) is, and has been, extremely restrictive. By definition, the “individual concern” test is hardly satisfied by groups or associations representing public interests. See Case T-38/98, Associazione Nazionale Bieticltori v. Council, 1998 E.C.R. II-4191, paras. 25–29; Case T-447–9/93, AITEC v. Comm'n, 1995 E.C.R. II-1971; Case C-309/89, Codorníu v. Council, 1994 E.C.R. I-1853; Case C-358/89, Extramet Industrie v. Council, 1991 E.C.R. I-2501. However, in relation to applicants claiming non-purely economic interests, the ECJ has constantly denied locus standi. See Case T-91/07, WWF-UK Ltd. v. Council, 2008 E.C.R. II-81; Joined Cases T-236/04 & T-241/04, Eur. Envtl Bureau & Stichting Natuur en Milieu v. Comm'n, 2005 E.C.R. II-4945; Case T-585/93, Greenpeace v. Comm'n, 1995 E.C.R. II-2205, paras. 59–62.Google Scholar

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83 ICC Greenland is a member of the Inuit Circumpolar Council, an Indigenous Peoples’ NGO representing approximately 160,000 Inuit living in the Arctic regions of Alaska, Canada, Greenland, and Chukotka, Russia. The ICC holds consultative status to the United Nations Economic and Social Council (ECOSOC).Google Scholar

84 See Case T-18/10, Inuit Tapiriit Kanatami and Others v. European Parliament and Council of the European Union (2011) (unpublished), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62010TO0018(04):EN:HTML.Google Scholar

85 See id. at para. 56.Google Scholar

86 Consolidated Version of the Treaty Establishing the European Community, art. 230(4), Dec. 24, 2002, 2002 O.J. (C 325) [hereinafter TEC] (“Any natural or legal person may, under the same conditions, institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former.” (emphasis added)).Google Scholar

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88 See TEC, supra note 86, at art. 230(4).Google Scholar

89 Case 25/62, Plaumann & Co. v. Comm'n, 1963 E.C.R. 95; see also cases cited supra note 81.Google Scholar

90 See Case C-50/00 P, Unión de Pequeños Agricultores v. Council, 2002 E.C.R. I-6677 [hereinafter UPA]; Case C-263/02 P, Comm'n v. Jégo-Quéré, 2004 E.C.R. I-3425 [hereinafter Jégo-Quéré].Google Scholar

91 This solution was suggested in an Opinion of AG Jacobs and in a decision by the Tribunal of First Instance. See UPA (opinion of Advocate Gen. Jacobs), supra note 90, at para. 60; Case T-177/01, Jégo-Quéré v. Comm'n, 2002 E.C.R. II-2365.Google Scholar

92 See UPA, supra note 90, at para. 45; Jégo-Quéré, supra note 90, at para. 36.Google Scholar

93 See TFEU, supra note 44, at art. 263(4) (“Any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.”).Google Scholar

94 It has been authoritatively highlighted that there may be a possible overlap between the two requirements in Art. 263(4), namely, direct concern and absence of implementing measures. See Massimo Condinanzi, Il singolo e la ‘comunità di diritto’ nel nuovo testo di Trattato che adotta una Costituzione per l'Europa, 12 Il Corriere Giuridico 1545, 1549 (2004).Google Scholar

95 For a comment to art. 263(4) TFEU, see Stephan Balthasar, Locus Standi Rules for Challenges to Regulatory Acts by Private Applicants: The New Article 263(4) TFEU, 35 Eur. L. Rev. 2 (2010) ohannes Traut, Christoph Werkmeister Stephan P tters, Regulatory Acts within Article 263(4) TFEU: A Dissonant Extension of Locus Standi for Private Applicants, 13 Cambridge Y.B Eur. Legal Stud. 311 (2012).Google Scholar

96 Less than a month later, an applicant fulfilled for the first time the admissibility requirements under the third limb of Art. 263(4). See Case T-262/10, Microban Int'l Ltd. v. Comm'n, 2011 E.C.R. ____, available at http://curia.europa.eu/juris/document/document.jsf?text=&docid=111762&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=3205953.Google Scholar

97 In light of the principle tempus regit actum, the GC had ruled in precedent cases that the admissibility issue had to be solved under the rules in force at the date of the submission of the application. See Case T-539/08, Etimine v. Comm'n, 2010 E.C.R. II-4017 paras. 76, 78; Case T-532/08, Norilsk Nickel Harjavalta v. Comm'n, 2010 E.C.R. II-3959 para. 70.Google Scholar

98 See Case T-18/10, Inuit Tapiriit Kanatami and Others v. European Parliament and Council of the European Union, para. 56 (2011) (unpublished), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62010TO0018(04):EN:HTML.Google Scholar

99 See id. at para. 49. The Constitutional Treaty contained an identical provision to that of Article 263(4) TFEU, but it also introduced new categories of legal instruments: a European regulation was defined as a non-legislative act, “traditional” regulations were renamed European laws. Google Scholar

100 See Condinanzi, , supra note 9494.Google Scholar

101 Given, however, that Reg. 737/2010 requires Member States to designate the competent authorities for the verification of attesting documents for imported seal products (Art. 9), the Court will presumably conclude that Art. 263(4) TFEU does not apply to the petitioners in Inuit Tapiriit Kanatami. Google Scholar

102 See supra text accompanying note 93.Google Scholar

103 Vienna Convention on the Law of Treaties, supra note 35, at art. 32. The Vienna Convention on the Law of Treaties states that “Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to Article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.”). Id. Google Scholar

104 See id. at art. 31 (“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”).Google Scholar

105 See Case T-18/10, Inuit Tapiriit Kanatami and Others v. European Parliament and Council of the European Union, para. 56 (2011) (unpublished), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62010TO0018(04):EN:HTML.Google Scholar

106 See TFEU, supra note 44, at art. 289(3) (“Legal acts adopted by legislative procedure shall constitute legislative acts.”).Google Scholar

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108 Case C-188/92, TWD Textilwerke Deggendorf v. Germany, 1994 E.C.R. I-833 [hereinafter TWD].Google Scholar

109 In the TWD case the European Court of Justice (ECJ) clarified that whoever undoubtedly had the right to challenge the validity of a Union act, but failed to do so within the two-month time limit established in Art. 230(5) EC (now Art. 263(6) TFEU), may not seek to challenge the legality of this act in proceedings before national judges. For some preliminary considerations on the applicability of such case law to the revised Art. 263(4) TFEU, see Roland Schwensfeier, The TWD Principle Post-Lisbon, 37 Eur. L. Rev. 156 (2012).Google Scholar

110 European Union Charter of Fundamental Rights, art. 7, Dec. 18, 2000, 2000 O.J. (C 364/01) (“Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.”).Google Scholar

111 See Case C-222/84, Johnston v. Chief Constable of the Royal Ulster Constabulary, 1986 E.C.R. 1651, para. 18.Google Scholar

112 See TFEU, supra note 44, at art. 6.Google Scholar

113 See Case T-173/98, Unión de Pequeños Agricultores v. Council, 1999 E.C.R. II-3357; see also UPA (opinion of Advocate Gen. Jacobs), supra note 90, at para. 35.Google Scholar

114 UPA (opinion of Advocate Gen. Jacobs), supra note 90, at para. 42‥Google Scholar

115 Id. at paras. 41, 102. See also Dorota Leczykiewicz, “Effective Judicial Protection” of Human Rights After Lisbon: Should National Courts Be Empowered to Review EU Secondary Law?, 35 Eur. L. Rev. 326 (2010).Google Scholar

116 UPA (opinion of Advocate Gen. Jacobs), supra note 90, at para. 102.Google Scholar

117 Id. at para. 44.Google Scholar

118 See Request for the Establishment of a Panel by Norway, European Communities—Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS401/5 (Mar. 15, 2011); Request for the Establishment of a Panel by Canada, European Communities—Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/4 (Feb. 14, 2011). Argentina, China, Colombia, Ecuador, Iceland, Japan, Mexico, Norway, and the United States have joined as third parties. At its meeting on 25 March 2011, the Dispute Settlement Body established a panel. China, Colombia, Iceland, Japan, Mexico, Norway, and the United States, and subsequently Argentina, Ecuador and the Russian Federation, reserved their third party rights. The two requests will be addressed by a single panel. On 4 October 2012, the Director-General composed the panel.Google Scholar

119 The issue of the admissibility of amicus curiae submissions in WTO dispute settlement proceedings is highly contentious. However, the Appellate Body has confirmed the panels’ discretion as well as its own authority to accept or reject information and advice from interested entities, which are neither parties nor third parties to the dispute. See Appellate Body Report, United States—Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom, para. 43, WT/DS138/AB/R (June 7, 2000); Appellate Body Report, United States—Import Prohibition of Certain Shrimp and Shrimp Products, paras. 105–108, WT/DS58/AB/R (Oct. 12, 1998) [hereinafter US-Shrimp].Google Scholar

120 The sixth recital of the Preamble of the TBT Agreement clarifies this point:Google Scholar

Recognizing that no country should be prevented from taking measures necessary to ensure the quality of its exports, or for the protection of human, animal or plant life or health, of the environment, or for the prevention of deceptive practices, at the levels it considers appropriate, subject to the requirement that they are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail or a disguised restriction on international trade, and are otherwise in accordance with the provisions of this Agreement.

World Trade Organization Agreement on Technical Barriers to Trade, pmbl., Apr. 15, 1994, 1994 O.J. (L 336) [hereinafter TBT].

121 Report of the Panel, European Communities—Measures Affecting Asbestos and Asbestos Containing Products, 400, WT/DS135/R (Sept. 18, 2000).Google Scholar

122 The TBT Agreement also applies to standards, but these consist of rules compliance with which is not mandatory.Google Scholar

123 TBT, supra note 120, at annex 1, para. 1.Google Scholar

124 Regulation 1007/09, supra note 12, art. 3.Google Scholar

125 The text of the TBT does not suggest any interpretation of PPMs, but the view generally held on this issue is to interpret the word “relate” in the definition of technical regulations as meaning “having a physical impact on the end product.” See Note by the Secretariat, Negotiating History of the Coverage of the Agreement on Technical Barriers to Trade with Regard to Labeling Requirements, Voluntary Standards, and Processes and Production Methods Unrelated to Product Characteristics, paras. 103–51, WT/CTE/W/10, G/TBT/W/11 (Aug. 29, 1995). Nevertheless, some WTO members have actually notified technical regulations relating to non-product-related PPMs to the TBT Committee. Notably, Belgium has notified its prohibition on production and marketing of seal pup skins unless obtained from Inuit traditional hunt. See Notification of Belgium, G/TBT/N/BEL39 (Mar. 8, 2008); see also United Nations Conference on Trade and Development, Dispute Settlement, World Trade Organization, 3.10 Technical Barriers to Trade, 2003, 10, available at http://unctad.org/en/docs/edmmisc232add18_en.pdf; Christiane Conrad, Processes and Production Methods (PPMs) in WTO Law: Interfacing Trade and Social Goals 378 (2011). Moreover, in the recent reports on Tuna Dolphin II, the Panel and the Appellate Body considered certain labeling requirements based on fishing methods as “technical regulation” although they did not specifically address this issue. See Appellate Body Report, United States—Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, paras. 190–99, WT/DS381/AB/R (May 16, 2012) [hereinafter Tuna Dolphin II].Google Scholar

126 This is what happened in the Tuna Dolphin II case. See Elizabeth Trujillo, The Tuna-Dolphin Encore—WTO Rules on Environmental Labeling, 16 ASIL Insights, 7 March (2012).Google Scholar

127 Tuna Dolphin II, supra note 125, paras. 214–16, 221, 224–25.Google Scholar

128 TBT, supra note 120, at art. 2.2.Google Scholar

129 This is also further confirmed. See Commission Staff Working Document, Accompanying document to the Proposal for a Regulation Concerning Trade in Seal Products: Impact Assessment on the Potential Impact of a Ban of Products Derived from Seal Species, SEC (2008) 2290, (July 23, 2008) [hereinafter Impact Assessment]. Moreover, it should be noted that the original proposal of the Commission concerned the introduction of a certification, labeling and marking regime guaranteeing that seals were “killed and skinned without causing avoidable pain, distress and any other form of suffering.” See Commission Proposal for a Regulation of the European Parliament and of the Council Concerning Trade in Seal Products, art. 4, COM (2008) 469 final (July 23, 2008).Google Scholar

130 Appellate Body Report, European Communities—Measures Affecting Asbestos and Asbestos-Containing Products, para. 169, WT/DS135/AB/R (Mar. 12, 2001) [hereinafter Asbestos].Google Scholar

131 See General Agreement on Tariffs and Trade, art. I(1), Oct. 30, 1947, 61 Stat. A-11, 55 U.N.T.S. 194 [hereinafter GATT] (“[A]ny advantage, favour, privilege or immunity granted by any contracting party to any product originating in or destined for any other country shall be accorded immediately and unconditionally to the like product originating in or destined for the territories of all other contracting parties.”) see also id. at art. III(4) (“The products of the territory of any contracting party imported into the territory of any other contracting party shall be accorded treatment no less favourable than that accorded to like products of national origin in respect of all laws, regulations and requirements affecting their internal sale, offering for sale, purchase, transportation, distribution or use.”).Google Scholar

132 Fitzgerald, Peter L., “Morality” May Not Be Enough to Justify the EU Seal Products Ban: Animal Welfare Meets International Trade Law, 14 J. Int'l Wildlife L. & Pol'y 85, 99 (2011).Google Scholar

133 Appellate Body Report, Japan—Taxes on Alcoholic Beverages, para. 21, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R (Oct. 4, 1996).Google Scholar

134 Asbestos, supra note 130, para. 99. Although the considerations here made reference to the assessment of a likeness of products under Article III(4) of the GATT 1994, they nevertheless provide guidance for a general approach to the issue.Google Scholar

135 See id. at para. 101.Google Scholar

136 In Asbestos, for instance, the Appellate Body took into consideration consumer tastes for the purpose of distinguishing products containing asbestos from other fungible products. It is questionable, however, whether in assessing likeness consumer preferences as to animal welfare are equivalent to their perception of the health risks posed by asbestos.Google Scholar

137 Asbestos, supra note 130, at para. 109.Google Scholar

138 Impact Assessment, supra note 129, at 46–47, 53.Google Scholar

139 Similarly, Art. 4.2 of the AoA stipulates that Members must convert non-tariff barriers on agricultural products into ordinary customs duties.Google Scholar

140 GATT, supra note 131, at art. III. Art I states:Google Scholar

Any internal tax or other internal charge, or any law, regulation or requirement of the kind referred to in paragraph 1 which applies to an imported product and to the like domestic product and is collected or enforced in the case of the imported product at the time or point of importation, is nevertheless to be regarded as an internal tax or other internal charge, or a law, regulation or requirement of the kind referred to in paragraph 1, and is accordingly subject to the provisions of Article III.”).

Id. at art. I.

141 Regulation 1007/09, supra note 12, at art. 3.1.Google Scholar

142 GATT art. XX (“Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures. …”).Google Scholar

143 Id. art. XX(a).Google Scholar

144 Id. art. XX(b).Google Scholar

145 Concerning the general exception under GATT Art. XX(g) on the conservation of exhaustible natural resources, the Panel in US-Tuna II asserted that “[i]t could not therefore be said that the General Agreement proscribe[s] in an absolute manner measures that relate to things or actions outside the territorial jurisdiction of the party taking the measure.” See Panel Report, United States—Restrictions on the Imports of Tuna, para. 5.16, DS29/R (June 16, 1994). However, in the US-Shrimp Appellate Body report, it is clarified that in pursuing fundamental social policies States are bound to “to have prior consistent recourse to diplomacy “ failure to do so may produce a discriminatory impact. See US-Shrimp, supra note 119, at para. 187.Google Scholar

146 For a detailed defense of the EU measures, see Robert Howse & Joanna Langille, Permitting Pluralism: The Seal Products Dispute and Why the WTO Should Accept Trade Restrictions Justified by Noninstrumental Moral Values, 37 Yale. Int'l L. 367 (2012). Paragraph (a) of GATT Art. XX has been directly addressed in the recent decision China-Audio Visual Products, and in the context of the GATS containing a similar provision in the U.S.-Gambling decision. See Appellate Body Report, China—Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, WT/DS363/AB/R (Dec. 21, 2009); Panel Report, China—Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, WT/DS363/R (Aug. 12, 2009); Appellate Body Report, United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/AB/R (Apr. 7, 2005); Panel Report, United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/R (Nov. 10, 2004). In both cases the decision organs failed to justify State measures under Art. XX. As this concerns the seals case, it has been authoritatively suggested that this case may not be the most appropriate one for establishing a precedent under Art. XX(a). See Fitzgerald, supra note 132, at 86.Google Scholar

147 See US-Shrimp, supra note 119, para. 187; see also Fitzgerald, supra note 132, at 122–23.Google Scholar

148 See Recommendation on Seal Hunting, supra note 11; see also Convention for the Conservation of Antarctic Seals, annex, art. 7, Feb. 11, 1972, 29 U.S.T. 441, 11 I.L.M. 251.Google Scholar

149 By contrast, standards that relate to concerns on the survival of species rely on, and are subject to, scientific determination.Google Scholar

150 As earlier noted, in the annulment actions before the ECJ, the applicants also raised the issue of the alleged violation of the rights of indigenous peoples including: the right to property, the right to private and family life read in light of the freedom of thought, conscience and religion, and freedom of expression, and the right to be heard.Google Scholar

151 See ILO C169, supra note 19.Google Scholar

152 See UNDRIP, supra note 19.Google Scholar

153 ILO C169, supra note 19, at arts. 2, 4, 5; see also id. at arts. 24, 31, 41.Google Scholar

154 ILO C169, supra note 19, at art. 8.2 (“These peoples shall have the right to retain their own customs and institutions, where these are not incompatible with fundamental rights defined by the national legal system and with internationally recognized human rights.”).Google Scholar

155 UNDRIP, supra note 19, at art. 20.Google Scholar

156 See id. at art. 24.Google Scholar

157 See id. at arts. 18, 19; ILO C169, supra note 19, at arts. 6, 7.Google Scholar

158 See UNDRIP, supra note 19, at art. 40; ILO C169, supra note 19 art. 12.Google Scholar

159 The first Optional Protocol to the International Covenant on Civil and Political Rights invests the Committee with the competence to receive and consider individual complaints concerning alleged violation of State obligations under the Covenant; with the exception of the UK, all EU member States have ratified the Optional Protocol. See Optional Protocol to the International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc A/6316.Google Scholar

160 For further references on the relevant jurisprudence, see generally S. James Anaya, International Human Rights and Indigenous Peoples (2009); S. James Anaya, Indigenous Peoples in International Law (2d ed. 2004); Alessandro Fodella, Indigenous Peoples, the Environment and International Jurisprudence, in International Courts and the Development of International Law: Essays in Honour of Tullio Treves 347–62 (Nerina Boschiero et al eds., 2012) (forthcoming); Kamroul Hossain, Globalization, Climate Change and Indigenous Peoples in the Arctic: An Interface Between Free Trade and the Right to Culture, in Globalization, International Law and Human Rights 34 (Jeffrey F. Addicott, Md. Jahid Hossain Bhuiyan & Tareq M.R. Chowdhury eds., 2012); International Law and Indigenous Peoples (Joshua Castellino & Niamh Walsh eds., 2005); Patrick Thornberry, Indigenous Peoples and Human Rights (2002); Alexandra Xanthaki, Indigenous Rights and United Nations Standards: Self-Determination, Culture and Land (2007).Google Scholar

161 U.N. Human Rights Comm'n, Kitok v. Sweden, para. 9.2, U.N. Doc. CCPR/C/33/D/197/1985 (1988).Google Scholar

162 U.N. Human Rights Comm'n, Ominayak v. Canada, para. 32.2, U.N. Doc. CCPR/C/38/D/167/1984 (1990).Google Scholar

163 General Comment No. 23: The Rights of Minorities (Art. 27), Doc. CCPR/C/21/Rev.1/Add.5 (4 August 1994) para. 7.Google Scholar

164 Id. at paras. 3.1, 3.2.Google Scholar

165 See, e.g., U.N. Human Rights Comm'n, Mahiuka v. New Zealand, para. 9.2, U.N. Doc. CCPR/C/70/D/547/1993 (2000) [hereinafter Mahiuka v. New Zealand].Google Scholar

166 It should be recalled that the EU Regulation was justified as a measure of harmonization beneficial to the internal market as well as a measure concerning animal welfare.Google Scholar

167 See U.N. Human Rights Comm'n, Howard v. Canada, para. 12.7, U.N. Doc. CCPR/C/84/D/879/1999 (2005); U.N. Human Rights Comm'n, Länsman v. Finland, paras. 9.4, 9.5, U.N. Doc. CCPR/C/52/D/511/1992 (1994) [hereinafter Länsman v. Finland I].Google Scholar

168 See U.N. Human Rights Comm'n, Poma Poma v. Peru, para. 7.6, U.N. Doc. CCPR/C/95/D/1457/2006 (2009) [hereinafter Poma Poma v. Peru]; U.N. Human Rights Comm'n, Länsman v. Finland, para. 10.2, U.N. Doc. CCPR/C/83/D/1023/2001 (2005) [hereinafter Länsman v. Finland III]; Mahiuka v. New Zealand, supra note 165, at para. 9.5; U.N. Human Rights Comm'n, Länsman v. Finland, para. 10.7, U.N. Doc CCPR/C/58/D/671/1995 (1996) [hereinafter Länsman v. Finland II]; Länsman v. Finland I, supra note 167, at para. 9.8.Google Scholar

169 Länsman v. Finland I, supra note 167, at para. 9.3.Google Scholar

170 See Mahiuka v. New Zealand, supra note 165, at para. 9.4.Google Scholar

171 See id. at para. 9.5; Poma Poma v. Peru, supra note 168, at para. 7.6; U.N. Human Rights Comm'n, Äärelä v. Finland, para. 7.6, U.N. Doc. CCPR/C/73/D/779/1997 (2001); Länsman v. Finland I, supra note 167, at para. 9.6. On the exact scope of the “obligation to consult,” see also Int'l Labor Org. Comm'n of Experts on the Application of Conventions and Recommendations, General Observation Concerning Indigenous and Tribal Peoples Convention, ILO Doc. 052011GENS20 (2011).Google Scholar

172 See Fodella, supra note 160.Google Scholar

173 See Rep. on the Forty-Sixth and Forty-Seventh Sessions of the Comm'n on Econ., Soc. & Cultural Rights, May 2– 20, Nov. 14–Dec. 2, 2009, paras. 194, U.N. Doc. E/2012/22; ESCOR, Supp. No. 2 (2012) (concluding observations on Cambodia); Rep. on the Forty-Second and Forty-Third Sessions of the Comm'n on Econ., Soc. & Cultural Rights, May 4–22, Nov. 2–20, 2009, paras. 194, U.N. Doc. E/2010/22; ESCOR, Supp. No. 2 (2010) (concluding observations on Cambodia); id. para. 311 (concluding observations on the Democratic Republic of Congo); id. para. 330 (concluding observations on Chad); U.N. Comm'n on Econ., Soc. & Cultural Rights, General Comment no. 21: Right of Everyone to Take Part in Cultural Life (Art. 15, para. 1a of the Covenant on Economic, Social and Cultural Rights), paras. 36–37, 49, 55, U.N. Doc. E/C.12/GC/21 (2009); Rep. on the Thirty-Eighth and Thirty-Ninth Sessions of the Comm'n on Econ., Soc. & Cultural Rights, Apr. 30–May 16, Nov. 5–23, 2007, paras. 391, U.N. Doc. E/2008/22; ESCOR, Supp. No. 2 (2008) (concluding observations on Costa Rica); Rep. on the Thirty-Second and Thirty-Third Sessions of the Comm'n on Econ., Soc. & Cultural Rights, Apr. 26–May 14, Nov. 8–26, 2004, paras. 278, 301, U.N. Doc. E/2005/22; ESCOR, Supp. No. 2 (2005) (concluding observations on Ecuador); Rep. on the Thirtieth and Thirty-First Sessions of the Comm'n on Econ., Soc. & Cultural Rights, May 5–23, Nov. 10–28, 2003, paras. 142–43, 165–66, U.N. Doc. E/2004/22; ESCOR, Supp. No. 2 (2004) (concluding observations on Brazil); Rep. on the Twenty-Fifth, Twenty-Sixth, Twenty-Seventh Sessions of the Comm'n on Econ., Soc. & Cultural Rights, Apr. 23–May 11, Aug. 13–31, Nov. 12–30, 2001, paras. 121, 132, 151, U.N. Doc. E/2002/22; ESCOR, Supp. No. 2 (2002) (concluding observations on Honduras); id. paras. 450, 466 (concluding observations on Panama); id. paras. 761 (concluding observations on Colombia); Rep. on the Twentieth and Twenty-First Sessions of the Comm'n on Econ., Soc. & Cultural Rights, Apr. 26–May 14, Nov. 15–Dec. 3, 1999, para. 337, U.N. Doc. E/2000/22; ESCOR, Supp. No. 2 (2000) (concluding observations on Cameroon); Rep. on the Sixteenth and Seventeenth Sessions of the Comm'n on Econ., Soc. & Cultural Rights, Apr. 28–May 16, Nov. 17–Dec. 5, 1997, paras. 100, 109, 116, U.N. Doc. E/1998/22; ESCOR, Supp. No. 2 (1998) (concluding observations on the Russian Federation); Rep. on the Eighth and Ninth Sessions of the Comm'n on Econ., Soc. & Cultural Rights, May 10–28, Nov. 22–Dec. 10, 1993, paras. 231, 234, 236, U.N. Doc. E/1994/23; ESCOR, Supp. No. 2 (1994) (concluding observations Mexico).Google Scholar

174 See Rep. of the Comm'n on the Elimination of Racial Discrimination, 51st Sess., Aug. 4–22, 1997, annex V para. 4, U.N. Doc. A/52/18; GAOR, 52d Sess., Supp. No. 18 (1997). See also Rep. of the Comm'n on the Elimination of Racial Discrimination, 66th Sess., Feb. 21–Mar. 11, 2005, 67th Sess., Aug. 2–19, 2005, para. 294, U.N. Doc. A/60/18; GAOR, 60th Sess., Supp. No. 18 (2005) (concluding observations on Nigeria); Rep. of the Comm'n on the Elimination of Racial Discrimination, 64th Sess., Feb. 23–Mar. 12, 2004, 65th Sess., Aug. 2–20, 2004, para. 60, U.N. Doc. A/59/18; GAOR, 59th Sess., Supp. No. 18 (2004) (concluding observations on Brazil); id. paras. 190–94; Rep. of the Comm'n on the Elimination of Racial Discrimination, 62d Sess., Mar. 3–21, 2003, 63d Sess., Aug. 4–22, 2003, paras. 59–62, U.N. Doc. A/58/18; GAOR, 58th Sess., Supp. No. 18 (2003) (concluding observations on Ecuador); id. paras. 335, 339 (concluding observations on Bolivia); id. para. 405 (concluding observations on Finland); Rep. of the Comm'n on the Elimination of Racial Discrimination, 60th Sess., Mar. 4–22, 2002, 61st Sess., Aug. 5–23, 2002, paras. 330–31, U.N. Doc. A/57/18; GAOR, 57th Sess., Supp. No. 18 (2002) (concluding observations on Canada); Rep. of the Comm'n on the Elimination of Racial Discrimination, 58th Sess., Mar. 6–23, 2001, 59th Sess., July 30–Aug. 17, 2001, para. 400, U.N. Doc. A/56/18; GAOR, 56th Sess., Supp. No. 18 (2001) (concluding observations on the United States); Rep. of the Comm'n on the Elimination of Racial Discrimination, 56th Sess., Mar. 6–24, 2000, 57th Sess., July 31–Aug. 25, 2000, para. 32, U.N. Doc. A/55/18; GAOR, 55th Sess., Supp. No. 18 (2000) (concluding observations on Australia); Rep. of the Comm'n on the Elimination of Racial Discrimination, 54th Sess., Mar. 1–19, 1999, 55th Sess., Aug. 2–27, 1999, paras. 194, 202, U.N. Doc. A/54/18; GAOR, 54th Sess., Supp. No. 18 (1999) (concluding observations on Costa Rica); id. paras. 469, 473 (concluding observations on Colombia); Rep. of the Comm'n on the Elimination of Racial Discrimination, 52d Sess., Mar. 2–20, 1998, 53d Sess., Aug. 3–21, 1998, paras. 293, 299, U.N. Doc. A/53/18; GAOR, 53d Sess., Supp. No. 18 (1998) (concluding observations on Cambodia); Rep. of the Comm'n on the Elimination of Racial Discrimination, 50th Sess., Mar. 3–21, 1997, 51st Sess., Aug. 4–22, 1997, paras. 338, 350, U.N. Doc. A/52/18; GAOR, 52d Sess., Supp. No. 18 (1997) (concluding observations on Panama); Rep. of the Comm'n on the Elimination of Racial Discrimination, 48th Sess., Feb. 26–Mar. 15, 1996, 49th Sess., Aug. 5–23, 1996, paras. 139, 148, U.N. Doc. A/51/18; GAOR, 51st Sess., Supp. No. 18 (1996) (concluding observations on Russian Federation); id. paras. 177, 189 (concluding observations on Finland); id. paras. 299, 303, 309 (concluding observations on Brazil); Rep. of the Comm'n on the Elimination of Racial Discrimination, paras. 535–36, U.N. Doc. A/50/18; GAOR, 50th Sess., Supp. No. 18 (1995) (concluding observations on Nicaragua).Google Scholar

175 The mechanism has been developed by the CERD itself to respond to problems requiring immediate attention and to prevent or limit the scale or number of serious violations of the Convention. See Rep. of the Comm'n on the Elimination of Racial Discrimination, 42d Sess., Mar. 1–19, 1993, 43d Sess., Aug. 2–20, 1993, annex III, U.N. Doc. A/48/18; GAOR, 48th Sess., Supp. No. 18 (1993). For an example, concerning in particular the refusal to consult Suriname's indigenous peoples about granting forestry and mining concessions to foreign companies and the fact that the mining companies’ activities, especially the dumping of mercury, constituted a threat to their health and the environment, see Comm'n on the Elimination of Racial Discrimination Dec. 1/69, U.N. Doc. CERD/C/DEC/SUR/5 (Aug. 18, 2006); Comm'n on the Elimination of Racial Discrimination Dec. 1/67, U.N. Doc. CERD/C/DEC/SUR/2 (Aug. 18, 2005); Comm'n on the Elimination of Racial Discrimination Dec. 3/62, U.N. Doc. CERD/C/62/Dec.3 (June 3, 2003). See also Comm'n on the Elimination of Racial Discrimination Dec. 1/68, U.N. Doc. CERD/C/USA/DEC/1 (Mar. 07, 2006) (concerning Shoshone indigenous peoples’ denial of their traditional rights to land through legislative efforts directed at privatizing Western Shoshone ancestral lands for transfer to multinational extractive industries and energy developers). Letters to the Russian Federation dated 11 March 2011 and 2 September 2011 express concern over the small number of indigenous peoples from the Nanai District in relation to the new draft law on traditional fishing activities, which would reportedly negatively affect traditional economic activities by preventing them from selling fish for their livelihood. See Rep. of the Comm'n on the Elimination of Racial Discrimination, 78th Sess., Feb. 14–Mar. 11, 2011, 79th Sess., Aug. 8–Sept. 2, 2011, 10, para. 28, U.N. Doc. A/66/18; GAOR, 66th Sess., Supp. No. 18 (2011).Google Scholar

176 Rep. of the Comm'n on the Elimination of Racial Discrimination, 51st Sess., Aug. 4–22, 1997, annex V para. 4, U.N. Doc. A/52/18; GAOR, 52d Sess., Supp. No. 18 (1997).Google Scholar

177 See, e.g., ECHR, supra note 53, at art. 46 (naming the functions of the Committee of Ministers).Google Scholar

178 The latter topic has prompted the adoption of several Council of Europe instruments. See European Charter for Regional or Minority Languages, Nov. 5, 1992, CETS No. 148; Framework Convention for the Protection of National Minorities, Feb. 1, 1995, CETS No. 157, 2151 U.N.T.S. 243. Protection of national minorities is also at the core of the mandate of the OSCE High Commissioner on National Minorities.Google Scholar

179 Handölsdalen v. Sweden, App. No. 39013/04 (2010), available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-97993 (violation of Art. 6, length of proceedings); Johtti Sapmelaccat Ry v. Finland, App. No. 42969/98 (2005), available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-68136 (inadmissible); Könkämä v. Sweden, App. No. 27033/95 (1996), available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-3390 (inadmissible); O.B. v. Norway, App. No. 15997/90 (1993), available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-1462 (inadmissible); Östergren v. Sweden, App. No. 13572/88, 69 Eur. Comm'n H.R. Dec. & Rep. 198 (1991) (inadmissible).Google Scholar

180 See Denmark, Hingitaq v., 2006-I Eur. Ct. H.R. (inadmissible).Google Scholar

181 ECHR, supra note 53, at art. 8. Article 8 states:Google Scholar

  1. (1)

    (1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.Google Scholar

Id.

182 Chapman v. United Kingdom, 2001-I Eur. Ct. H.R.Google Scholar

183 See id. at para. 73.Google Scholar

184 See id. at para. 93.Google Scholar

185 See id. at para. 96.Google Scholar

186 See, e.g., Xákmok Kásek Indigenous Community v. Paraguay, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 214, paras. 85–89, 183–217, 242–44 (Aug. 24, 2010); Saramaka People v. Suriname, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No.172, paras. 82– 96, 115, 124–40 (Nov. 28, 2007); Mayagana (Sumo) Awas Tingni Cmty v. Nicaragua, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 79, paras. 148–55 (Aug. 31, 2001); African Comm'n on Human & Peoples’ Rights, Soc. & Econ. Rights Action Ctr v. Nigeria, paras. 55–58, 64–66, Case No. ACHPR/COMM/A044/1 (Oct. 27, 2001), available at http://www.cesr.org/downloads/AfricanCommissionDecision.pdf; African Comm'n on Human & Peoples’ Rights, Ctr. for Minority Rights Dev. v. Kenya, 276/2003 (Feb. 4, 2010), available at http://www.unhcr.org/refworld/docid/4b8275a12.html. For a detailed analysis of the case law, see S. James Anaya & Robert Williams, The Protection of Indigenous Peoples’ Rights over Lands and Natural Resources Under the Inter-American Human Rights System, 14 Harvard Hum. Rts J. 33 (2001); Fodella, supra note 160; Lucas Lixinski, Treaty Interpretation by the Inter-American Court of Human Rights: Expansionism at the Service of the Unity of International Law, 21 Eur. J. Int'l L. 585 (2010); Gerald Neuman, Import, Export and Regional Consent in the Inter-American Court of Human Rights, 19 Eur. J. Int'l L. 101 (2008); Gaetano Pentassuglia, Towards a Jurisprudential Articulation of Indigenous Land Rights, 22 Eur. J. Int'l L. 165 (2011).Google Scholar

187 European Union Charter of Fundamental Rights, pmbl., Dec. 18, 2000, 2000 O.J. (C 364/01).Google Scholar

188 See id. at art. 7 (“Everyone has the right to respect for his or her private and family life, home and communications.”).Google Scholar

189 See Philip Alston & J. H. H. Weiler, An “Ever Closer Union” in Need of a Human Rights Policy: The European Union and Human Rights, in The EU and Human Rights 3 (Philip Alston ed., 1999); Armin von Bogdandy, The European Union as a Human Rights Organization? Human Rights at the Core of the European Union, 37 Common Mkt. L. Rev. 1307 (2000); Piet Eeckhout, The EU Charter of Fundamental Rights and the Federal Question, 39 Common Mkt. L. Rev. 945 (2002); Francis Geoffrey Jacobs, The European Convention on Human Rights, the EU Charter of Fundamental Rights and the European Court of Justice: The Impact of European Union Accession to the European Convention on Human Rights, in The Future of the European Judicial System in a Comparative Perspective 291 (Ingolf Pernice, Juliane Kokott & Cheryl Saunders eds., 2006).Google Scholar

190 See TFEU art. 218. The Lisbon Treaty foresees the accession of the EU to the ECHR, but subordinates it to a unanimous decision, which may in practice prove to be problematic. See Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Communities, Dec. 13, 2007, 2007 O.J. (C 306) art. 6, 218, protocol 8, declaration 2.Google Scholar