Seal Products Research Articles

A Comment on the Appellate Body Report in EC‐Seal Products in the Context of the Trade and Environment Debate

The Appellate Body (AB) Report in EC‐Seal Products has potential ramifications for the environmental or social concerns in the World Trade Organization. It refines the jurisprudence on the balance between members' market access obligations and their right to give priority consideration to non‐trade concerns under the General Agreement on Tariffs and Trade (GATT) and the Agreement on Technical Barriers to Trade (TBT). This article outlines the main points of the AB Report, particularly related to what measures constitute technical regulations within the scope of the TBT Agreement, and the relationship between the GATT and TBT Agreement in the context of the pursuit of legitimate non‐trade concerns. It further highlights one of the issues raised in the report concerning processes and production methods (PPMs). In particular, it offers comments on what could constitute product‐related and non‐product related PPMs – a categorization that has emerged in the trade‐environment doctrine over the last 40 years and that should now be informed by the AB's interpretation of the TBT Agreement in this case.

Trade Measures to Address Environmental Concerns in Faraway Places: Jurisdictional Issues

States sometimes restrict imports to address environmental concerns that arise from conduct outside of their territory: common examples include deforestation in foreign places or illegal fishing in the high seas. Apart from the need to comply with the agreements of the World Trade Organization (WTO), the adoption of such trade measures gives rise to two jurisdictional issues: first, the importing State might be alleged to be engaging in extraterritorial jurisdiction; and second, the importing State may affect the economic interests of indigenous communities. This article analyzes WTO jurisprudence and other international instruments. It shows that jurisdictional issues are underpinned by sovereignty – of the importing State, the exporting State and even other groups. If there is a need for a nexus between the importing State and the relevant product or measure in order to fall within any jurisdictional limitations of the WTO agreements (which remains uncertain), it will be more easily satisfied if environmental problems impact upon the ‘public morals’ of citizens or consumers, as was found in the recent challenge to the European Union's ban on seal products. However, the complex needs and interests of other States must also be considered, especially if the trade measures impact on the interests of indigenous peoples, and on the established or emerging legal arrangements between indigenous peoples and domestic governments. The design and application of trade measures to address environmental concerns requires flexibility and a commitment to seeking international consensus as well as an openness to rights and norms from outside the trade regime.

EC Seal Products (TBT Aspects of the Panel and Appellate Body Reports): Seals and Sensibilities

When the European Union imposed a ban on the import of seal products, Canada and Norway challenged that ban at the World Trade Organization. This paper analyzes the issues and reasoning in the 2013 Dispute Settlement Panel decision, with some attention to the Appellate Body decision that followed. Among the important questions are the definition of a "technical regulation" as well as particular interpretations of the agreement on Technical Barriers to Trade (TBT). The decision dealt more generally with the balance between a nation’s right to regulate in support of its citizens’ moral concerns and trading partners’ rights to market access.

European Communities – Measures Prohibiting the Importation and Marketing of Seal Products Reports of the Panel 25 November 2013

European Communities – Measures Prohibiting the Importation and Marketing of Seal Products Reports of the Panel 25 November 2013

Modification of the Conditions of Competition: Has 'Treatment No Less Favourable' Lost its Meaning?

The less favourable treatment (LFT) condition is a cornerstone of international trade law and is found in national treatment obligations that apply to both trade in goods (Articles III:4 GATT 1994 and 2.1 TBT Agreement) and trade in services (Article XVII GATS). In the case law, the LFT obligation focuses on whether the measure at issue results in a modification of the conditions of competition (MoCC) of the imported product or service (supplier) vis-a-vis the domestic product or service (supplier). Considering the difference in wording between the various national treatment provisions, and by adopting a comparative historical perspective, this paper analyses the GATT, TBT and GATS case law on MoCC, culminating for now in the Appellate Body report in EC – Seal Products, with the objective of identifying a common standard in the interpretation of LFT.

Protecting Human Rights as Public Morals under the General Agreement on Tariffs and Trade (gatt) 1994

This article analyses the acceptance of the concept of ‘public morals’ as a legitimate objective grounded in the importance of internationally recognised human rights instruments and worthy of protection by a Panel of the World Trade Organisation (wto) in the case European Communities – Measures Prohibiting the Importation and Marketing of Seal Products. It analyses how the General Exception clause to the General Agreement on Tariffs and Trade (gatt) Article XX(a) was successfully used to defend a regulatory measure and concludes by endorsing a symbiotic relationship between wto Agreements and international human rights instruments.

‘Direct and Individual Concern’ for Newfoundland’s Sealing Industry? – When a Legal Concept and Empirical Data Collide

In the court cases aiming to annul EU Regulation 1007/2009 on trade in seal products the European Courts have inter alia ruled that a ‘direct and individual’ concern, a precondition for providing locus standi for the annulment of a contested regulation, does not exist for the commercial sealing industry in Canada. Based on Community case-law, the principle of ‘direct and individual concern’ is therefore interpreted in a restrictive manner, yet without hinting towards judicial activism. This article aims to ascertain whether this interpretation can be brought in conjunction with empirical findings stemming from field work conducted in the sealing industry in Newfoundland or whether the legal concept and empirical data contradict each other. While analysing the legal reasoning of the courts in two exemplary cases, a case study of three workers in the industry is presented to provide ethnographic insight into the commercial sealing industry and to provide empirical data on the ‘direct and individual concern’ of developments in the EU for them.

Lost in Complexity? The Panel's Report in European Communities – Measures Prohibiting the Importation and Marketing of Seal Products

Lost in Complexity? The Panel's Report in <i>European Communities – Measures Prohibiting the Importation and Marketing of Seal Products</i>

The WTO Seal Products Panel—The “Public Morals” Defense

A WTO Panel has rendered a split decision in a challenge by Canada and Norway to the EU ban on seal products. The Panel ruled that the ban violated the national treatment and MFN obligations of the EU under Article 2.1 of the Agreement on Technical Barriers to Trade (TBT Agreement) as well as under the General Agreement on Tariffs and Trade (GATT). The Panel rejected the argument that the ban was "more trade-restrictive than necessary" under TBT Article 2.2. The Reports of the WTO Panel in European Communities - Measures Prohibiting the Importation and Marketing of Seal Products (DS400, DS401) were released on 25 November 2013.

The goals of the EU seal products trade regulation: from effectiveness to consequence

ABSTRACTWhen policies are adopted, it seems reasonable to assume that they address a certain issue and provide means to mitigate specific problems. This seems the case with the EU's regime on trade in seal products, but it becomes evident that the goal formulation in this case is blurry and unclear. Taking animal welfare, the so-called ‘Inuit exemption’, and internal market harmonisation into account, this article examines the goals of the seal products trade regime and how they are applied. It becomes clear that the attainment of goals bears consequences that are unprecedented due to conceptual and formulation difficulties. Given the indistinct goal formulation during the policy-shaping process and the goal formulation in the policy itself, it seems fair to say that the regime does not aim to improve animal welfare standards in the commercial seal hunt, but rather aims to shut down the commercial hunt completely. This, however, affects Inuit and non-Inuit seal hunters equally and is inconsistent with secondary goals that are formulated in the EU's documents relating to the Arctic. Therefore, the seal products trade regime has consequences that challenge the EU's ambitions in the north.

A Comment on the Public Morals Exception in International Trade and the EC - Seal Products Case: Moral Imperialism and Other Concerns

Public morality concerns are ripe for consideration in international trade disputes. The long-awaited WTO decisions in EC – Seal Products afforded the world's leading international trade arbiter the opportunity to consider, among other things, application of the public morals exception in GATT and the TBT Agreement to the EU's 2009 ban on the importation and marketing of seal products. While the EU's seal products ban was ultimately held to be discriminatory and thus did not meet the requirements of GATT Article XX's chapeau, the reasoning enunciated by the Appellate Body (and WTO Panel) would have allowed the ban as being justified under the right to protect public morals. That same reasoning, however, lacked a measured analysis weighing the competing moral considerations about animal (seal) welfare against protecting the traditional and cultural practices (seal hunting) of impacted indigenous communities with short shrift being paid to the indigenous community interests. In result, the WTO's most recent rulings on public morals effectively legitimizes the moral imperialism inherent in the EU's seal products ban.

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

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.

EC Seal Products: Seals and Sensibilities (TBT Aspects of the Panel and Appellate Body Reports)

The EC-Seals case stemmed from complaints by Canada and Norway against European Union regulations that effectively banned the importation and marketing of seal products from those countries. The EU said it had responded to European moral outrage at the killing of seals. Canada and Norway challenged the regime under various provisions of the Technical Barriers to Trade (TBT) Agreement and the GATT. This analysis looks primarily at the WTO panel decision and considers issues such as whether there is any bright line to be drawn between legitimate and illegitimate purposes in regulation and the proper legal meaning of a “technical regulation.”

Measures with Multiple Purposes: Puzzles from EC—Seal Products

European Communities—Measures Prohibiting the Importation and Marketing of Seal Products is the first case in which the dispute system of the World Trade Organization (WTO) has wrestled with a regulation that pursued mul-tiple conflicting, legitimate purposes. (I will explain later why Brazil—Retreaded Tyres is not such a case.) This generates puzzles about applying the definition of a “technical regulation” to complex measures; about whether an exception to a ban can be justified by a purpose different from that of the ban; and about how to apply “less restrictive alternative” analysis to measures with multiple goals. The first of these puzzles is unique to the Agreement on Technical Barriers to Trade (TBT); the second and third concern the TBT, the General Agree-ment on Tariffs and Trade (GATT), and probably other agreements.

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

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.

REGIONAL AFFAIRS

WTO - European Seal Products Appeal Decided 372 Aarhus Convention - 44th Compliance Committee "Elsa Tsioumani" 373 Africa - The "Great Green Wall": Implementation Constraints "Violet O. Aigbokhaevbo" 375

Indigenous Interests and the Chapeau of Article XX: Equality of What?

My analysis focuses on a limited aspect of the Appellate Body’s (AB) EC—Seal Products decision under the chapeau of Article XX of the General Agreement on Tariffs and Trade (GATT). It is revelatory for the kind of discrimination at issue under the chapeau in surprising ways.The general exceptions in Article XX serve to justify measures infringing other GATT provisions that have a close nexus to a list of types of public policies. The list of public policies is exhaustive. The chapeau prohibits application of those measures that arbitrarily or unjustifiably discriminate between countries where the same conditions prevail or that constitute a disguised restriction on international trade.

Fair trade in Germany left the niche market. Power shifts observed in global fair trade value chains

Fair trade is a fast growing niche market in Europe. Producer and consumer are linked via global value chains, based on the idea of solidarity manifested in a variety of social, economic and increasingly ecological criteria. In the German market, double-digit percentage growth is achieved by augmenting quality and diversity of fair trade products and selling sealed products via supermarkets and discounters. In consequence, the global value chains are subject to change; new actors not belonging to the social movement are getting involved. New steps of value creation are being inserted into existing value chains or shifted along the value chain, primarily into the consumer’s country. As a consequence, power shifts south to north are observed. This aspect leads to the question whether the fair-trade-movement is still changing the conventional world trade system from within or if it is selling its reputation as a price for growth by cooperating with the market actors it is criticising. In this article the results of a study are presented, focusing on value chains of fair trade food products on the German market and their changes over time, on the upcoming of various new highly processed composite goods and on the new possibility for manufacturers and discounters to certify their in-house brand products.

Scoop de 2013: L'OMC devient pro-bien-être animal!

Incredible but true: the WTO has ruled, on 25 November 2013, for the protection of animal welfare! Although the EU regulation of 2009 banning seal products contains some violations of international trade rules, the seal hunt has been condemned as a cruel practice.

Editors’ Introduction: Trade, Animal Welfare, and Indigenous Communities: A Symposium on the WTO EC—Seal Products Case

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