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Sealing animal welfare into the GATT exceptions: the international dimension of animal welfare in WTO disputes

Published online by Cambridge University Press:  11 October 2013

KATIE SYKES
KATIE SYKES*
Affiliation:
Assistant Professor of Law, Thompson Rivers University, Canada
*
*Email: katiesykes@mac.com
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Abstract

EC–Seal Products has been characterized as a contest between local moral preferences about animal welfare, on the one hand, and global commitments to trade disciplines on the other. But that description fails to take into account the development of international legal norms concerning animal welfare and their relevance to this case, as well as to other potential disputes involving animal welfare measures that affect trade. The international dimension of animal welfare implicates two ongoing debates in international trade law: what the relationship should be between WTO law and general international law, and the extent to which ‘public morals’ under Article XX(a) of GATT can be locally defined or need to be internationally shared. This Article examines the argument that there is a general principle of international law concerning animal welfare, and analyzes the role that international norms regarding animal welfare should play in EC–Seal Products.

Type
Review Article
Information
World Trade Review , Volume 13 , Issue 3 , July 2014 , pp. 471 - 498
Copyright
Copyright © Katie Sykes 2013 

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References

1 European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400, WT/DS401, WT/DS369.

2 As established in Commission Regulation 1007/2009, OJ 2009 L 286/36, together with further details on implementation set forth in Commission Regulation 737/2010, OJ 2010 L 216/1.

3 General Agreement on Tariffs and Trade, 30 October 1947, 55 UNTS 194, entered into force 1 January 1948.

4 See, e.g., Fitzgerald, P. L., ‘“Morality” May Not Be Enough to Justify the EU Seal Products Ban: Animal Welfare Meets International Trade Law’, 14 Journal of International Wildlife Law and Policy (2011) 85 Google Scholar.

5 A useful summary of this well-rehearsed debate from the 1990s to the present is in Lang, A., World Trade Law After Neoliberalism: Re-Imagining the Global Economic Order (Oxford University Press, 2011), at 148–154 Google Scholar. Some of the arguments over the role of general international law in trade disputes are considered in Section 5 of this Article.

6 Bowman, M., Davies, P., and Redgwell, C., Lyster's International Wildlife Law, 2nd edn (Cambridge University Press, 2010), at 678–682 Google Scholar.

7 Ibid., at 681.

8 See discussion in Wu, M., ‘Free Trade and the Protection of Public Morals: An Analysis of the Newly Emerging Public Morals Clause Doctrine’, 33 Yale Journal of International Law (2008) 215, at 231–233 Google Scholar.

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10 (1969) 1155 UNTS 331.

11 Panel Report, European Communties – Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/R, WT/DS292/R, WT/DS/293/R, adopted 21 November 2006 (EC–Biotech), para. 7.69.

12 The International Law Commission's report Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law describes Article 31(3)(c) as expressing a principle of ‘systemic integration’ of international law whereby ‘international obligations are interpreted by reference to their normative environment’. Report of the Study Group of the International Law Commission at its fifty-eighth session, finalized by Martii Koskenniemi, UN Document A/CN.4/L.682 (13 April 2006), para. 413. This report was cited with approval by the WTO Appellate Body in EC–Large Civil Aircraft. Appellate Body Report, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS/316/AB/R, adopted 1 June 2011, paras. 844–845. See discussion in Section 5.

13 India banned testing cosmetics and cosmetic ingredients on animals in June 2013, following a campaign in which HSI played a prominent role. An Indian Member of Parliament was quoted as saying that the next step should be ‘banning cosmetics products that are tested on animals abroad and then imported and sold here in India’. Dhar, A., ‘India bans testing of cosmetics on animals’, The Hindu (29 June 2013)Google Scholar, quoting Member of Parliament Baijayant Panda.

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17 Ibid., at 3.

18 Ibid., at 94.

19 F. Mowat, Sea of Slaughter (1987) (first published 1984), at 392.

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22 Council Directive 85/444 of 27 September 1985, OJ 1985 L259/70.

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29 Marine Mammal Regulations, supra note 28, ss. 28–29.

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31 ‘Namibia's controversial annual seal hunt set to begin’, BBC News Africa (14 July 2012), http://www.bbc.co.uk/news/world-africa-18845596.

32 16 USC 1385 s. 102.

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47 ‘Japan attacks Australian role in whaling “moral crusade”’, The Guardian (3 July 2013), http://www.guardian.co.uk/environment/2013/jul/03/japan-australian-role-whaling-crusade.

48 ‘Nunavut's environment minister slams EU seal ban’, Nunavut News (8 May 2013), http://www.nunatsiaqonline.ca/stories/article/65674nunavuts_environment_minister_slams_eu_seal_ban.

49 Chandola, M. V., ‘Dissecting Amerian Animal Protection Law: Healing the Wounds with Animal Rights and Eastern Enlightenment’, 8 Wisconsin Environmental Law Journal 3, at 21–28 Google Scholar (describing philsophical debates ‘[t]housands of years ago in India … on the status of animals and their relationship with humans and the universe’ (at 21) and the adoption of laws in certain Indian kingdoms requiring the compassionate treatment of animals); Bowman et al., Lyster's International Wildlife Law, supra note 6, at 676–678.

50 An Act to Prevent the Cruel and Improper Treatment of Cattle, Geo. IV, c. 7.

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53 Wagman and Liebman, A Worldview of Animal Law, at 39–40, 262–269.

54 Bowman et al., Lyster's International Wildlife Law, supra note 6 at 680.

55 Wagman and Liebman, A Worldview of Animal Law, supra note 52, at 24.

56 Ibid.

57 3 March 1973, 993 UNTS 243.

58 Convention on International Trade in Endangered Species of Wild Fauna and Flora, ‘What is CITES?’ http://www.cites.org/eng/disc/parties/index.php.

59 Bowman, M., ‘Conflict or Compatibility? The Trade, Conservation and Animal Welfare Dimensions of CITES’, 1 Journal of International Wildlife Law and Policy (1998) 9 CrossRefGoogle Scholar.

60 Ibid., at 10.

61 Articles 3(2)(c) (export of Appendix I species); 3(4)(b) (re-export of Appendix I species); 4(2)(c) (export of Appendix II species); 4(5)(b) (re-export of Appendix II species); 4(6)(b) (introduction from the sea of Appendix II species); and 5(2)(b) (export of Appendix III species). In addition, while Article 7 of CITES provides for discretionary waivers from the normal documentation requirements for certain specimens being transported as part of a zoo, circus, menagerie, plant exhibition, or traveling exhibition, such a waiver can only be granted if the relevant authority ‘is satisfied that any living specimen will be so transported and cared for as to minimize the risk of injury, damage to health or cruel treatment’ (Article 7(7)(c)).

62 Articles 8(4)(b) and 8(5).

63 Whales are especially difficult to kill without cruelty, simply because they are so large. Bowman et al., Lyster's International Wildlife Law, question whether it is realistically possible to kill them ‘in an acceptable, humane fashion’. Bowman et al., Lyster's International Wildlife Law, supra note 6, at 685.

64 2 December 1946, 161 UNTS 72 (‘ICRW’).

65 Seventh recital of the preamble to the ICRW.

66 Bowman et al., Lyster's International Wildlife Law, supra note 6, at 684.

67 Ibid.

68 D'Amato, A. and Chopra, S. K., ‘Whales: Their Emerging Right to Life’, 85 American Journal of International Law 21 (1991), at 45 Google Scholar.

69 Resolution 5, on the Humane Killing of Marine Life, 1958 UN Conference on the Law of the Sea, Official Records 144, Doc. A/CONF.13/L56, Vol II, Annexes at 109, cited in Bowman et al., Lyster's International Wildlife Law, supra note 6. at 679.

70 1 June 1972, 1080 UNTS 175.

71 Annex Article 7(a).

72 The provisional draft text of the proposed UDAW as of 2011 is available at http://s3.amazonaws.com/media.animalsmatter.org/files/resource_files/original/Latest%20draft%20UDAW%20Text%20-%202011.pdf?1314177486.

73 Wagman and Liebman, A Worldview of Animal Law, supra note 52, at 25.

74 Ibid.

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76 Ibid., at 542–543.

77 IUCN/UNEP/WWF, Caring for the Earth: A Strategy for Sustainable Living (1991), at 14.

78 Bowman et al., Lyster's International Wildlife Law, supra note 6, at 680.

79 Case Concerning the Gabcikovo-Nagymaros Project (Hungary v. Slovakia), ICJ Reports (1997) 7, at 109.

80 Bowman et al., Lyster's International Wildlife Law, supra note 6, at 678.

81 Ibid., at 681.

82 Palmeter, D. and Mavroidis, P. C., ‘The WTO Legal System: Sources of Law’, 92 American Journal of International Law (1998) 398 Google Scholar, at 398. The ‘covered agreements’, as defined in Article 1.1 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (Dispute Settlement Understanding or DSU) and set out in Appendix 1 thereto, are the cluster of treaties that establish the rights and obligations of WTO members. Marrakesh Agreement Establishing the World Trade Organization, Annex 2, The Legal Texts: The Results of the Uruguay Round Of Multilateral Trade Negotiations (1994), 1869 UNTS 401, 33 ILM 1226 (1994).

83 International Law Commission, Fragmentation of International Law, supra note 12, para. 45.

84 Appellate Body Report, US – Standards for Reformulated and Conventional Gasoline, WT/DS4/AB/R, adopted 20 May 1996, at 17.

85 ‘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 light of its object and purpose.’

86 Appellate Body Report, Japan – Taxes on Alcoholic Beverages, WT/DS8, 10, 11/AB/R, adopted 1 November 1996, at 10.

87 Appellate Body Report, United States – Import Prohibitions of Certain Shrimp and Shrimp Products (adopted 6 November 1998), WT/DS58/AB/R.

88 Ibid., paras. 130–132.

89 Ibid., para. 131.

90 Ibid, para. 158 and n. 157.

91 Lang, World Trade Law After Neoliberalism, supra note 5, at 150.

92 Appellate Body Report, EC–Measures Concerning Meat and Meat Products (Hormones) (adopted 13 February 1998), WT/DS26/AB/R and WT/DS48/AB/R, at para. 123.

93 Panel Report, EC–Biotech, supra note 11, paras. 7.68–7.71. Since not all the parties to the dispute in EC–Biotech were parties to the non-WTO treaty provision being invoked (the Cartagena Protocol to the Convention on Biological Diversity), this interpretation did not determine the outcome of the case. Ibid., para. 7.72.

94 Including the ILC's criticism of the EC–Biotech Panel's restrictive interpretation of ‘between the parties’ in its report on Fragmentation of International Law, supra note 12, paras. 471–472 . Trebilcock, Howse, and Eliason conclude that the Appellate Body in EC–Large Civil Aircraft has overruled the EC–Biotech Panel on this point. Trebilcock, M., Howse, R., and Eliason, A., The Regulation of International Trade, 4th edn (2013), at 199 Google Scholar.

95 EC–Large Civil Aircraft, supra note 12, para. 845.

96 Lang, World Trade Law After Neoliberalism, supra note 5, at 149–151.

97 DSU, US–Gasoline, supra note 82, Art. 3(2).

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100 Supra note 98, at 511.

101 Ibid .

102 Pauwelyn, J., Conflict of Norms in International Law: How WTO Law Relates to Other Rules of International Law (Cambridge University Press, 2003), at 38 Google Scholar.

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104 EC–Biotech, supra note 11, para. 7.69. The Panel was careful to note, however, that it was not suggesting applicable rules of international law would function ‘invariably or exclusively as a kind of “tie-breaker” in the interpretative process’. Ibid ., n. 254.

105 Ibid ., para. 7.92.

106 Lang, World Trade Law After Neoliberalism, supra note 5, at 149.

107 EC–Hormones, supra note 92, para. 123; EC–Biotech, supra note 11, para. 7.89.

108 Supra note 12, para. 414.

109 Bowman et al., Lyster's International Wildlife Law, supra note 6, at 681; see also US–Shrimp, supra note 87, at para. 130 and n.109.

110 See, e.g., Pitschas, C. and Schloemann, H., ‘WTO Compatibility of the EU Seal Regime: Why Public Morality is Enough (but May not Be Necessary)’, Beiträge zum Transnationalen Wirtschaftsrecht (2012), at 5 Google Scholar, arguing that the EU Seals Regime ‘may not even violate any WTO provisions in the first place, as it is in principle designed as an all-encompassing, non-discriminatory ban on sales, not as a trade measure that targets imports’.

111 Bowman et al., Lyster's International Wildlife Law, supra note 6, at 681.

112 General Agreement on Trade in Services, 15 April 1994, Annex 1B to the Marrakesh Agreement Establishing the World Trade Organization, The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations 284 (1999), 1869 U.N.T.S. 183, 33 I.L.M. 1167 (1994).

113 US–Gambling, supra note 9.

114 Panel Report, US–Gambling, supra note 9, para. 6.461.

115 Panel Report, China–Audiovisuals, supra note 9, para. 7.759.

116 Charnovitz, S., ‘The Moral Exception in Trade Policy’, 38 Virginia Journal of International Law (1998) 689, at 705–716 Google Scholar.

117 Ibid., at 712 (referring to the 1935 International Convention concerning the Transit of Animals, 20 February 1935, 193 LNTS 39, Article 5, which requires exporting countries to take steps to ensure that animals in transit are properly loaded, suitably fed, and receive all necessary attention ‘in order to avoid unnecessary suffering’).

118 Panel Report, United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/R, adopted 13 June 2012, as modified by Appellate Body Report WT/DS381/AB/R, paras. 7.437, 7.499. The Appellate Body upheld the Panel's finding that dolphin protection was a legitimate objective for the US measure within the meaning of Article 2.2 of the TBT Agreement. Appellate Body Report, United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/AB/R, adopted 13 June 2012, para. 342.

119 See Wu, ‘Free Trade and the Protection of Public Morals’, supra note 8, at 232–233 (observing that the US–Gambling panel concluded that a ban on internet gambling came under the public morals exception in part based on evidence that a number of countries had adopted restrictions on internet gambling, or gambling in general).

120 T. Perišin, ‘YJIL Symposium: Beyond the (Cute) Face of the Matter: Aims, Coherence and Necessity of the EU Seal Products Regulations’ (blog post on Opinio Juris), 28 June 2012 (http://opiniojuris.org/2012/06/28/yjil-symposium-beyond-the-cute-face-of-the-matter-aims-coherence-and-necessity-of-the-eu-seal-products-regulations/), suggesting that the only reason for banning seal products as opposed to other animal products may be that ‘seals are “cute”’, in which case the EC–Seal Products would have to decide ‘whether it wants to accept public morals based solely on irrational, emotional attitudes’; Perišin, , ‘Is the EU Seal Products Regulation a Sealed Deal? EU and WTO Challenges’, 62 International and Comparative Law Quarterly 373 (2013), at 395 Google Scholar.

121 See discussion in Howse and Langille, ‘Permitting Pluralism’, supra note 41, at 379–381.

122 Albeit only on a non-profit basis, in the case of the marine management exception.

123 Perišin, ‘Is the EU Seal Products Regulation a Sealed Deal?’, supra note 120, at 399.

124 R. v. Ménard (1978), 43 CCC (2d) 458 (Que. C.A.), at 465–466.

125 The acronym is derived from the organization's former name, the Office Internationale des Epizooties.

126 OIE, Terrestrial Animal Health Code, http://www.oie.int/index.php?id=169&L=0&htmfile=chapitre_1.7.1.htm, Article 7.1.2.

127 Article 7.1.2(6).

128 Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres, WT/DS332/AB/R, adopted 17 December 2007.

129 Appellate Body Report, Korea – Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WT/DS161, 169/AB/R, adopted 10 January 2001.

130 China–Audiovisuals (Appellate Body Report), supra note 9, para. 242.

131 Charnovitz, ‘The Moral Exception in Trade Policy’, supra note 116, at 742–743.

132 Bartels, L., ‘The WTO Legality of the Application of the EU's Emission Trading System to Aviation’, 23 European Journal of International Law 429 (2012), at 452 Google Scholar (emphasis in the original).

133 R. Howse, ‘Seals Day Two’ (live blog from panel hearings in EU–Seal Products on International Economic Law and Policy blog), 20 February 2013, http://worldtradelaw.typepad.com/ielpblog/2013/02/seals-day-two.html.

134 Supra note 2; United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UNGAOR, 61st Sess, UN Doc A/61/L67 (2007) (‘UNDRIP’). Canada also exempts aboriginal hunters and fishers from certain regulatory requirements of general application, as required in conformity with constitutionally-protected aboriginal rights and treaty commitments. Certain aboriginal hunters are exempt, for example, from the prohibition on trading whitecoats and bluebacks. Marine Mammal Regulations, supra note 28, s. 27.

135 UNDRIP, ibid ., Art. 4.

136 Perišin, ‘Is the EU Seal Products Regulation a Sealed Deal?’, supra note 120, at 400, observes that ‘there is nothing inherently inhumane in the hunting methods of indigenous communities’, which for her is an argument in favour of including a condition related to humane hunting methods included in the indigenous exception, since products from indigenous hunts should be able to meet that condition. But one might equally well think it is reason to conclude that there is no need to impose such a condition, as there is no reason for undue concern that indigenous rules and traditions will not provide adequate protection, and thus to conclude that the exception as adopted is compatible with both respect for self-government by indigeous peoples and the protection of animal welfare.