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

AuthorGabrielle Marceau
Published date01 November 2014
Date01 November 2014
A Comment on the Appellate Body Report in
EC-Seal Products in the Context of the Trade and
Environment Debate
Gabrielle Marceau*
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
(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 pro-
cesses and production methods (PPMs). In particular,
it offers comments on what could constitute product-
related and non-product related PPMs – a categoriza-
tion 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 Agree-
ment in this case.
Within the last 20 years the Appellate Body (AB) has
interpreted relevant provisions of the World Trade
Organization (WTO) agreements so as to provide WTO
members with policy space for measures based on jus-
tifiable non-trade concerns applied in good faith.1Ini-
tially, the pursuit of justifiable non-trade concerns was
achieved by interpreting the general exceptions in
Article XX of the General Agreement on Tariffs and
Trade (GATT)2in a way that gave WTO members the
necessary flexibility to pursue environmental and social
policies in relation to trade in goods,3as long as their
measures respected the prescriptions of the relevant
provisions. It then applied the same jurisprudence
principles to trade in services.4The AB recently charted
a similar course through its interpretation of Articles
2.1 and 2.2 of the Agreement on Technical Barriers to
Trade (TBT Agreement, or TBT) 5along the lines of the
existing GATT balance between members’ market
access obligations and their right to give priority to
non-trade concerns.6
The recent AB Report in EC-Seal Products further
refines this jurisprudence, as the AB pronounced on a
European Union (EU) measure claimed to be a TBT-
consistent regulation on trade, necessary for the protec-
tion of public morals concerning seal welfare.7The
measure at issue (referred to here as the ‘EU Seal
* Corresponding author: Gabrielle Marceau, School of Law, Univer-
sity of Geneva, 40 Boulevard du Pont d’Arve, 1205 Geneva, Switzer-
land. Email: gabrielle.marceau@wto.org.
1The WTO AB has held, from its f‌irst report, that WTO law should not
be read in clinical isolation from wider international law and that trade
law should not be divorced from other international concerns, includ-
ing protection of the natural environment. See WTO AB 29 April 1996,
United States – Standards for Reformulated and Conventional Gaso-
line, WT/DS2/AB/R (‘US-Reformulated Gasoline’), at 15–17. See also
G. Marceau and J. Wyatt, ‘The WTO’s Efforts to Balance Economic
Development and Environmental Protection: A Short Review of
Appellate Body Jurisprudence’, 1:1 Latin American Journal of Inter-
national Trade Law (2013), 291.
2General Agreement on Tariffs and Trade 1994 (Marrakesh, 15 April
1994; in force 1 January 1995) (‘GATT’).
3US-Reformulated Gasoline, n. 1 above, at 15–17; WTO AB 12
October 1998, United States – Import Prohibition of Certain Shrimp
and Shrimp Products, WT/DS58/AB/R (‘US-Shrimp’), at paragraph
155; WTO AB 12 March 2001, European Communities – Measures
Affecting Asbestos and Asbestos-containing Products, WT/DS135/
AB/R (‘EC-Asbestos’), at paragraph 168; WTO AB 20 October 1998,
Australia – Measures Affecting Importation of Salmon, WT/DS18/
AB/R, at paragraphs 124–125; WTO AB 16 January 1998, European
Communities – Measures Concerning Meat and Meat Products (Hor-
mones), WT/DS48/AB/R, at paragraph 186; WTO AB 11 December
2000, Korea – Measures Affecting Imports of Fresh, Chilled and
Frozen Beef, WT/DS161/AB/R; WT/DS169/AB/R, at paragraph 162;
WTO AB 3 December 2007, Brazil – Measures Affecting Imports of
Retreaded Tyres, WT/DS332/AB/R; WTO AB 21 December 2009,
China – Measures Affecting Trading Rights and Distribution Services
for Certain Publications and Audiovisual Entertainment Products,
WT/DS363/AB/R, at paragraphs 253 and 290–297.
4WTO AB 7 April 2005, United States – Measures Affecting the
Cross-Border Supply of Gambling and Betting Services, WT/DS285/
AB/R, at paragraph 291.
5Agreement on Technical Barriers to Trade (Marrakesh, 15 April
1994; in force 1 January 1995) (‘TBT Agreement’).
6G. Marceau, ‘The New TBT Jurisprudence in US-Clove Cigarettes,
WTO US-Tuna II and US – COOL’, 8:1 Asian Journal of WTO and
International Health Law and Policy (2013), 36.
7WTO AB 22 May 2014, European Communities – Measures Pro-
hibiting the Importation and Marketing of Seal Products, WT/DS400/
AB/R; WT/DS401/AB/R (‘EC-Seal Products, AB’).
Review of European Community & International Environmental Law
RECIEL 23 (3) 2014. ISSN 2050-0386 DOI: 10.1111/reel.12091
© 2014 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT