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

• DOI: http://doi.org/10.1111/reel.12091
• Author: Gabrielle Marceau
• Published date: 01 November 2014
• Date: 01 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

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 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.

INTRODUCTION

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’).

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Review of European Community & International Environmental Law

RECIEL 23 (3) 2014. ISSN 2050-0386 DOI: 10.1111/reel.12091

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