[WTO Case Review Series No.10] European Communities—Measures Prohibiting the Importation and Marketing of Seal Products (WT/DS400/DS401): Assessing the legality of trade restrictions for animal welfare under the WTO Agreement

In 2009, the European Union (EU) introduced a regulation prohibiting the importation and marketing of seal products except for those originated from the hunts by indigenous people or from the hunts for maritime resource management. The measure relates to animal welfare as it is concerned about public moral sentiments that have deteriorated due to the inhumane method of seal hunting. Canada and Norway, countries that export seal products, brought a case to the WTO. The Appellate Body, first of all, denied the applicability of the Agreement on Technical Barriers to Trade (TBT) because the measure permits the importation of seal products originated from the hunts by indigenous people and therefore deviates from the definition of technical regulation (namely, a document which lays down "product characteristics"). This indicates that the WTO discipline over the trade measures for animal welfare could be easily weakened depending on the design of each measure. Second, the Appellate Body admitted that the measure at issue is "necessary to protect public morals" (Article 20(a), GATT). The notion of public morals here seems to be so flexible that quite a wide range of trade restrictions for animal welfare could be justified under this Article. The measure at issue was found to be inconsistent with the chapeau of Article 20 as it has been applied in a manner which constitutes a means of arbitrary or unjustifiable discrimination between indigenous hunts and commercial hunts as well as among indigenous communities. These shortcomings, however, could be addressed thorough a partial amendment of the measure. As an overall assessment, the rulings of the panel and the Appellate Body acknowledged a wide margin of justifying trade restrictions for animal welfare, although some of the findings stemmed from the distinct design of the measure at issue, specifically the dual policy objectives of promoting animal welfare and protecting indigenous culture.