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.

World Trade Organization (WTO) judges regularly assess aggregate state practice and international standardswhen they adjudicate claims under Article XX of the General Agreement on Tariffs and Trade (GATT) and Art. XIV of the General Agreement on Trade inServices (GATS). How they do so has helped to determine the institutional evolution of the WTO, given the paralysis of its legislative organs. In this comment, we con-sider the reports in the EC—Seal Products dispute in light of this view, as well as theory and evidence of a comparative nature.

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.

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.

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 negotiators and drafters of the Agreement establishing the World Trade Organization(WTO), which includes the General Agreement on Tariffs and Trade 1947(GATT) and the Agreement on Technical Barriers to Trade(TBT), as well as other subagreements dealing with domestic regulation, such as the Agreement on Sanitary and Phytosanitary Measures(SPS), did not do a great job of doctrinal integration among the different documents that comprise the WTO Agreement. To be fair, at the end of the Uruguay Round, the hour was late and they may have felt that the basic ideas were sufficiently clear that it could all be sorted out in litigation. But in several contexts, including within the original GATT, the text of which dates from 1947, they covered the same ground in multiple places, without stating clearly how the different norms relate to one another,and without articulating plausible reasons for different treatment. For example, why is different language used for national treatment in three different places within Article III of GATT, and why is that language different from the language that appearsto have the same purpose in the TBT Agreement or in the SPS Agreement?