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Consensus Analysis, State Practice, and Majoritarian Activism in the WTO

Part of: WTO EC-Seal Products Case

Published online by Cambridge University Press:  20 January 2017

William J. Moon  and
Alec Stone Sweet
William J. Moon
Affiliation:
Schiller & Flexner, LLP
Alec Stone Sweet
Affiliation:
Politics, and International Studies at the Yale Law School
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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.

Type
Symposium: WTO EC-Seal Products Case
Information
AJIL Unbound , Volume 108 , 2014 , pp. 295 - 299
Copyright
Copyright © American Society of International Law 2014

References

1 General Agreement on Tariffs and Trade 1994, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 UNTS 187.

2 General Agreement on Trade in Services, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1B, 1869 UNTS 183.

3 We focus our analysis here on Article XX GATT, though some of the issues raised are directly relevant to the Agreement on the Application of Sanitary and Phytosanitary Measures, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 UNTS 493 and the Agreement on Technical Barriers to Trade, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1868 UNTS 120. SeeGregory Shaffer, A Structural Theory of WTO Dispute Settlement: Why Institu-tional Choice Lies at the Center of the GMO Case, 41 N.Y.U.J.Int’l L.& Pol.1 (2008).

4 Appellate Body Report, European Communities—Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/AB/R, WT/DS401/AB/R (Adopted June 18, 2014) [hereinafter Appellate Body Report, EC—Seal Products].

5 The WTO legal system is a product of extensive incomplete contracting through which states also delegate authority to judges. See generally Gregory Shaffer & Joel Trachtman, Interpretation and Institutional Choice at the WTO, 52 VA. J. INT’L L. 103 (2011); Alec Stone Sweet & Thomas L. Brunell, Trustee Courts and the Judicialization of International Regimes, 1 J.L. & Courts 61 (2013).

6 Alec Stone Sweet & Jud Mathews, Proportionality Balancing andGlobal Constitutionalism, 47 Colum. J. Transnat’l L.72, 81 (2008).

7 Id.at 79-80 and, as applied to the GATT-WTO, id.at 153-60.

8 For details and citations to the relevant literature, see Stone Sweet & Brunell, supra note 5, at 85.

9 Among many, see Appellate Body Report, United States—Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R (Adopted May 20, 1996); Panel Report, European Communities—Protection of Trademarks and Geographical Indi-cations for Agricultural Products and Foodstuffs, WT/DS290/R (Adopted Apr. 20, 2005); Appellate Body Report, China—Measures Affecting Imports of Automobile Parts, WT/DS339/AB/R, WT/DS340/AB/R, WT/DS342/AB/R (Adopted Jan. 12, 2009).

10 Consider Appellate Body Report, Canada—Certain Measures Concerning Periodicals, WT/DS31/AB/R (Adopted July 30, 1997);Appellate Body Report, Thailand—Customs and Fiscal Measures on Cigarettes from the Philippines, WT/DS371/AR/R (Adopted July 15 2011).

11 E.g., Appellate Body Report, European Communities—Measures Affecting Asbestos and Products Containing Asbestos, WT/DS135/AB/R (Adopted Apr. 5, 2001).

12 Among many, Appellate Body Report, United States—Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R (Adopted Nov. 6, 1998); Appellate Body Report, Mexico—Tax Measures on Soft Drinks and Other Beverages, WT/DS308/AB/R (Adopted Mar. 24, 2006); Appellate Body Report, China—Measures Related to the Exportation of Various Raw Materials, WT/DS394/AB/R, WT/DS395/AB/R, WT/DS398/AB/R (Adopted 22 Feb., 2012).

13 Appellate Body Report, Korea—Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WT/DS161/AB/R, WT/DS169/AB/R (Adopted Jan. 10, 2001).

14 Consolidated Versions of the Treaty on European Union and the Treaty of the European Union, 2010 O.J. (C83) 1.

15 In the Panel proceedings, the EC emphasized that moral concern with regard to the protection of animals is expressly enshrined in its constitutional treaties. Panel Report, European Communities—Measures Prohibiting the Importation and Marketing of Seal Prod-ucts, para. 7.625, WT/DS400/R, WT/DS401/R (Adopted June 18, 2014) [hereinafter Panel Report, EC—Seal Products], (citing European Union’s first written submission, para. 585).

16 Robert Howse & Joanna Langille, Permitting Pluralism: The Seal ProductsDispute and Why the WTO Should Accept Trade Restrictions Justified by Noninstrumental Moral Values, 37 Yale J.Int’l L.367, 374 (2012).

17 Regulation (EC) No 1007/2009 of the European Parliament and of the Council of 16 September 2009 on trade in seal products (Text with EEA relevance), 2009 O.J. (L 286) 36.

18 Commission Regulation (EU) No 737/2010 of 10 August 2010 laying down detailed rules for the implementationof Regulation (EC) No 1007/2009 of the European Parliament and of the Council on trade in seal products (Text with EEA relevance). 2010 O.J. (L . 216) 1.

19 General Agreement on Tariffs and Trade 1994.

20 Appellate Body Report, United States—Import Prohibition of Certain Shrimp and Shrimp Products, supra note 12, para. 120.

21 For a commentary on the development of Article XX jurisprudence, see Stone Sweet & Mathews, supra note 6, at 153-60, and Dukgeun Ahn, Note, Environmental Disputes in the GATT/WTO: Before and After US—Shrimp Case, 20 MICH. J. INT’L L. 819 (1999).

22 See Gregory Shaffer & David Pabian, European Communities—Measures Prohibiting the Importation and Marketing of Seal Products, 109 AJIL 154 (2015).

23 Panel Report, EC—Seal Products, supra note 15, at paras. 7.408-09.

24 Id.at nn.674 & 676.

25 Id.at para. 7.409.

26 The footnote to this passage states: “We also take note of the United States’ comment that ‘while the focus must be on the responding Member’s system and scale of values, what Members other than the responding Member consider to be public morals can offer confirmation of a panel’s determination as to what constitutes a public moral within the system of the responding Member.’” Id. at n. 674.

27 Id.at paras. 7.292-95.

28 Id.at para. 7.295.

29 Appellate Body Report, EC—Seal Products, supra note 4, at para. 2.4.

30 Id.

31 Id.at para. 5.138.

32 Appellate Body Report, United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/AB/R (Adopted Apr. 20, 2005).

33 Appellate Body Report, EC—Seal Products, supra note 4, at para. 5.199.

34 See Shaffer & Pabian, supra note 22.

35 The need for general guidelines is all the more pressing given that clauses like Article XX(a) are largely devoid of legislative history (travaux préparatoires). See Steve Charnovitz, The Moral Exception in Trade Policy, 38 VA.J.INT’L L.689, 704 (1998) (“There is very little legislative history for article XX(a).”); see alsoWilliam J. Moon, Essential Security Interests in International Investment Agreements, 15J.INT’L ECON.L.481, 481-82 (2012) (discussing the absence of preparatory work in the international investment treaty context).

36 Appellate Body Report, United States—Import Prohibition of Certain Shrimp and Shrimp Products, supra note 4.

37 Alec Stone Sweet, A Cosmopolitan Legal Order: Constitutional Pluralism and Rights Adjudication in Europe, 1 J. Global Constitution- ALISM 53 (2012).

38 “In taking into account the recognition given by international instruments in the context of the United Nations and the ILO tothe interests of Inuit and indigenous communities, the Panel is mindful that these instruments are not WTO instruments and they do not set out WTO obligations per se. We are considering the content of these instruments as part of the evidence submitted by the European Union to support its position concerning the interests of Inuit and indigenous communities, not aslegal obligations of Members.” Panel Report, EC—Seal Products, supra note 15, at n. 475. 300-307