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The WTO Seal Products Case: Doctrinal and Normative Confusion

Part of: WTO EC-Seal Products Case

Published online by Cambridge University Press:  20 January 2017

Joel Trachtman
Joel Trachtman*
Affiliation:
Fletcher School, Tufts University
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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?

Type
Symposium: WTO EC-Seal Products Case
Information
AJIL Unbound , Volume 108 , 2014 , pp. 323 - 327
Copyright
Copyright © American Society of International Law 2014

References

1 WTO Agreement, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, 1867 UNTS 154.

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

3 Agreement on Technical Barriers to Trade, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1868 UNTS 120.

4 Agreement on the Application of Sanitary and Phytosanitary Measures, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 UNTS 493.

5 See Gabrielle Marceau & Joel P. Trachtman, A Map of the World Trade Organization Law of Domestic Regulation of Goods: The Technical Barriers to Trade Agreement, the Sanitary and Phytosanitary Measures Agreement, and the General Agreement on Tariffs and Trade, 48 J. World Trade 351 (2014).

6 Vienna Convention on the Law of Treaties, May 23, 1969, 1155 UNTS 331.

7 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 Feb. 22, 2012).

8 Appellate Body Report, China—Measures Related to the Exportation of Rare Earths, Tungsten, and Molybdenum, WT/DS431/AB/R, WT/DS432/AB/R, WT/DS433/AB/R (Adopted Aug. 29, 2014).

9 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].

10 Panel Report, European Communities—Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/R, WT/DS401/R (Adopted June 18, 2014).

11 Appellate Body Report, EC—Seal Products, supra note 9, at para. 5.25.

12 Id. at para. 5. 27.

13 Id. at para. 5. 43-45.

14 Id. at para 5. 58.

15 Id. at para. 5. 68.

16 Appellate Body Report, United States—Measures Affecting the Production and Sale of Clove Cigarettes, paras. 1.80-82, WT/DS206/AB/R (Adopted Apr. 24, 2013).

17 Appellate Body Report, EC—Seal Products, supra note 9, at para. 5.101.

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

19 The Appellate Body asserts that the same things that form the basis for a regulatory distinction could also form the basis for a difference in competitive situation, but this does not mean that regulatory distinctions have any independent role. Indeed, the reason for regulation is often that the marketplace fails sufficiently to make relevant distinctions.

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

21 Appellate Body Report, United States—Certain Country of Origin Labelling (COOL) Requirements, WT/DS384/AB/R, WT/DS386/AB/R (Adopted July 23, 2012).

22 Robert E. Hudec, GATT/WTO Constraints on National Regulation: Requiem for an “Aim and Effects” Test, 32 Int’l LAW. 619 (1998).

23 Appellate Body Report, Japan—Taxes on Alcoholic Beverages, WT/DS8/AB/R. WT/DS10/AB/R, WT/DS11/AB/R (Adopted Nov. 1, 1996).

24 See Amelia Porges & Joel P. Trachtman, Robert Hudec and Domestic Regulation: The Resurrection of Aim and Effects, 37 J. World Trade 783(2003).