'Morality' May Not Be Enough to Justify the EU Seal Products Ban: Animal Welfare Meets International Trade Law

摘要

It is very unlikely that the DSB will find that the EU seal products ban-as currently structured-is justified under the GATT Article XX(a) General Exception for measures "necessary to protect public morals." While animal welfare polices certainly should fit under this exception, in appropriate cases, the details of this particular regulatory scheme do not comport with either the "necessity" requirement of the exception or the requirement to avoid "arbitrary and unjustifiable discrimination" imposed by the chapeau. The DSB jurisprudence shows that the lack of a distinction between inhumane and humane practices, the exclusion of trans-shipments from any controls whatsoever, and the presence of exceptions that are not narrowly tailored to the objective, will all pose significant hurdles under these requirements. Ironically, from both the free trade and animal welfare perspective, a more comprehensive and uniformly restrictive seal products ban would present fewer issues under Article XX and the EU's obligations under the WTO Agreements.