Concerns on the animal welfare aspects of the seal hunt and doubts expressed concerning the hunting methods used on seals causing avoidable distress, fear and other forms of suffering to the animal has led European Union (EU) to adopt a Regulation to impose a total ban on the trade in seal products in the EU market. This regulation applies to seal products that are produced in the EU as well as to imported products from other countries. The Regulation purposed to ensure that there are no products derived from seals found on the European market. The Regulation was published in the Official Journal on 31 October 2009, entering into force on 20 November 2009 while the ban itself entered into force on 20 August 2010.
Before proceeding further to discuss the seal dispute, it is essential to draw attention to the key features of the EC Regulation on the trade in seal products. In brief, the Regulation introduces a general ban on the trade of seal products with three exceptions. First, the placing of seal products on the market shall be allowed if the seal products are from traditional hunts carried out by Inuit and other indigenous communities which contribute to their subsistence. Second, import of seal product is allowed where it is of an occasional nature and consists exclusively of goods for the personal use of travellers or their families; furthermore the nature and quantity of such goods should not be such as to indicate that they are being imported for commercial purposes. Third, the placing of seal products in the market shall be allowed where the seal products that result from by-products of hunting regulated under national law and conducted for the sole purpose of sustainable management of marine resources on a non-profit basis and non-commercial purposes.
The ban of such imports by the EU has provoked Canada and brought about a legal challenge by the Inuit groups from Canada and Greenland. In November 2009, Canada filed a complaint against the EU measure under the WTO Dispute Settlement Understanding (DSU) which was subsequently followed by Norway. The legality of the EC Regulation was challenged on three grounds. In brief, the first argument was that the EU measures are inconsistent with EU’s obligation under the General Agreement on Tariff and Trade (GATT) of 1994 in its Article I:1, III:4 in such that it discriminates among foreign “like product”; and Article XI:1 that is imposing a ban (quantitative restriction) on the trade of seal products. Secondly, Canada argued that the EC Regulation was also inconsistent with the Agreement on Technical Barriers to Trade (TBT Agreement) in its Article 2.1, which similarly meant the discrimination among and against foreign “like product” as that of the violation under the GATT 1994. Thirdly, it was also argued that the EC Regulation was inconsistent under the Agreement on Agriculture in its Article 4.2.
In this paper, the key issues regarding the violations under GATT...