Trade liberalisation vs public morality : can the European Union seal ban be justified under the GATT Article XX (a)?

Master Thesis


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University of Cape Town

The objective of the research is to assess the strength of a potential exception available to the EU under Article XX (a) of the GATT. This is not the first time that issues to do with animal welfare are being challenged at the WTO dispute settlement system. Animal welfare issues have been at the centre of conflicts from the times of the GATT through to the creation of the WTO. For example, in 1993 a dispute arose when the U.S. adopted a law known as the U.S. Marine Mammal Protection Act which established standards of harvesting tuna using purse seine nets to prevent the unnecessary killing of dolphins. This law entailed that if a country exporting to the U.S. did not meet the standards as specified in the law, the tuna would be embargoed. The Panel ruled against the U.S although the panel report was never adopted because under the old GATT regime, a decision could be blocked by a member state that was unhappy with the decision and the U.S. blocked its adoption. This scenario is no longer possible because under the WTO because of the negative consensus principle. Further, in 1997, under the United States Endangered Act of 1973, the U.S. imposed a ban on the importation of certain shrimp and shrimp products that were not caught using turtle excluding devices (TED)in their nets when fishing in areas where there a significant likelihood of encountering sea turtles. Although the two cases were brought under Article XX (b) exception, they are still important for the seals case because the main reason the products were banned was because the countries who adopted the bans did not subscribe to the methods used in the hunting which raised concerns in their countries. Seals have also come under contention before when in 1983 the EU banned products from ‘whitecoats’ and bluebacks’ a species of seals also known as harp and hooded seals respectively that have not yet been weaned as a result of concerns over their conservation status. The current seal dispute is therefore important for two reasons. Firstly the study is ofparticular importance because the moral exception under GATT is rarely invoked. It will be the third dispute under the GATT specifically to invoke the public morals exception and the second dispute under the WTO. So there has not been a lot of adjudication on the exception. Secondly, it is the first time that a dispute panel at the WTO is adjudicating upon a trade measure adopted for the protection of animal welfare by a Member State purely based on moral beliefs and indignation.

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