Julien Chaisse and Xinjie Luan analyze and discuss the WTO dispute on the EU’s seal import ban

In their article, Julien Chaisse and Xinjie Luan analyze and critically discuss the WTO dispute on the EU’s seal import ban, under the Seal Ban Regulation (SBR), from a law and economics perspective, and they consider the wider implications of the concept of “public morals” and how to protect it in the best way possible at international level. In particular, the Authors firstly present Canada’s specific complaints and explore the differences in terms of legal reasoning between Canada and the EU. They then reflect on the concept of “public morals,” and finally they consider, the differences between the risk assessment mechanisms contained in the Agreement on Technical Barriers to Trade and the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement). Technically, Canada requested the Panel to decide whether the EU’s SBR conflicts with the principles of Most Favoured National (MFN) treatment, national treatment, or the elimination of quantitative restrictions (according to General Agreement Tariffs and Trade, Articles I, III, and XI; Technical Barriers Trade, Article 2.1, and AoA, Article 4.2.) Predictably, the Canadian complaint avoids the issue of the cruelty involved in hunting seals. This issue, however, is at the heart of the EU’s concerns and was the main motivation for its decision to introduce the SBR. Politically speaking, by banning the import of Canadian seal products, the EU seeks to demonstrate its distaste for the cruel methods used in commercial seal hunting in Canada. The SBR represents an important first step by the EU towards the ultimate goal of the elimination of large-scale commercial seal hunting. Undoubtedly, the main goal of the EU’s SBR is the protection of public morals, including animal welfare. Indeed, the GATT makes it possible for a country to impose quantitative restrictions on trade for “protecting public morals” and/or “protecting human, animal or plant life or health”. What it is worth to be emphasized is that in order to justify the sealing ban on the grounds of the protection of public morals and animal welfare, it must be shown that the total bans are all “necessary” to achieve the protection goals, which is probably not the case here. From this perspective, the EU position lacks an objective rationale that is required to justify the ban (for example, a labeling system might offer an alternative to an outright ban, and it would probably be “less offensive” in the eyes of the WTO Dispute Settlement Body). Overall, the dispute between the EU and Canada on the banning of seal products deals with a complex issue of risk assessment. As it is pointed out, the EU is unlikely to prevail in the dispute with Canada.