In a recent on-line article, http://www.stewartlaw.com/stewartandstewart/TradeFlows/tabid/127/language/en-US/Default.aspx?udt_583_param_detail=1151,
Stewart, Drake and Menaker suggest that the reasoning of the AB on the
chapeau in Brazil-Tyres could make it difficult to justify the EU seal
products ban, given the exceptions in the EU scheme for indigenous
sealing and marine management culls. This is based on the reading that,
in Brazil-Tyres, the Appellate Body held that a measure could not be
justified under Article XX of the GATT if it contained exceptions for
purposes other than the the purpose of the measure under the paragraph
of Article XX being invoked.
Before
adopting such a reading of Brazil-Tyres one has to remember that what
the AB was interpreting was the language of arbitrary and unjustifiable
discrimination in the chapeau. It is too often forgotten that the AB
has underlined (US-Gasoline, US-Shrimp) that the disciplines of the
chapeau concern the application of the measure, not the justification of
the regulatory scheme as such under Article XX. In the case of
Brazil-Tyres, the scheme at issue was selectively enforced based on
considerations not addressed by Brazil's scheme as such, so as to allow
products from Mercosur countries. The indigenous and marine management
exceptions in the EU seal products ban are, by contrast. The way that
the exceptions are drafted is unrelated to the national origin of the
seal products. While Canada has insinuated without proving
discrimination in the application of the measure, in fact it is
presenting its claim, albeit rather inconsistently, as one of as such
violation. In any case, in Brazil-Tyres the discrimination was akin to
a de jure MFN violation-the only consideration was the national origin
of the products. Thus, the only possible justification would be under a
different framework than that of Article XX, namely that of GATT
Article XXIV, which addresses free trade areas and customs unions.
The
notion that Brazil-Tyres stands for the proposition that measures
cannot be justified under Article XX if there are exceptions for other
legitimate purposes than the main purpose of the scheme flies in the
face of many statements of panels and the AB that often measures pursue
multiple legitimate objectives, and that exceptions for various
considerations are normal and not as such suspect. The problem that
Brazil-Tyres addresses is the specific one where a legitimate scheme is
enforced in a de jure discriminatory way.
