Before evaluating whether it is appropriate for the EU to take decisions concerning the Arctic indigenous peoples inhabiting the regions outside the EU on the grounds o f animal welfare, it is important to investigate the EU’s role o f a global leader and ethical consumer in a range o f societal and environmental issues. This is relevant for the purposes o f this thesis because the EU’s unilateral adoption o f the seal products legislation raises questions whether the Panel’s decision in EC-Seal Products^^ authorised the globalisation o f the EU’s regulatory standards when it held that
SW D (2012) 182 final, para 1.2. F or instance, the opening up o f new shipping routes from the A tlantic and Pacific O ceans through the A rctic O cean m ay have som e negative im pacts on the A rctic even the positive im pacts are num erous. T he new shipping routes could, fo r instance, considerably shorten current sea journeys, save energy, reduce em issions, prom ote trade and dim inish pressure on the m ain trans-continental navigation channels, ibid para 2.3
ibid para 1.2.
ibid
*^5 ch 3 s 3.6.1.
E C -Seal Products (n 69).
the EU legislation was ‘necessary’ to protect public morals; whether this was appropriate, and did it ensure that the decision in EC-Seal Products^^’’ will not encourage other countries to adopt measures, which can be argued to contribute to a ‘disguised protectionism or regulatory imperialism’,*^* but are ‘shielded’ by the public morals defence.*^^
The seal products legislation demonstrates that the EU can be seen to influence jurisdictions outside its borders by imposing sustainability criteria or certification requirements on various products imported into its markets.’^** By doing so, the EU attempts to influence behaviour in its trading partners by adopting measures that aim to affect various types o f environmental, social and economic consequences o f activities, which the EU considers harmful despite the fact that they are confined to certain area outside the EU’s jurisdictions.*’* Indeed, the EU has adopted a number o f similar measures, which rely on the dynamics o f international trade to influence developments at the global level and to push for compliance with the EU’s standards. In addition to seal products, the EU has addressed a wide range o f issues during the past decade, including chemical safety;*’^
biofuels;*’* safety and security o f shipping and the prevention o f marine pollution;*’'* trade in
*^’ E C-Seal Products (n 69).
See eg E m anuela O rlando, ‘T he evolution o f E U policy and law in the environm ental field: achievem ents and current challenges’ T ransw orld w orking paper 21, 10 (A pril 2013)
< w w w .iai.it/pdfiTransw orld/TW _W P_21.pdf> accessed 12 N ovem ber 2013.
*^^ See eg R obert H ow se, Joanna Langille and K atie Sykes, ‘A nim al W elfare, public m orals and trade: the W TO Panel R eport in EC-Seal Products’’ A m erican Society o f International L aw 18(2) (29 January 2014)
< w w w .asil.org/insights/volum e/18/issue/2/anim al-w elfare-public-m orals-and-trade-w to-panel-report-ec-
% E2% 80% 93-seal-products> accessed 4 M arch 2014.
*’° s 2 .3 .
*’ * See eg L aurens A nkersm it, Jessice C L aw rence and G areth T D avies, ‘D iverging EU and W TO perspectives on extraterritorial process regulation’ (2012) M innesota J Inti L, 11-12
< http://ssm .com /abstract=2007098> accessed 28 July 2013.
*” R egulation N o 1907/2006 o f 18 D ecem ber 2006 concerning the R egistration, Evaluation, A uthorisation and R estriction o f C hem icals (R E A C H )... [2006] O J L 396/1.
D irective 2009/28/EC o f the E uropean Parliam ent and o f the C ouncil o f 23 A pril 2009 o n the prom otion o f the use o f energy from renew able sources [2009] O J L 140/16.
*’'* eg in the context o f International M aritim e O rganisation. See Judith van L eeuw en and K ristine K ern, ‘The external dim ension o f E uropean U nion m arine governance: institutional interplay betw een the EU and the International M aritim e O rganization’ (2013) 13(1) G lobal Environm ental P olitics 69.
illegally logged timber;*’* toxic wastes; and waste electronic equipment.*’* Additionally, the extension o f the EU ’s Emission Trading Scheme to the aviation sector is one o f the EU ’s most visible attempts to unilaterally influence the policies and norms on climate change at the global level.*”
It has been suggested that due to its own strict environmental policies the EU has a strong incentive to export its environmental standards to other jurisdictions.*’* Indeed, through the adoption o f various trade measures the EU has moved from addressing these issues at the multilateral level to bilateral or even unilateral level. This can be argued to result from slow progress in many policy areas at the multilateral fora.*’^ However, the EU’s unilateral action nevertheless raises questions whether and to what extent this is an effective way o f dealing with global problems.**® It further raises questions as to what extent a unilaterally driven globalisation o f the EU’s standards is an appropriate objective underlying genuine societal and environmental interests; and ultimately, how it can be ensured that the EU ’s actions do not encourage other jurisdictions to measures which contribute to a disguised protectionism or regulatory
imperialism.***
Although it has been suggested that the EU’s role as a global leader in international environmental issues stems from strong environmental policies adopted by the EU institutions, it
*’* See C ouncil R egulation (EC) N o 2173/2005 o f 20 D ecem ber 2005 on the establishm ent o f a F L EG T licensing schem e fo r im ports o f tim ber into the European C om m unity [2005] O J L347/1; C om m ission R egulation (EC) N o 1024/2008 o f 17 O ctober 2008 laying dow n detailed m easures fo r th e im plem entation o f C ouncil R egulation (EC) N o 2173/2005 on the establishm ent o f a FL EG T licensing schem e for im ports o f tim ber into the European C om m unity [2008] OJ L 2 77/23.
*’* See eg Ludw ig K ram er, ‘Seal killing, the Inuit and European U nion L aw ’ (2012) 21 (3) R EC IEL 291, 295.
*” See eg O rlando (n 168) 10.
*’^ See W ade Jacoby and Sophie M eunier, ‘E urope and the m anagem ent o f globalization’ (2010) 17(3) Journal o f E uropean Public Policy 299, 309 <http://dx.doi.org/10.1080/13501761003662107> accessed 23 M arch 2013.
*’^ T he m eagre results o f R io+20 in 2012 could be argued to dem onstrate that States have little political will to address issues w here trade rules stand in conflict w ith environm ental rules at the international level. See K ram er, ‘Seal killing, the Inuit and E uropean U nion L aw ’ (n 176) 294.
*^® See eg O rlando (n 168) 10.
ibid
appears that the matter is more complex since different actors within the EU have contributed to the shaping and development o f the EU ’s environmental policies. The CJEU has certainly held an influential role in the development and consolidation o f the early EU environmental policy and legitimising EU internal and external action in the environmental field in the absence o f an express competence in the Treaty.**’ The EU courts’ 1980s case law remarkably established that the protection o f the environment ‘was one o f the essential objectives o f the EU ’, which may limit the free moment o f goods.***
It has been argued that by promoting green policies the institutions have increased the popularity and legitimacy o f the EU in the eyes o f citizens as this has demonstrated that in addition to promoting business interests, it also serves public interests.**"* From this point o f view it is easy to see why the institutions supported the ban on commercial seal products. However, critics also argue that despite its ‘green’ image and environmentally friendly policies, the EU has been slow in implementing its domestic environmental policies and complying with the global climate change targets under the Kyoto Protocol.*** Accordingly, these points could be argued to raise some doubts about the credibility o f the EU as a ‘green actor’.***
Additionally, according to some critics, the image o f ‘Green Europe’ stems from the
‘greenness’ o f certain individual Member States,**’ rather than the institutions. It is certainly true that due to the EU’s internal dynamics and due to the sheer number o f different interests involved, EU Member States do not always act uniformly.*** As the EU keeps expanding, there may be an
**^ See eg O rlando (n 168) 5.
*^* See eg Case 240/83 Procureur de la République v Association de défense des brûleurs d ’huiles usages [1985] E C R 531, para 13; Case 302/86 Commission v Denmark [1988] EC R -4607, paras 8-9 (D anish bottles case).
*^"* See eg R D aniel K elem en, ‘G lobalizing E uropean U nion environm ental p o licy ’ (2010) 17(3) Journal o f European Public Policy 335, 339-340 D OI: 10.1080/13501761003662065.
-*** K yoto Protocol to the U nited N ations Fram ew ork C onvention on C lim ate C hange, 10 D ec 1997, U N D oc FC CC /CP/1997/7/A dd. 1, 3 7 ILM 22 (1998)
*^* A ndrea L enschow and C arina Sprungk, ‘The m yth o f a green E u ro p e’ (2010) 48(1) JC M S 1 3 3 ,1 3 5 . See also Ludw ig K ram er, E U Environmental Law (7th edn, Sw eet and M axw ell 2011).
*” Lenschow and Sprungk (n 186) 139.
See eg A nkersm it and others (n 171) 46.
increasing discrepancy between the environmental policy commitments o f diverse Member States, Therefore, although externally the EU may be committed to multilateralism at the international level, several disputes before the WTO have demonstrated that, on occasion. Member State policies have led to a conflict with international free trade rules in disputes involving, inter alia, asbestos,**®
beef hormones,*®® genetically modified organisms*®* and most recently, seal products.*®’ Some o f these disputes are further discussed in Chapter 7. The reason for these disputes frequently is that some EU Member States argue that they have good reasons to ban trade in products that they consider objectionable.*®*
In conclusion, it can be argued that the EU has frequently taken on a leadership role in promoting multilateral environmental agreements and by engaging in efforts to ‘green’
international institutions, such as the WTO.*®"* However, frustrated by the slow progress at the multilateral fora, the EU has attempted to remedy the failures o f international negotiations by taking unilateral regulatory action. The EU’s unilateral adoption o f the seal products legislation raises questions whether the WTO authorised the globalisation o f the EU’s regulatory standards; did the Panel ensure that its decision does not trump the interests o f Canada and further it does not encourage other countries to adopt future measures, which contribute to a ‘disguised proteetionism or regulatory imperialism’,*®* but are effectively protected by the public morals defence.
189 W TO : European Communities: Measures Affecting Asbestos and Asbestos-Containing Products-Report o f the Appellate Body (5 A pril 2001) W T/D S135/A B/R (EC-Asbestos A B).
190 W TO : European Communities: European Communities-Measures Concerning Meat and Meat Products- Report o f the Appellate Body (16 January 1998) W T /SD 26/A B/R .
191 W TO : European Communities: Measures affecting the approval and marketing o f biotech products- Report o f the Panel (20 M ay 2003) W T/D S291-W T/D S293 (EC-Biotech).
*®’ EC-Seal Products (n 69).
*^* See eg A nkersm it and others (n 171) 46.
*®"* The E U is signatory to m ore than 40 m ultilateral environm ental agreem ents, and has had a prom inent role in the international clim ate change policy negotiations. L enschow and Sprungk (n 186) 139. See eg K elem en (n 184).
*^* See eg O rlando (n 168) 10.