The primary research question o f this thesis is: does the EU achieve a fair balance between the protection o f seals and the rights o f indigenous peoples to engage in their traditional economic activities? In its impact assessment accompanying the proposal for the EU seal products legislation, the Commission proposed measures which would ‘maintain the balance between the animal welfare, economic and social dimensions’. *®® This implies that the EU recognised the need to ensure that any potential restrictions on economic activities arising from this legislation should be justified.
Since the Preamble to the Basic Regulation explicitly recognises the ‘fundamental economic and social interests o f Inuit communities engaged in the hunting o f seals’, the Commission’s statement concerning the maintaining balance ‘between the animal welfare, economic and social dimensions’
could be interpreted as a need to balance animal welfare with the ‘economic and social interests’
o f Inuit. In fact, in its second submission to the WTO the EU argued that the seal products legislation ‘balances the welfare o f seals with the interests o f Inuit’ *®* because it contains a specific exemption for their benefit.
*0* U N D RIP, art 20(1).
*®'*ch 3 s 3.4.1.
*°* ibid
*°^ C om m ission, ‘Proposal for a R egulation o f the European Parliam ent and o f the C ouncil concerning trade in seal p roducts’ CO M (2008) 469 final, 11.
*®* E U ’s second subm ission to the W TO (n 68) para 208.
To assess how ‘the welfare o f seals’ and ‘the interests o f Inuit’ may be balanced fairly, this thesis examines what is meant by the principle o f ‘fair balance’ in the context o f legal tests balancing human rights and societal interests known as ‘balancing tests’ or ‘tests o f justification’.
Many balancing tests have been developed by judiciary all across the world, including in the United States (US), Israel, Canada and Germany.*®* The underlying principle o f these tests is that in democratic societies, which are subject to the rule o f law, national authorities need to balance the general interest o f a wider community against the fundamental human rights o f individuals.*®® If individuals believe that their rights have been unjustifiably infi*inged by government decisions, the courts must be able to reach a determination o f this.**® A central element in any balancing test is the ‘limitation clause’, which determines that human rights may be limited only i f they satisfy certain conditions, including the principle o f proportionality.***
At the regional level, balancing tests are used most notably by the CJEU and the European Court o f Human Rights (ECtHR). The latter court has used the fair balance principle extensively when applying the provisions o f the Convention for the Protection o f Human Rights and Fundamental Freedoms*** (ECHR) across a wide variety o f situations.*** According to its case-law,
‘inherent in the whole o f the... [ECHR] is a search for a fair balance between the demands o f the general interest o f the community and the requirements o f the protection o f the individual’s fundamental rights’.**'* Outside the human rights context, other international bodies, such as the
*®* Suzie N avot, ‘Israel: C reating a constitution: the use o f foreign precedents by the Suprem e C ourt (11 9 4 - 20 1 0 )’ in T ania G roppi and M arie-C laire Ponthoreau (eds), The Use o f Foreign Precedents by Constitutional Judges (H art 2013) 132-134.
*°® See eg A lastair M ow bray, ‘A study o f th e principle o f fair balance in the jurisprudence o f the E uropean C ourt o f H um an R ights’ (2010) 10(2) H um an R ights L aw R eview 289 doi:10.1093/hrlr/ngq006.
**° ibid
*** N avot (n 108) 132.
*** ETS 5; 213 U N TS 221.
*** eg ECH R , art 8 (right to respect fo r private and fam ily life).
**'* Soering v United Kingdom A 161 (1989) 11 EH R R 439, para 89. See also N v United Kingdom 47 E H R R 39, para 44.
dispute settlement bodies o f the WTO, use one form o f weighing and balancing test (known as the
‘necessity test’) in the context o f multilateral trade agreements.***
Although the WTO’s necessity test does not concern the balancing o f human rights per se, it involves balancing economic and non-economic principles, from both within and outside the WTO legal order, against each other.**® Therefore, the principle o f proportionality plays a crucial role in guiding this process within the WTO.*** In fact, certain rules within the WTO legal system can be considered to strike a balance between the ‘right’ o f a WTO Member to take measures necessary for certain policy objectives and ‘the duty o f that same Member to respect the treaty rights o f the other Members’.*** Thus, the balancing test implies that in the context o f the WTO, the right o f a Member to enact measures for the protection o f non-trade interests must be balanced with the rights o f other Members under the WTO agreements. Whether these ‘rights’ were sufficiently balanced in EC-Seal Products, i s the subject o f Chapter 7.
1.3.1 Justificatory tests
In order to assess what the concept o f ‘fair balance’ may mean in the context o f the EU legislation on seal products, three justificatory tests were considered relevant for the purposes o f this thesis. These are the tests employed by (i) the CJEU (the ‘proportionality test’),**® (ii) the Supreme Court o f Canada (the ^Sparrow test’)*** and (iii) the WTO dispute settlement bodies (the
‘necessity test’).*** These tests are helpful in evaluating what may be an acceptable restriction on Inuit economic rights under the EU seal products legislation. The proportionality test is considered
*'* ch 7 ss 7.2.1.3 and 7.3.2.
**^ M ads A ndenas and Stefan Zleptnig, ‘Proportionality: W T O law in com parative p erspective’ (2007) 42(3) Texas International L aw Journal 3 7 1 ,3 7 5 .
*** ibid
*** ch 7 s 7.3.3.
**® EC-Seal Products (n 69).
**° ch 6 s 6.4.
*** ch 4 s 4.4.1.
*** ch 7 ss 7.2.1.3 and 7.3.2.
appropriate for the purposes o f this thesis because it balances the objectives o f legislative and administrative measures against the interests, rights and freedoms o f private parties recognised under EU law. As noted in section 1.2.2, the Inuit o f Canada and Greenland have challenged the EU seal products legislation before the CJEU. It appears that in ITK v Commissionf^^ the European General Court (EGC) may have used the proportionality test in order to assess whether the EU institutions struck fair balance between the rights o f Inuit and the objectives o f the EU legislation.**'*
The second test, the Sparrow test, is appropriate for the purposes o f this thesis because the Supreme Court o f Canada developed this test in 1990 to govern the restriction o f Canadian indigenous peoples’ rights.*** The Sparrow test clarifies how the rights o f Inuit may be restricted due to public safety, conservation or animal welfare concerns under the Canadian legal system. It is considered appropriate for this thesis because very little relevant case law concerning indigenous peoples’ rights exists before the ECtHR**® or the national courts o f the EU Member States.
Additionally, the ECtHR’s jurisdiction is limited to those Arctic indigenous peoples who inhabit the jurisdictions o f the 47 State parties o f the ECtHR, including Kalaallit, the Sami o f Nordic countries and various indigenous peoples living in Russia and the Russian Federation.*** Although the Human Rights Committee’s decisions under Article 27 ICCPR, discussed briefly in Chapter 3, are helpful for assessing the scope o f indigenous peoples’ rights under international law, the Committee’s decisions do not specifically concern the rights o f Inuit, but the case law consists o f complainants made by indigenous peoples world-wide.***
The third test, the ‘necessity test’ o f the WTO dispute settlement bodies was chosen for the purposes o f this thesis because the EU seal products legislation is subject to the dispute settlement
*** Case T-526/10 ITK v Commission (EG C, 25 A pril 2013).
* * '* ch 6 s6 .1 .
*** c h 4 s 4.4.1.
**^ A lthough several com plainants have been heard by the E CtH R , only a m inority o f such cases have survived to th e m erits stage. F o r a general overview o f the suitability o f this court for resolving disputes relating A rctic indigenous peoples’ rights, see K oivurova (n 100).
*** ibid
*** See eg B ibliography at the end o f this thesis. D ecisions o f th e U N H um an R ights C om m ittee.
proceedings before the WTO. The dispute settlement Panel utilised this test in its decision in EC- Seal Products^^^ to assess whether the EU’s objective o f the protection o f public moral concerns on animal welfare was ‘necessary’ and thus, consistent with the EU’s obligations under the WTO agreements.**®
In this thesis, it is argued that the balance is fair if the EU legislation and exemptions result in the following things;
• the EU recognises and respects the rights o f indigenous peoples under the UN Declaration and other relevant provisions o f international law;***
• the restriction on the right o f Inuit to engage in the commercial exploitation o f seal products is not disproportionate;***
• the legislation results in improved animal welfare outside the EU;***
• the Inuit exemption is consistent with the EU ’s obligations under the WTO Agreements in that it does not discriminate against products o f Inuit origin from Canada as opposed to those from Greenland.**"*
Whether the EU legislation respects indigenous peoples’ rights under the UN Declaration and other relevant provisions o f international law is investigated specifically in Chapters 3 and 7.***
Chapter 6 investigates whether the institutions respect the right o f Inuit to engage in the commercial exploitation o f seal products under the ECHR, or the Charter o f Fundamental Rights o f the
**® EC-Seal Products (n 69).
**® ch7ss 7.2.1.3 and 7.3.3.
*** See ch 3 ss 3.4.1-3.4.3; ch 8 s 8.2. In addition to the right to engage in econom ic activities under A rticle 20 U N D R IP, Inuit have argued that the E U m ust respect th eir right to participate and b e consulted in m atters relating to th eir rights under arts 18 and 19 U N D RIP as w ell as to guarantee that they as indigenous peoples are not deprived from ju d icial protection before the C JEU . See also Case C -398/13 P ITK v Commission [2013] O J C 274/11 (appeal pending before the ECJ).
*** ch 6 s 6.2.-6.4.1; ch 8 s 8.3.
* * * c h 7 s 7 .2 .1 .2 .; c h 8 s 8 .4 .
**"* ch 7 s 1 .2 2 3 ; ch 8 s 8.5.
*** ch 3 ss 3.4.1-3.5. See also ch 8 s 8.2.
European Union*^^ under which the CJBU decided to address their c l a i m s . W h e t h e r the EU legislation results in improved animal welfare outside the EU is explored in Chapters 2 and 7.^^^
Chapters 4-5 and 7 assess whether the legislation results in an adverse impact on Inuit o f Canada as opposed to Inuit o f Greenland.*^^ Additionally, Chapters 4 and 7 help in assessing whether the restrictions on Inuit market access under the seal products regulation are proportionate in the light o f restrictions, which have been deemed acceptable by the Supreme Court o f Canada.