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.