Mugraby, Zaoui, and the Inuit Tapiriit Kanatami Cases

agreement may have negative human rights impacts or impacts on the right to self-determination. To determine whether facts give rise to doubt, the General Court reviews differ-ent sources of information, including an NGO report about the human rights situation in Western Saharah. It is therefore important how much publicity an issue has gained.⁷⁷⁴ This indirectly strengthens the role of, inter alia, UN and civil society human rights reporting: the more public attention a human rights issue gains, the more likely it is that the EU institutions must examine these issues before approving an international agreement. The General Court and the Advocate General also define the scope of the extraterritorial duties which include human rights as policy objectives and, to a certain extent, arguably also as entitlements: as policy objectives, EU institu-tions must, first of all, exercise their discretion properly and take human rights impacts carefully and impartially into account.⁷⁷⁵ In addition, EU institutions must “before concluding internation-al agreements, […] ensure compliance” (emphasis added)”⁷⁷⁶ with jus cogens and erga omnes ob-ligations, which include “the principles and rules concerning the basic rights of the human per-son”.⁷⁷⁷ As the EU institutions already failed to comply with the first requirement, the General Court did not have to address rights as entitlements in more detail.

question that the EU can, in general, be held responsible for acts or omissions resulting in human rights violations in third countries.⁷⁸¹

In Zaoui, the applicant brought an action against the EU for non-contractual liability. His wife was killed in a Hamas terrorist attack, and he found the cause in the Palestinian educational sys-tem in general and the manuals and school books which in particular incited racial hatred. The applicant is convinced of the EU’s liability because it provides, since 1994, funds to the Palestini-an Authority which in part serve for the education system. The action was dismissed because the applicant could not prove, to the satisfaction of the European Courts, the causality between the funding of the Palestinian education system and the specific attack.⁷⁸² Still, it did again not deny that the EU has, in principle, human rights obligations towards residents in third countries,⁷⁸³ and that these distant strangers can raise human rights claims vis-à-vis the EU.

The Inuit Tapiriit Kanatami decisions concern a series of cases decided by the General Court and the Court of Justice which are of particular relevance for judicial review of decisions that affect human rights extraterritorially. The WTO dispute settlement bodies also dealt with this subject matter. Therefore, it is worth to have a closer look not only at the findings but also at the under-lying facts of these Inuit cases.

In 2009, the EU restricted the trade in seal products.⁷⁸⁴ The placing of seal products on the EU market “shall be allowed only where the seal products result from hunts traditionally conducted by Inuit and other indigenous communities and contribute to their subsistence.”⁷⁸⁵ Two other exceptions for import regard cases where “it is of an occasional nature and consists exclusively of goods for the personal use of travelers or their families” and “where the seal products result from by-products of hunting that is regulated by national law and conducted for the sole pur-pose of the sustainable management of marine resources.”⁷⁸⁶ This Basic Regulation was imple-mented by Commission Regulation (EU) No 737/2010 (both Regulations are referred to as the

“EU seal regime”). This Commission Regulation further concretized the Inuit-exemption and defined the relevant conditions that must be met.⁷⁸⁷ This restriction was basically criticized by the applicants as not striking a fair balance between animal welfare and the protection of indig-enous rights, and as violating the applicants’ fundamental and human rights. Inter alia, they

781 Bartels, ‘The EU’s Human Rights Obligations in Relation to Policies with Extraterritorial Effects’ (above, n. 12), p. 1076.

782 ECJ, Order of 14 October 2004, C-288/03 P, Zaoui (2004), para 14.

783 Bartels, ‘The EU’s Human Rights Obligations in Relation to Policies with Extraterritorial Effects’ (above, n. 12), p. 1076.

784 European Union, Regulation (EC) No 1007/2009 of the European Parliament and of the Council on Trade in Seal Products.

785 Ibid., Art. 3 (1).

786 Ibid., Art. 3 (2).

787 These conditions are: (a) seal hunts conducted by Inuit or other indigenous communities which have a tradition of seal hunting in the community and in the geographical region; (b) seal hunts the products of which are at least partly used, consumed or processed within the communities according to their tradi-tions, and (c) seal hunts which contribute to the subsistence of the community. European Commission, Regulation (EU) 737/2010 laying down detailed rules for the implementation of Regulation (EC) No 1007/2009 of the European Parliament and of the Council on Trade in Seal Products, Art. 3 (1).

complained that, instead of establishing an effective exemption for the Inuits, the Commission blocked any placing of seal products on the Union market.⁷⁸⁸

A Canadian NGO, Inuit Tapiriit Kanatami, and other applicants established or residing mainly in Canada and Norway, brought first an action for annulment against the Basic Regulation (in the following: Inuit-I). The General Court and the ECJ held that the Basic Regulation is a legislative and thus not a “regulatory act” under Art. 263(4) 3^rd limb TFEU. As the applicants were either not directly or not individually concerned, the action was dismissed with legal effect. The appli-cants later brought another action against the Implementing Commission Regulation (in the fol-lowing: Inuit-II)⁷⁸⁹. While both actions and the respective appeals were dismissed, the EU courts nevertheless made important statements on standing (mainly in Inuit-I, see section 10.2.3.1.2) and on potentially relevant grounds for review in the context of extraterritorial human rights impacts (mainly in Inuit-II). This section focuses on these judgments and reasons in the Inuit-II cases.

The decisions of the General Court and the ECJ, at least implicitly, confirm that distant strangers are holders of human rights which they can assert against the EU.⁷⁹⁰ However, in the particular case, the courts did not conclude that the applicants’ fundamental or human rights were actually violated by the Commission Regulation. In Inuit-II, the General Court did not rule on the admis-sibility as it regarded the claims to be wholly unfounded.⁷⁹¹ The applicants claimed a breach of their rights to property and their right to be heard during the preparation of the two Regula-tions. The first claim was rejected as the “guarantees accorded by the right to property cannot be extended to protect mere commercial interests or opportunities, the uncertainties of which are part of the very essence of economic activity”.⁷⁹² The General Court also rejected the applicants’

claim that their right to be heard was violated: First, insofar as such a right exists as a procedural safeguard against unjustified infringements of the right to property, this does not apply here as property rights are not at stake. Second, such a right cannot stem directly from Article 19 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) as this is merely a declaration and not binding under international law. Third, other consultation requirements only exist insofar as they are established under the Treaty.⁷⁹³ The General Court also remarked that “the Union legislature did take account of the particular situation of Inuit communities as referred to in the United Nations Declaration on the Rights of Indigenous Peoples”.⁷⁹⁴ It remains

788 General Court, Judgment of 25 April 2013, T-526/10, Inuit Tapiriit Kanatami II, para 120 et seq.; ECJ, Judgment of 3 September 2015, C-398/13 P, Inuit Tapiriit Kanatami II.

789 Similarly, different states brought actions against the EU to the WTO dispute settlement mechanisms;

due to the different constellations, the WTO case, which also demonstrates the relevance of impact as-sessments, will be discussed later at a different stage (see chapters 9 and 10.2).

790 This is in line with the abovementioned case-law. A different question is whether distant strangers can, under court procedure law, also bring an action for annulment if their human rights are infringed. This is, as will be discussed in chapter 10, usually difficult due to the “concern” requirement in Article 264 (4) TFEU: under established EU case law, applicants must show that the challenged act affects the applicants’

legal and not only the factual situation: General Court, Order of 6 September 2011, T-18/10, Inuit Tapiriit Kanatami I, para 75; appeal: ECJ, Judgment of 3 October 2013, C-583/11 P, Inuit Tapiriit Kanatami I.

791 General Court, Inuit Tapiriit Kanatami II, T-526/10 (above, n. 788), para 21.

792 Ibid., para 109.

793 Ibid., para 110–113. To be on the safe side, the Court remarks that the Commission actually did consult Inuit communities “broadly and repeatedly” in preparation of both Regulations: Ibid., para 114.

794 Ibid., para 115. At the same time, the General Court pointed out that the “Inuit communities were broadly and repeatedly consulted in preparation for both the basic regulation”.

a little unclear whether this is purely an auxiliary argument, or whether the Court would have, like the General Court did in Front Polisario (see above), invalidated the contested regulation for abuse of discretion had the Union legislature failed to consider these impacts.

The judgment was appealed on different grounds. Regarding the alleged human rights violations, the appellants argued that not only the right to property but also the right to conduct business is protected under EU law, and that the applicants have economic interests protected according-ly.⁷⁹⁵ Second, they complain that the General Court erred in its evaluation of Article 19 UNDRIP:

while the Declaration itself was not binding, Article 19 UNDRIP lays down a rule of customary international law – namely the obligation to consult and strive for prior consent of indigenous communities – which is as such binding on the EU.⁷⁹⁶

The ECJ rejected both claims: the appellants did not plead before the General Court “either any breach of the freedom to conduct a business laid down in Article 16 of the Charter or any breach of a rule of customary international law resulting from Article 19 of the UNDRIP”.⁷⁹⁷ Moreover, the ECJ confirmed the General Court’s judgment insofar as it found no breach of the right to property as it does not protect mere commercial interests or opportunities.⁷⁹⁸ The ECJ thus used an easy-exit strategy: it dismissed the easily rejectable claim on the merits (an alleged violation of property rights) and the more complicated claims as inadmissible at the appeal stage – the violation of the right to conduct business and of a customary international law obligation to con-sult indigenous peoples. However, the judgements are relevant for what they did not say: neither the General Court nor the ECJ doubted that EU fundamental and human rights apply, in general, extraterritorially, and that distant strangers residing in third states can, in general, invoke a vio-lation of fundamental or human rights in cases where impacts of a trade policy are felt abroad.

4.7.4.4 EU Case Law, Theories of Extraterritorial Applications and the Consequences for