The day began with the panel hearing from Third Parties. I had been eagerly anticipating Russia’s debut in WTO litigation but it didn’t happen. Even though Russia pursued and attained Third Party status late in the game, and was present in the room during the hearing, they stayed mute.
A predominant issue in the Third Parties hearing was whether a measure can serve multiple objectives, some of which conflict in that the achievement of one may limit the degree of fulfillment of others. Columbia Iceland and Japan suggested that a measure of this kind was incoherent, and did not have the consistency required to be considered as for the protection of public morals. A variant of this view was that a measure has to be understood in terms of a main or dominant objective (postulated in this case as animal welfare or the protection of seals), and that in order to be considered as a moral measure, whatever exceptions or limitations serve other, secondary objectives cannot lessen the fulfillment of the main one.
The view of the United States as well as the EU, by contrast, is that exceptions by their very nature usually compromise or limit the achievement of one objective in order not to sacrifice other objectives, and there is nothing in WTO law that prevents Members from pursue different legitimate objectives even though they may be in some tension, since the degree of fulfillment of one may be limited by what must be done to assure the fulfillment of others. The EU raised the example of drug laws, which often contain a general prohibition on the import of a certain drug but with exceptions for very small quantities, therapeutic uses, research, etc.
Moreover, as the United States responded when questioned by one of the panelists, there is no inherent necessity that a measure be designed in terms of a main or dominant objective, and others of lesser importance: Members have the prerogative to set their objectives and the extent they achieve them. In further questioning, the panel returned to the notion raised by the complaining parties that there is some kind of distinction between “public morals” and mere public policy choices. Clearly the panel wanted to know how to draw such a line, assuming it exists. Perhaps in light of the complainants’ questioning of EU public opinion as a basis for public morality, one of the panelists asked if public opinion should be distinguished from public morality. The question also arose whether the United States considered its own ban on seal products as based in public morality, either when it was enacted or later on. (On this specific question, the United States asked for the time to respond in writing). Generally in dealing with these kinds of questions, the United States insisted that a regulating Member is normally entitled to declare the objectives of its measure; the role of the panel is to ensure that the Member is honest or sincere in its declaration. One of the panelists pressed the United States as to the relevance of whether over WTO Members also pursue the same conception of “public morals.” The United States answered that there is some relevance in that it would be “telling” if a Member were the only one pursuing a certain moral goal, on the one hand, or on the other, if there were a kind of consensus where all Members had that goal. I take the United States to mean that in the first case there might be more concern with the possibility that the Member was not sincere in declaring its goals whereas in the latter case there would be minimal need to inquire into whether the objective is declared in good faith. An example would be that since all countries prohibit murder in general as immoral, it would be highly implausible to question a Member’s honesty in stating this as a moral objective. The United States’ stance seems to accord well with the existing panel and Appellate Body jurisprudence on “public morals” (US-Gambling; China-Publications), where the dispute settlement organs veer away from making substantive judgments as to what constitutes “public morals”, recognizing that this differs to some extent if not a significant extent from society to society (as opposed to determining the sincerity of the Member’s characterization). The question also arose as to where the conduct had to take place in order for a measure regulating it to be for the protection of public morals. The United States responded that there was no territorial limitation as such. That seems consistent with the Appellate Body jurisprudence: in Shrimp/Turtle held in paragraph 121 that Article XX, including Article XX(a), does not exclude, in principle, measures that condition imports on conduct that occurs outside the territory of the regulating Member, including the policies of other Members.
In its prepared Third Party statement, the United States made an intricate argument that a product ban as such is not a “technical regulation” and therefore not subject to TBT discipline. The US distinguished between the ban itself, which does not define or prescribe characteristics of a product, and regulations used to make the ban effective, for example prohibiting particular products from containing a banned substance (e.g. asbestos). The United States also took, for purposes of determining the scope of application of TBT, a narrow view of what is a “product-related” PPM. The United States position here deserves a careful analysis, which I will reserve for a subsequent post. In some ways, it seems to revive a tack that the EU took in Sardines and Asbestos but which was not followed by the Appellate Body. Many of the questions that the panel put to the Third Parties they were unable to answer immediately. Written responses will follow. This includes the question of whether the protection of indigenous communities is a legitimate objective within the meaning of TBT 2.2. Namibia insisted in giving its Third Party intervention in secret: what are they hiding? In its Third Party Submission, the United States makes the argument that, under Article XX of the GATT, in interpreting the concept of “necessity” the question should not be whether there is a reasonably available less trade restrictive measure able to achieve a Member’s level of protection, but rather a reasonably available alternative measure that is WTO- (or at least GATT-) consistent. One of the panelists pressed the US to explain how that approach was consistent with the language of the Appellate Body in Brazil-Tyres. The United State insisted that Article XX of GATT was different from TBT, the latter in Article 2.2 explicitly requiring a consideration of least-trade-restrictiveness.
Mexico’s Third Party statement and responses to questions were in Spanish. There was apparently no interpretation available in the public viewing room and so I will leave it Spanish-speaking bloggers to let us know what it was about. A final note: one of the panelists posed the question to Mexico of what different aspects of the EU seals regime can legitimately be covered by particular provisions of the WTO Agreements. While I can’t tell you what Mexico answered because I don’t know Spanish, the question seems to me to grasp one of the issues that Langille, Sykes and I raise in our amicus brief: there could be dimensions of the EU measure that fall under one WTO Agreement but not another (the aspect of condemnation by the EU public of what it considers “cruel” might be a moral measure of a kind that is not “technical” within the meaning of TBT, while the achievement of animal welfare, the protection of seals themselves, would).
In the afternoon, the panel moved on to questions by and to the parties. The complainants returned to their efforts to discredit the data and scientific judgments offered by the EU through its videos of the Canadian hunt, its experts, and various studies. Some of this took on the theatre of the absurd, where the panel proceeding turned into an academic colloquium: the merits of a particular study were argued by Norway to depend on it having been published in the Journal of Marine Policy as opposed to, say, the Journal of Animal Welfare. As a reality check, I found myself having to remember what the Appellate Body said in EC-Asbestos about a Member being entitled to regulate on the basis of available evidence or data, not having to seek perfect data. After all, we are not even in the territory of SPS; and the complainants seemed to inviting the panel to make de novo determinations about the weight of scientific evidence of the kind that the Appellate Body, in EC-Hormones Suspension held were too intrusive under the SPS provisions themselves.
The high point came when, after repeatedly trying to suggest that the kind of videos screened by the EU have no probative value at all in establishing the inhumane treatment of seals, Canada revealed that these very same kinds of videos are used by its own authorities to investigate and prosecute conduct that falls below even Canada’s standards for humane treatment. If they are good enough for a prosecutor’s office or a court of law in Canada, why are they not good enough for a WTO panel in Geneva?
Canada made two other interesting admissions that appear to contradict it main pleadings. After continuously insisting that what is humane or not is a matter for science and not for uniformed public opinion, Canada now said that the term “humane” had certain “subjective” qualities and that a “careful scientist” scientist would refrain from making a determination of what is “humane” or not, presumably leaving that to the value judgments of politicians or the public. Finally, in response to a question by the Chair of the panel, Canada affirmed that protection of indigenous communities is a legitimate objective under TBT 2.2. This seems to raise serious questions about the viability of Canada’s assertion in its GATT Article III:4 pleadings that whether they are indigenous should be irrelevant to the way that seal products are treated. Since in EC-Asbestos and Dominican Republic-Cigarettes, the Appellate Body has held that distinctions may be drawn between like products if they are not of a protectionist kind, now that Canada has suggested that protection of indigenous communities is a legitimate objective, it will have a hard task to answer why what is a legitimate objective under TBT 2.2 cannot also be a basis for a legitimate distinction between otherwise like products under III:4, of the kind the Appellate Body viewed as permissible in EC-Asbestos paragraph 100. Instead, Canada will probably revert to its theory of de facto discrimination, which pretends that the Appellate Body never said what it did in EC-Asbestos and Dominican Republic-Cigarettes.
But are indigenous seal products really “like” Canadian commercial sealing products? A line of questioning by the panel toward the end of the afternoon suggests that it may not be satisfied by what the parties have presented in their pleadings so far about the nature of the market for seal products and their end uses. Canada’s first written submission lacks a detailed, differentiated analysis of consumer tastes and habits, and provides only the sketchiest treatment of end-uses. Under questioning from the panel, Norway finally disaggregated the various different end uses, and the different types of consumers for seal products. If I understood Norway well, indigenous seal products are much more likely to have as an end use, Norway food for aboriginal communities themselves than, say, adorning a Scotsman’s kilt. Clearly the panel is seeking more of the kind of data that would allow it to do the careful examination of consumer tastes and preferences and end uses that the Appellate Body requires in order to determine the nature and extent of the competitive relationship between particular products, i.e. whether and which products are “like.” One of the panelists was intrigued by the apparent fact that Canada kept hunting large numbers of seals while its market was dwindling. Here is where what the government does to prop up the industry can help in an expanantion.
I’ll be doing one follow-up post on a few of the other issues that came up yesterday afternoon, but I’ll have to leave it to others to blog on today’s sessions, as I’m off the EUI to talk about the TBT cases this morning.One last note, though: the complainants appear obsessed with the personal use exception under the EU scheme. This allows travelers to bring into the EU seal products that they have legally purchased elsewhere as personal possessions. While I understand, though don't agree, with the complainants' arguments concerning the other exceptions affecting competitive opportunities for their products, here I am truly baffled, as the travellers' exception allows people to bring these products as personal items from anywhere they acquire them where seal products are legal. As the EU suggested, this exception just responds to the nuisance, and in some cases unfairness, of enforcing the law against a small number of individuals, who might not even be aware when they buy the item that it is contraband in the EU.