Canada’s oral presentation of the law, and the law as applied to the facts, threw no curveballs, and was a pretty clear and concise précis of its first written submission. But some of the key fault lines and tensions in Canada’s position also emerged with great clarity.
Let’s start with de facto discrimination. In the recent TBT cases, the Appellate Body held that even where there is a disparate impact on imports of like products, this may not constitute “treatment less favourable” if that impact can be exclusively attributed to a legitimate regulatory distinction. The AB punted on whether its reasoning was applicable also to “treatment no less favourable” under Article III4 or, rather, exclusively to TBT 2.1, due to the absence of an equivalent to Article XX exceptions in TBT. Canada has it that the latter reading is correct-it cites the language of the AB suggesting there are differences between National Treatment in TBT and GATT, while conveniently avoiding other language in the rulings that suggests close similarities between III:4 and TBT 2.1. If, under the GATT, the only way of saving a measure that has a disparate impact and yet is based on legitimate regulatory distinction were that the defending party must prove the applicability of an Article XX exception, then the balance between the right to regulate and trade liberalization in the GATT would be different than under TBT—contrary to the overarching principle of the jurisprudence in the TBT cases. Here’s why: GATT Article XX is a limited list of exceptions. Thus, if a disparate impact were due to a legitimate regulatory distinction not founded in one of the objectives explicitly listed in GATT Article XX, there would be no means of saving the measure as WTO-consistent. But there is no such limitation in the concept of “legitimate regulatory exception” under TBT 2.1 (and indeed in 2.2 the list of “legitimate objectives” is non-exhaustive). The effect would be that the TBT would be permissive of legitimate public policies that could not be saved under the GATT III:4/XX framework, because not enumerated in the paragraphs of Article XX. In this sense the overall respect for the principle of a similar balance in GATT and TBT can only be held to if something akin to the notion of "legitimate regulatory distinction" also is built into Article III:4.
And it is. The AB has ruled with respect to GATT II:4 that, without constituting treatment less favourable,distinctions can be drawn between like products as long as they are not based on national origin, either overtly or covertly (EC-Asbestos, para. 100). In Dominican Republic-Cigarettes, the AB posed the essential question as whether the disparate impact is a function of a design feature of the scheme that disadvantages like imported product, or extraneous factors. In the latter case, there is no violation. This jurisprudence serves the identical function of the concept of “legitimate regulatory distinction” in the case of TBT 2.1.
Apart from this, Canada’s argument is that a vast majority of Canadian seal products are commercial and therefore prohibited whereas a greater percentage of European products are of a nature that could, potentially, depending on how implemented, qualify under one of the exceptions. But the scale of the Canadian seal hunt is dictated by Canada’s own quota policies, as well as its various government programs supporting the sealing industry. Thus, the very disparate impact that Canada attributes to lack of even-handedness in the EU measure is in fact due to the policy choices of the complaining Member itself. This is hardly how Art. III:4 can have been intended to function, i.e. to allow a complaining Member to cry “less favourable treatment” based upon conditions the Member creates through its own distortions or interventions in the marketplace!
Another line of argument by Canada, with respect to whether Canada’s measures meet the EU’s level of protection, reminds me of one of Canada’s failed tactics in EC-Asbestos. Canada, while beginning with a broad-based defense of sealing as humane, then stakes its case on the notion that things have improved considerably since most of the evidence mustered by the EU was gathered. The period mentioned by Canada is five years, no accident perhaps since it was five years ago that the deliberative process occurred that led to the EU ban. Canada seems to be implicitly acknowledging that its practices were not up to snuff from the time of growing public concern about the seal hunt in the 60s through 2008 but once the EU ban was in place, or about to be put into place, it suggests it began to pull up its socks. One very plausible reading of this is that, but for the EU’s measure of about five years ago, Canada wouldn’t have even made efforts to address the glaring indifference to animal cruelty in its seal hunt. The question, analogous to EC-Asbestos, is at what point those efforts are enough to reverse the evidentiary record of decades of indifference to animal welfare and human cruelty to animals. At what point is the EU, as a matter of WTO law compelled to trust Canada, even despite the serious suspicions of its own citizens and regulators based on a long standing pattern of Canadian mistreatment or tolerance of mistreatment? In any case, the record shows pretty clearly that the pattern has not changed decisively.
To shift to “public morals”, Canada suggests that the opinion polls cited by the EU are not enough to establish that the “public morals of the EU are implicated. Canada’s reasoning is that the opinion polls indicate that the attitudes of EU citizens are based on limited knowledge of the Canadian hunt. One only wonders what Canada would say about the beliefs of Hindus in India about cows, if it were now to go on to challenge that country’s restrictions on bovine meat. Would it bring scientists to the panel hearing to “prove” that it is unreasonable for Hindus to think of cows as deserving treatment as “sacred” animals? In fact, the Appellate Body makes it very clear in US-Gambling and China-Publications that opinion polls aren’t required, nor a Habermas-type ideal-speech situation, in order for ”public morals” to be invoked. The moral views don’t have to be those of everyone in society, and the government doesn’t have to quiz the populace to determine their rationality or level of knowledge in order to enact measures based on public morals. As a human rights advocate, I might have been happy if the WTO had struck down Chinese censorship practices because they don’t result from ideal democratic deliberation, but the WTO isn’t the place for that normative move, it seems to me, on reflection. Part of Canada’s strategy is to try and read the provisions on science in SPS into GATT and TBT. Even in SPS those provisions have been interpreted by the AB in a way that gives play to real-world democracy and political choice, especially in Hormones and Hormones Suspension. But the requirements of scientific rationality aren’t even there in GATT or TBT and as the AB suggested in its Article XX analysis in EC-Asbestos, won't read them in.
Canada’s argument that labeling/certification would be a reasonably-available alternative to a ban is disingenuous in that the legal arguments Canada musters about science, rationality, and the apparent ignorance of the European demos would equally apply to any labeling/certification that satisfied the EU citizens’ (in Canada’s view, ignorant) beliefs about what is humane, and what kinds of practices or conditions assure that seals are not subject to needless cruelty.
In addition Canada runs a line of argument that was ultimately not successful (under TBT 2.2) in US-Cool and US-Tuna/Dolphin III—Canada suggests that the EU’s level of protection for its main objectives are not achieved to the extent that would justify the main measure, because of the limitations or exceptions that exist in the EU’s regime. This is like suggesting that, even though it strictly punishes murder, a country doesn’t really have a high level of protection against the taking of life because that country, based on other normative considerations, treats, for example, abortion or euthanasia, or homicide in self-defense, differently or more leniently.
This line of argument is taken even farther by Norway, suggesting that a public morals claim requires absolute consistency or generality of application of the high standard being posited as the level of protection. But consider Norway’s own evolving approach to recreational drugs like marijuana (the late Amy Winehouse, a musician whose work I greatly admire was busted there yet got off with a modest fine). As a norm, Norway’s laws suggest a high level of protection, with stiff criminal penalties in most cases-Norway also has a more lenient regime for possession of small quantities, and in a recent case an individual who brought pot into the country for which he had a doctor’s prescription was deemed by the relevant agency to have not run afoul of the law (http://www.dutch-passion.nl/en/news-and-development/norway-drug-agency-considers-import-of-cannabis-by-a-norwegian-citizen-from-a-dutch-pharmacy-as-legal/). Is this really the kind of absolute consistency that Norway was suggesting today is needed to make the defense of a high level of protection against certain perceived moral ills?
A further sophistry of Norway comes in its attempt to undermine the EU's distinction between the commercial hunting to which the main ban applies and killing of seals under the indigenous and marine mammal exceptions. Norway argues that even though the hunting itself is not commercially motivated in such cases, and there are elements of the regime aimed at insuring the exceptions are not abused by those who are commercially motivated, since some of the by-products may eventually be used in such a way as profit is made by some handler or processor. This fails as an"as such" claim because it depends on a very particular assumption as to how EU authorities might interpret the regime so as to open the door to certain profit-making activities. But my point here is a diffferent one. Killing motivated by or required by non-commercial legitimate policy objectives could result in incidental profit being made down the road by someone, without thereby making the moral calculus the same as if the hunting had been commercially motivated in the first place. Let's say a government makes an exception to its drug laws, which strictly prohibit commercial sale of certain hard drugs, to allow individuals who are registered long-term addicts to obtain those drugs legally at clinics or other regulated distribution points; the idea is that the social harm, health risks etc, created by forcing such persons to buy on the street justifies an exception Does it undermine the government's overall prohibition on commercial sale of drugs if it allows these clinics or distribution points to be operated by the private sector, rather than by non-profits or governmental agencies? Even if market mechanisms are employed at some point, it is easy to see the normative coherence of the exception in relation to the general prohibition of commercial sale of such drugs.
As I noted in my first post on today’s hearings, Norway presented two witnesses who, with some surface credibility, testified that Norway’s hunt was operated in an overwhelming humane manner in law and in practice. As a finder of fact, the panel cannot but give some weight to this testimony. But the legal issue is what does TBT require-at what point does a WTO Member have to trust another Member’s regulatory system as adequate to address its own concerns and meet its own level of protection? The answer to this question is to be found in TBT 2.7, which reads: “Members shall give positive consideration to accepting as equivalent technical regulations of other Members, even if these regulations differ from their own, provided they are satisfied that these regulations adequately fulfil the objectives of their own regulations.” In other words, there is no hard law obligation of recognition. The limit is “positive consideration” , and this is premised on whether the importing Member is “satisfied” that its objective are fulfilled. This provision is understandable, and provides an important context for interpreting other provisions of TBT and GATT invoked by the claimants in this dispute. What TBT expresses, and this is a major theme of the scholarship of my friend and co-author Kalypso Nicolaidis, is that to demand recognition of one’s own regulations as adequate, is to demand trust in the other, to put oneself in the hands of sovereign choices and determinations made elsewhere. To decree such trust as a matter of hard law, requires a larger degree of integration, including political integration than exists, or perhaps even is possible in the WTO. As already indicated by Canada itself, the EU or anyone else can’t really inspect the hunt up close without a permit from Canada, without Canada’s sovereign indulgence. Here the position is: trust but leave it to us to determine your right to verify.
A final point: In our amicus brief, Langille, Sykes and I mentioned the incredible nature of Canada’s MFN claim: Canada was arguing an MFN violation based on less favourable treatment by the EU of Greenland. The chair of the panel offered the parties a preview of the kinds of questions the panel would be asking them in the coming days, and one of them concerned the relationship of Greenland to Denmark and the EU. Greenland is not itself in the EU now but at the same time, as we note in our brief, it is part of Denmark (from an international law point of view, it goes without saying; this is not a judgment about the internal constitutional meaning of Greenland’s autonomy within the Kingdom of Denmark). The EU cannot possibly owe Greenland an obligation of MFN treatment under the WTO for several reasons; first, it is not a state (lacking one of the essential Montevideo Convention criteria, the capacity to conduct its own foreign policy); and it is not a Member of the WTO (except to the extent that it is part of Denmark, which is an EU Member, of course). If the panel were to go down the route of allowing Greenland, which from the point of view of international legal personality is not a state autonomous from Denmark, to make a claim against Denmark's own external commercial policy then what of Palestine making an MFN claim against Israel? Or a separatist government in Quebec making one against Canada itself? The only fiction that could support such a claim is that Greenland can rely on Denmark being a WTO Member to cure the fatal defect of Greenland not itself being a Member. But this implies that Denmark (i.e. Greenland) would be making a claim against its own external commercial policy. Enough already! A simpler way of dealing with this that doesn’t require plunging into the international law related to self-determination, statehood and such is to recognize quite simply that a complaint supposes a nullification and impairment of a benefit, and while that is normally assumed when there is a violation, how Canada could even suggest in principle that a nullification and impairment of a benefit to Canada occurs when the EU doesn’t provide MFN to Norway is a deep mystery. Maybe this is some kind of erga omnes partes idea (assuming that’s consistent with the nullification and impairment notion-Joost, are you there?)-but then we come back to the further detail that Greenland isn’t a party to the WTO, except in as much as it is part of Denmark, whose external commercial policy (as part of the EU) is the one being complained of!
More tomorrow-stay tuned!