My main posts on today's session of the Seals hearing are a few hours away, but there is one particular strategem of Norway that I thought I'd comment on right away—it concerns a question that Ruti Teitel and I have written on recently, the use of the jurisprudence of one tribunal by another, which we call "Cross-Judging".
Norway invoked today the ECJ decision on the seal ban as a kind of "admission" by the EU that the objective of the ban was not public morals. The moral dimension of the European public's concern with the treatment of seals was not dealt with by the Court of Justice. This was for the reason that, as pointed out by the EU’s lead attorney, under the allocation of competences in the EU “constitution”, public morals simply does not arise as an issue.
Norway’s move trades on a confusion between the classification or characterization of a measure for the purpose of determining under what level of competence it falls in a federal system, and the characterization of its objective for purposes of WTO provisions such as TBT 2.2 and GATT XX.
Different federal systems divide competences over subject matter or policy purposes in complex ways that correspond to the written "constitutional" texts at issue, but also the twists and turns of case law over decades, if not centuries-a jurisprudential acquis where categories and semantic articulation of objectives is influenced by history, political culture, and shifting coalitions of judges on high courts.
Canada itself is a great example. For a period of time the Canadian Supreme Court found the basis for federal regulation of certain health-related products standards in the criminal law competence in the Constitution. But had Canada been involved in a GATT dispute it would legitimately have claimed under Article XX that the purpose, from a GATT point of view, was health. How a 19th century constitutional text and the words it uses to classify different areas of competence and the ways in which the courts have attempted to adapt those classifications to shifting social, technological, economic realities could not logically determine how a policy purpose is articulated under the exceptions in WTO treaties, an objective process deeply related to the object and context of the WTO Agreements in question, as the Appellate Body has indicated. The Canadian Supreme Court, in R v. Crown Zellerbach, sustained regulationof the marine environment under the "Peace, Order and Good Government" power in the Canadian constitution-that sounds like "public morals" in WTO law term (or public order in GATS). But, given their specific aims and the case law on the meaning of XX(g), measures in question clearly fall within XX(g) of the GATT not XX(a), based on a reading of those provisions that follows Vienna Convention Article 31. Just as it would be unacceptable for Canada to invoke "public morals" in the GATT because of the rubric in Canada's original 19th century constitutional provision refers to something that sounds like public morals, it would be unreasonable to insist that having justified the measure in those terms under municipal law, due to Canada's distinctive constitutional history, it would be barred from invoking XX(g) of the GATT, even though the design, structure and object of the scheme from a WTO law and jurisprudence perspective, would clearly sound in the conservation of exhaustible natural resources.
The US should also pay attention to Norway's sleight of hand here: the US courts have often sustained federal action under the commerce power where the motivation of Congress was for example the protection of civil rights or the environment-the courts nevertheless held that preventing barriers to commerce between the states was a legal basis for the measures, because they contributed to that objective. The expression "public morals" does not appear in the US Constitution; the justification for the regulation of many matters that relate to public morals in the US would have to be found in competences defined in other terms in the US Constitution and the relevant case law. Take for example internet gambling. In a series of cases before the US courts, federal regulation of gambling including internet gambling was justified under the US Constitution as aimed toward the regulation of commerce under the Commerce Clause. (United States v. Lee, 173 F.3d 809, 810-11 (11th Cir. 1999); United States v. Zizzo, 120 F.3d 1338, 1350 (7th Cir. 1997); United States v. Wall, 92 F.3d 1444, 1449 (6th Cir. 1996); United States v. Riddle, 249 F.3d 529, 537 (6th Cir. 2001); United States v. Boyd, 149 F.3d 1062, 1065-66 (10th Cir. 1998). Thanks to WikiLaw!) Perhaps because Antigua and its attorneys were not as tendentious as Norway in the Seals dispute, they did not even bother to argue that the regulation of commerce basis for the US measures under the US Constitution precluded a “public morals” purpose under the very different scheme of the WTO I n any case, in US-Gambling the panel and the Appellate Body did not feel they even needed to consider how US courts had characterized the measure in under the constitutional allocation of competences: they could have asked the US about the characterization in domestic constitutional litigation but, rightly, it was simply a non-issue.
Understandably so. It would be anomalous and contrary to the security and generality of the right to regulate contemplated in Article XX of the GATT and related TBT provisions, were a Member’s ability to make a defense of its regulations under the WTO provisions to depend on how closely the purposes it could invoke under its particular constitutional law (differing substantially from Member to Member) was calibrated with the purposes of regulation as they are classified and divided in the WTO treaties and case law. This simply denies the basic proposition of the separation of the international and internal constitutional legal orders.
It seems to me that the AB has at least acknowledged what I might call the general spirit of my remarks here in the Hormones ruling In para. 244 of its ruling, the AB pointed out that legislation in representative governments normally-I repeat for the sake of Norway’s attorney, normally-reflects multiple objectives, and the AB went on the say that the existence of such objections should not be taken as an indicator of protectionism-the objective of harmonization of regulation within the EU was fundamentally compatible with the objective of protecting the lives and health of EU citizens, and the design features resulting from combining the two in no way provided even a prima facie basis for suspecting that the measure was incoherent in a manner that pointed to protectionism.