It is easy to be depressed and disgruntled after this hearing. A panel Chair who is ignorant even of the most basic case law fundamental to the panel's own duties and jurisdiction, a Chair who manages to make a sexual and racial caricature in one breath, then a Canadian attorney who says seals are better off slaughtered in agony than dying a natural death. A panel that badgers the EU with persistantly aggressiive, sceptical and often inscrutable questions, while hardly asking anything really probing of the complainants. Every right to be enraged and dream of repeating Seattle 1999.
But as a teacher and a scholar, i have a duty to my students and my colleagues, and to my own ideal of the life of the mind, to try and take some distance and put what happened today in a broader perspective. Before I post tomorrow the blow-by-blow of today's debacle, I would like reflect in such a broader view.
I remember the late 1990s. The panel report in Shrimp/Turtle had come out and it had taken the completely anti-evnironmentalist line (like Tuna/Dolphin I) that, in essence, you could not under WTO law restrict trade to deal with an environmental problem that was not purely domestic. I had an article to be published in the Journal of World Trade about the panel, "Another Environmental Disaster in Geneva." I happened to be teaching that summer in the Academy of European Law at EUI, and so was Claus Ehlermann, at the time an Appellate Body Member. We had a lunch at Carpe Diem, between San Domenico and Fiesole. By the time the espresso came, my view of the trade and environmental issue at the WTO had changed. Claus and I avoided completely the diiscussion of the case, as he was under a strict duty as a judge not to comment on such a matter. But an hour and a half in the presence of this humane and wise being convinced me that the panel report in Shrimp/Turtle would be overturned-because I saw what kind of man Claus Ehlermann was (and is) and I knew he would never sign a judgment that would make the WTO stand for the right to destroy endangered species. After that I made the confident prediction that the AB would follow a different route on trade and environment, which led to good-natured skeptical laughter from friends like Arthur Appleton. Ultimately, though, my intuitions after that lunch would prove to be right.
Fast forwarding to today, despite all the bluster and anti-animal welfare rhetoric by Canada in particular, it is remarkable that no one questioned the right of the EU to exclude from its markets, products from seals killed in an inhumane manner. Norway even conceded that the EU could have standards that excluded products from seals killed with methods permitted in Norway. In light of the history of the trade and environment debate this is not a trivial common ground.
The second big picture observation, related to the first, is that the greatest bulk of the argument time of Canada and Norway focused on the exceptions in the EU ban-indigenous, marine management, personal, use, transit (the latter two or even three utterly trivial in economic impact). What is the story here?
The perspective we have to bear in mind is the recently-decided TBT trilogy, US-Cloves, US-COOL, and US-Tuna/Dolphin. One of the common features of the AB rulings in all three cases is that the AB reversed all findings of violations of the panel other than those that could be characterized as "underinclusiveness". In US-Cloves, clove cigarettes were banned, but not menthol, which on the basis of deference to bad fact finding by the panel, the AB considered to pose the same problems in terms of the public health objective, but not different public health challenges in implementing a ban (wrong, but the panel is the culprit). In US-COOL, the AB held that the only violation of TBT was that the paperwork burden on operators was not needed to insure the integrity of the information actually required to be placed on the label. In US-Tuna/Dolphin II, the AB held that there was underinclusvieness, because the US government scheme for verifying the integrity of the label did nothing to adress the risk of dolphin-unsafe fishing outside the eastern tropical pacific. In all these cases, the AB gave the respondent the opportunity to comply by extending its regulation, to cure the underinclusiveness. And in two of the three cases (COOL and Tuna/Dolphin) the US has proposed just that.
There is always a risk that a state will not achieve the political consensus to extend, and thus would be put in the position of retracting.-or simply being subject to suspension of concessions (which would be not large in the case of Seal Products). But, in fact,, how hard would it be for Europe, if it had to, to eliminate the marine management exception to the ban of seal products? There are only a small number of seals involved-nuisance seals-and those products could easily be used for products that could be destined for non-EU markets. At least one panel member, the Australian, seemed to think the indigenous exception had a "persuasive basis." So eliminating the marine management exception (and the personal use exception ) would largely solve the concern with exceptions, at least one of the panelist's concerns. And hard to imagine that it would in any way detract from seal welfare. Of course, doing so won't give Canada or Norway any additional competitive opportunities, but that just shows why the effects, rather than the rhetoric, of the challenge to the expections is not really anti-seal. Indeed,a panel ruling faulting the EU measure for underinclusiveness (i.e. impugning the sustainable marine management and personal use exceptions) would give animal welfare activists valuable support in trying to resist what might be regarded as loopholes or gaps in proposed bans on seal products that may be on the horizon in other WTO Members.
A similar observation could be made about what seemed to be the obsession of the Chair but even more so the Australian panelist about the fact that the EU had not acted to impose animal welfare standards even where the product was permitted under an exception. Playing philosopher-kings and philosopher-queens these panelists appeared to be thinking that a perfectly rational public-morals based measure would require that animal welfare be addressed even within the exceptions. The EU made a common-sense, real-world response: there is a tension between the conditions of the traditional aboriginal hunt and an effective scheme to protect animal welfare, so in practice there is a trade-off between protecting socio-cultural practices and protecting seals. But I suppose, in an ideal world, one would indeed say that the EU ought to try and make indigenous peoples make some compromises with what they see as tradition for the sake of animal welfare. I think it is utterly misguided to believe that one imposes that through a legal regime like the WTO with any real legitimacy (the pluralism point that Langille and I make in our Yale piece). And I don't know any provison as interpreted by the AB under either GATT or TBT that could justify imposing that. But from the animal welfare point of view, it isn't a terrible idea. I'm sure there are some forms of training or sensitization that could be undertaken by the EU (without even having to go back to the Parliament), which would exhibit that they have not entirely abandoned the public-morals animal welfare objective even while pursuing the equally public-morals based objective of vindicating indigenous rights. Of course,this might be viewed as condescension since indigenous peoples may have other ways ofthinking about mediating their connection to nature, and it will do nothing to increase the access of Canadian or Norweigian imports to the EU market, since Canada actually exempts indigneous peoples from the main animal welfare requirements, and Norway's hunt is not indigenous to any extent. But, on the other hand, it is possible to meet the panel's apparent obsession with perfect rationality without sacrificing seals (and maybe even saving a few more). And again though without providing any economic benefits to Canada nor Norway.
Then there is less restrictive alternative. I won't repeat what I've already posted. Bottom line: both Canada and Norway appear to propose or at least countenace a scheme that would allow seals hunted inhumanely-at least according to Norway, based on the EU's own standards for what is inhumane-t be excluded from the EU. By accepting this as a less trade restrictive alternative, they are atorning to the idea that were the EU to properly implement such a scheme as an alternative to the current ban, it could do so consistent with WTO law. How could an alternative that itself violates WTO be reasonably available, to say nothing of whether it could be regarded as less restrctive in a meaningful sense. Thus, by saying that the EU can operate an alternative scheme, banning seal products where the individual seal from which the product is derived has not been convincingly established to be killed humanely according to the EU's own standards, Canada and Norway are basically admitting that much of their argumentation is irrelevant bluster,e.g.. the claims about the existing Canadian hunt being "humane" , about Norway's permissiveness of gaffing being okay etc. The EU attorney responded in an honest, common-sense way to the proposed less-trade-restrictive alternative-because of the climatic and geographic conditions, the monitoring problems, etc. in reality under such alternative scheme very few seal products from Canada and Norway would ever get into the EU. But if the panel sticks to its apparent obsession to have a Platonic ideal of a measure, well, it wouldn't make any difference from an animal welfare perspective, and maybe not from the overarching public morals perspective that encompasses animal welfare as well as other things. The EU would simply impose a strict burden of proof to show that any given product coming in contained only matter from those seals that had been demostrably justified to have been hunted humanely.
Let me be clear. I think the ban as is would be perfectly justifiable under WTO law. But like we see with the implementation of COOL and Tuna/Dolphin, there may be a window of opportunity to use what appears to be a negative (and legally wrong) decision to advance progressive values, making the meaure stricter and tighter.
But what is really lost in the path that the panel appears to be going down, individual panelists to difffering degrees or at differing speeds, is the value of parliamentary democracy. No normative weight is accorded to the real world result of compromise in a democratic process, the equilibrium of principle and interest, where multiple objectives are reflected in a law, but balanced in a different way than would be done by a perfectly rational philosopher-king or queen, because the balance is struck not on Mt. Olympus but through passionate argument, shrewd lobbying, and often rough and imprecise negotiated trade-offs. There was no evidence here, despite the smoke and mirrors, of any discrimination, any lack of due process, any targeting of foreign economic interests, any corruption of democracy. Just hard trade-offs, Well,
Well, Norway's lawyer, and the Chair of the panel apparently agrees, thinks that the least inconsistency, any element of tension between or imperfect integration fo different aspects of public morality, of multiple objectives, is fatal-intolerable contradiction, scandalous hypocrisy.
Yet this very messiness is what many of us call instead representative democracy, and we think it remains the best hope for humanity of decent self-governance (even if some could argue a la Churchill that it is the best in being the least worst.)