Returning to New York City, some of the darkness lifts. Good to read that Delaware's senate, following New York's the week before the Seals hearings, has passed a shark's fin ban. This evening, at NYU law, we host John Ruggie, speaking about his new book on corporate social responsibility. The Seals hearing begins to seem like a nighmare from which I have suddenly awakened.
Still I promised a blow-by-blow of the second day, and here it is (without repeating all of what was in the last two posts).
The day began with the Chair of the panel pushing hard on the comparison between the indigenous Greenland hunt and the non-indigenous Canadian and Norweigian hunts. The EU explained that the main purpose of the Greenland hunt is the pursuit of a traditional way of life, where seal products are part of the diet, and even the food for the sled dogs inseparable from that way of life. The Chair kept coming back to the apparent lack of evidence about animal welfare outcomes in Greenland, as if assumptions about a lack of animal welfare concerns were the reason why the EU had not banned products from that hunt. The EU had to explain, again as it did repeatedly in the hearing, that the reason that the Greenland hunt was permitted was that it was a traditional indigenous hunt, and that the EU had decided that to the extent that some of the hunting practices the indigenous people there had to use were not consistent with animal welfare, that indigenous rights must prevail. Here the exchanges kept circling back to the apparent incapacity of the Chair to understand that one can have two objectives and make a decision to sacrifice some of the fulfilment of the one in other to advance the other objective. If THAT is contrary to WTO law, then so is most legislation in most liberal democracies to the extent that it affects trade.
The Chair went on to summarize his thinking on the case, saying very kind things about the Canadian and Norweigian hunts, as integrating animal welfare and natural resource preservation, while all the while moving toward a more humane hunt. Before all the oral pleadings on facts and law had been made, he was essentially telling the EU they had lost their case. It was like a judge saying: ok, I'm going to find you guilty, is there anything you can say on your behalf before I pronounce the sentence. (I wonder if there could be a DSU 13 11 objective assessment challenge here on appeal).
There then followed a question from the Australian panelist, which ultimately provoked one of the most shocking moments in the hearings about which I've already blogged. She questioned whether Canada and Norway had correctly identified the measure in its Request for a Panel, since when she looked at the EU scheme she couldn't find an import ban as such. Norway responded that as far as its request went, there was no due process issue because, in referring to a prohibition with exceptions, Norway's description was adequate to identify the measure being complained of. I actually think that the Australian panelist was driving at a different issue than the adequacy of the Panel Request under DSU 6.2. But Norway's (mis-) interpretation of her concern, led to the outlandishly ignorant mistake I've already blogged, the Chair claiming that once the DSU has established a panel, any defects in the Panel Requests are of purely academic interest.
But, as I say, I suspect the Australian panelist was concerned with other matters, in particular with how one could claim a violation of Article XI if the measure itself is not a prohibition or restriction on imports. Perhaps also with whether and to what aspects of the measure the TBT Agreement applies. The EU gave a very clear explanation: the EU measure prohibits, with certain exceptions, the placing on the EU market of seal products (whether imports or internal), while this prohibition is enforced at the border in the case of imports. In other words, this is exactly the kind of measure that, pursuant to the Note Ad Article III, is to be considered under Article III National Treatment not Article XI Quantitative Restrictions (as the panel made clear in EC-Asbestos in a finding that was adopted).
The Australian judge then kept hammering away on underinclusiveness concerns. Why was transit through the EU consistent with public morals, but not consumption by EU consumers of seal products? The basic confusion here is really one sown by Norway's attorney: only a fanatical moral rule qualifies as a "public moral"-so, for example, the prohibition on taking of human life isn't really a moral rule if the criminal law permits a necessity or legitimate self-defense excuse or justification, or euthanasia, or abortion, or capital punishment.
But WTO law allows a Member to determine not only an objective but its level of protection in relation to that objective, and as well, only requires Article XX that a measure make a material contribution to the objective or TBT 2.2 some contribution. The moral beliefs of Europeans could be such that they find facilitating the consumption by non-Europeans of seal products itself to be unacceptable complicity with animal cruelty. But even it that were the case, they might be more concerned with the consumption of seal products by their own fellow-citizens. The contributon to the public morals objective might thus be calibrated with other legitimate concerns, like comity, extraterritoriality, and limited monitoring and enforcement resources. This is why, wisely, WTO law does not put in issue a Member's objective just because, in part due to other objectives (or other considerations that may fall within the same object, such as public morals), a Member decides to take a measure that only fulfills that objective to a limited extent. And the extent is really a sovereign choice. The Australian judge's concern with consistency would logically suggest that the EU could only act on pubic morals concerning cruelty to seals through trade-related measures, if it were to ban all trade with all countries where seal meat is produced or consumed. This relates to another reality from which the panel seems utterly removed: obviously in a given society there can be genuine fundamental moral beliefs but the degree of intensity of those beliefs, and what is adequate in the way of responding them through government regulation, will differ from citizen to citizen. I'm sure that you can find a few people in the EU who would like it if there were drone attacks on Canadian sealing vessels, and of course there are some at the other end of the spectrum who probably even think that Canada goes far enough in preventing cruelty and that nothing be done. The kind of approach to which the panel is inclined with respect to public morals, or at least Norway is urging them towards, would allow a non-democratic regime to stipulate a moral objective as that of an entire society (like China was able to do in the Publications case) but it would make it impossible or next to impossible for a liberal democracy to regulate based on a consensus that reflects a compromise between citizens with varying intensities of moral belief. Truly perverse. The remarkable degree of consensus in the European Parliament, between elected representatives of som any diverse societies, reflects the ability of liberal democracies to vindicate public morality while respecting pluralism in the extent or intensity of moral belief through compromise and calibration of the regulations in question. This what Norway perjoratively characterized throughout the two days as "cherrypicking" or "inconsistency" or complete incoherence.
The Australian and the Singaporean judtge pressed on with the line that the EU seemed to be completely sacrificing animal welfare in the case of the indigenous hunt exception. Could the EU not impose minimal animal welfare standards as a condition for allowing indigenous hunt seal products? The EU pointed out that there are large exceptions to Canada's own animal welfare laws for the indigenous hunt and that general animal welfare laws of the Member states would still likely apply to such hunts. The EU also rightly repeated the hard reality that the traditional way of life of the indigenous peoples in question basically makes a supervised humane hunt impossible. And I would simply add that there is nothing in WTO Law that prevents a Member from limiting its contribution to its objective (public morals, animal welfare here) in order to achieve another objective (indigenous rights). There is no case law that says that a Member has to have a measure that contributes to the maximum extent possible to goals A and B, such that when it pursues C, it must minimize the extent to which pursuing C limits or reduces its contribution to achieving A and B. This is especially true with the Seals measure, where A, the public morality of the European Union's citizens includes, or overlaps with, both B and C.
When it came to the sustainable marine management exception, ironically, the panel looked with suspicion on the limitation of the exception to "small scale" hunting. Ironically, because as the EU explained, besides anti-circumvention (trying to use a cull as a pretext or cover for the kind of commercial sealing that the EU's public morality cannot countenance), the limitation of the marine management hunts to a small scale reduces the number of seals killed even while contributing to the marine management. Here the EU has struck a different balance than with the indigenous hunts: the contribution to the marine management objective is limited by the concern to protect the contribution to the public morals and animal welfare objections. Again, there is nothing in WTO law that goes against such balancing.
Amazingly, the panel didn't really understand the point so there was a follow up question as to whether the EU considered that the quanity of seals killed mattered to public morals apart whether they were killed cruelly or not. With infinite patience, the EU explained the painful arithmitic: since inevitably a significant percentage of seals killed in any hunt will be killed inhumanely, there will be a lot more suffering from inhumane killing if a group of 1000 rather than 100 seals are killed. The kind of moral obtuseness shown in this hearing just boggles the mind. Don't the basic moral sensitivies of human beings display particular horror and indignation at humanly-inflicted suffering on a relatively large scale?
In questioning the non-profit dimension of the sustainable marine management exception, the Australian panelist returned to the moral absolutist or moral fanaticism line. She rightly noted that when seals are killed for marine management purposes, they are killed because they interfere with profit-making fisheries. So why is indirect profit from the suffering of seals okay, but not direct? Of course, that just goes to the intensity of authentic moral beliefs. Since the seal hunt cross-subsidizes in Canada other fisheries (by providing some of the income that allows the fishers to remain in operation and not move to Toronto, etc), one could ban other fish products from Canada, in the sense that these other fishers profit from the seal hunt (and indeed some activists have called for boycotts of restaurants that serve such products along these lines). But why can't the equilibrium point of intensity of moral beliefs across Europe, as determined by its representative institution, the European Parliament, be set at finding indirect profit acceptable and direct profit not acceptable? What case law of the Appellate Body could be pointed to, what text of any relevant WTO Agreement, to suggest that WTO Members surrender their right through legitimate public institutions, to determine the equilbrium point of intensity to which moral beliefs are reflected in regulatory action? More soon, have to prepare for class.