A few quick comments on the run about the Seals panel decision, focussing only on the non-discrimination claims for now:
- As to the TBT 2.1 claim, and specifically the IC exception, it’s worth noting that, despite the result, the Europeans got most of what they argued for on this point. First, the Panel rightly confirmed that it is still possible to justify a regulatory distinction under 2.1 even where the purpose of that distinction has no rational connection to the underlying objective of the overall regulatory regime. Second, it also affirmed that IC hunts are sufficiently distinguishable from ‘commercial’ hunts to justify the distinction drawn between the two in the European measure – despite clearly being convinced by the Canadian argument that both were commercial to some degree. Third, it also seemed convinced that the criteria used in the European measure to determine eligibility for the IC exception were unobjectionable in themselves (para 7.308, though there are some contrary indications elsewhere). The ultimate decision of the panel was based on the application of the measure as a whole to the Greenland hunt, which in their view had ‘purposes’ which closely matched those of commercial hunts. It is an understandable position on the facts, and one with limited consequences outside the seals context.
- That said, there are two questions which arise. One is a standard of review question: if the EU’s criteria for inclusion in the IC exception were more or less fine, and the problem is the application of these criteria to the Greenland hunt, should the Panel be applying these criteria for itself de novo, or giving the EU some margin of appreciation? The other is a question as to precisely what was the basis of the Panel’s decision. If I am right that the Panel had no problem with the criteria themselves for the purposes of 2.1 (and I acknowledge that there is some ambiguity about that), and since they don’t say anywhere explicitly that the Greenland hunt did not fit these criteria, objectively applied, then precisely what was the problem? There is more than a hint here that the Panel thought that the IC exception was deliberately designed to single out the Greenland hunt for better treatment, but in a case in which the criteria are unobjectionable, well designed, and applied reasonably, then how is this relevant, unless the test for discrimination is one based on intent (and it is clear that it is not)?
- Still on TBT 2.1, on the MRM exception, this is a little more difficult. At one point the Panel says that MRM hunts are not relevantly different from commercial hunts, in terms of their underlying purpose. These seems untenable as a general proposition, even if it might be true in relation to some MRM hunts in practice. In principle, it must be possible to design a measure which strikes a balance between the competing objectives of (a) stopping inhumane sealing as far as possible, while (b) still permitted seal hunts where they are necessary and desirable for marine resource management. In fact, I think that the decision of the Panel under the IC exception makes this general proposition clear. Then, almost immediately after, the Panel hedges its bets somewhat, saying ‘the difference that might be found between the commercial aspects of an MRM and a commercial hunt is, in our view, not sufficient to justify the lack of a rational connection between the distinction in question and the objective of addressing the EU public moral concerns on seal welfare’. This statement needs to be carefully scrutinised on appeal to determine its real meaning – for the obvious reason that it seems to raise again the spectre of substantive balancing, this time within the context of a TBT 2.1 claim.
- Finally as regards the GATT III.4 claim: Simon has already noted the extremely limited reasoning and analysis on this point, which I think must also limit the decision's broader significance in this respect. The most obvious noteworthy point is the fact that it does not mention the DR-Cigarettes line of jurisprudence according to which the underlying cause/rationale of the detrimental impact is relevant to an analysis of less favourable treatment. This may be a continuation of the effort in fn172 of US-Clove (AB) to minimize that line of jurisprudence, and it will be interesting to see whether and how the AB handles it in this case. But it is worth remembering that the language in DR-Cigarettes was introduced for a reason: it had become clear that having a purely effects-based test of discrimination, leaving all the work of justification to be done by Article XX, can lead to serious problems, at least in the difficult cases (primarily because of the limitations of Article XX). DR-Cigarettes provided the AB with a very useful technique for dealing with these cases, and it would seem to me to be a shortsighted move to get rid of it altogether.