Plenty to think about when it comes to the “necessity” test applied by the AB to the EU seals ban (and especially the exceptions thereunder) under XX(a).
What struck me, in particular, is how the AB set up the public morals justification as somehow fundamentally different from other objectives WTO Members can “protect” under XX.
I can see that public morals are sensitive and that one needs to give WTO Members plenty of wiggle room to define their own public morals. I also understand that XX does not require WTO Members to be fully consistent when pursuing their public morals objectives (only SPS 5.5 has a genuine consistency requirement). In addition, public morals (e.g. the risk of buying a seal pelt “harvested” in a way that offends us, or the risk of having pork or alcohol in your food if your religion prohibits their consumption) are not as “scientific” as say, the risk of getting cancer from exposure to asbestos.
Yet, if you read paras. 5.198 to 5.200 in EC - Seals, the AB went well beyond that:
(i) “We … do not consider that the term "to protect", when used in relation to "public morals" under Article XX(a), required the Panel, as Canada contends, to identify the existence of a risk to EU public moral concerns regarding seal welfare” (para. 5.198).
(ii) “we … have difficulty accepting Canada's argument that, for the purposes of an analysis under Article XX(a), a panel is required to identify the exact content of the public morals standard at issue” (para. 5.199).
(iii) “Members may set different levels of protection even when responding to similar interests of moral concern” (para. 5.200)
Knowing that (i) public morals is merely about “standards of right and wrong conduct” maintained by people and (ii) a WTO Member can invoke public moral concerns of its people simply by putting these concerns in the text and legislative history of the measure (no need, apparently, to submit evidence or surveys confirming that your people really hold these concerns; if the government says so, that is enough, see paras. 135, 138, 139), what stops a WTO Member from saying that its people abhor this or that product (or, for that matter, any imported product)?
There would apparently not even be a need to “identify the existence of a risk” to public morals, nor must the “exact content” of the public morals standard even be identified. And it is ok for Members to be freakish about some products even if other products pose the exact same, or even higher, public moral concerns. Was the core finding of violation in Tuna II not the fact that the US was not even-handed when it comes to dolphin concerns in and outside the ETP; and in Clove that the US was not even-handed when it comes to clove and menthol cigarettes? Are these types of even-handedness concerns now wiped under the carpet, simply because we are talking of public morals? I guess they come back under the chapeau of XX but what do others make of these paras. 5.198-5.200?
Rob: Is it not one thing to say (as you did) that public morals is different and may not easily fall under TBT (on which I have my doubts); quite another to say that for public morals we do not even have to identify a precise standard or level of protection, nor a precise concern/risk? If neither is required, how can other WTO Members figure out what they must do to get market access and how can we even start making a necessity, proportionality or even-handedness assessment?