WTO Seals:the gestures of good faith the AB is demanding of the EU in return for public morals justification
The AB has held, without ambiguity or qualification, that the EU Parliament's seal products ban is justified as "necessary" for the protection of public morals under GATT Article XX (a), because of the contribution of the ban to the reduction in the number of seals killed inhumanely as well as to protecting EU citizens and consumers from complicity with this inhumanity. However, under the chapeau (preambular paragraph) of Article XX, the AB has demanded that the EU make certain additional gestures of good faith in the way it administers one aspect of its seals regime, namely the indigenous (IC) exception. These gestures are to assure the integrity and genuineness of the regime as applied, in relation to its public morals justification. Given its public morals justification, the EU, the AB seems to be suggesting, must administer the regime in a manner that is above suspicion of any favoritism or arbitrariness.
First of all, the AB questioned the apparent indifference to poor seal welfare outcomes in indigenous hunts as somehow in tension with the integrity of the main public morals justification. The AB did not say that the EU was precluded from having a lower level of protection of seal welfare by virtue of the other public morals concern of protecting traditional means of subsistence of indigenous communities. However, doing nothing at all about the suffering of seals in permitted hunts seemed to bring into question good faith or integrity in relation to the concern for seal welfare. Thus, the EU must now undertake some steps to indicate good faith-i.e. that it is still mindful of seal welfare as a public morals concern when operating the IC exception. I would suggest that the European authorities appoint a special commission, comprised of veterinary experts, animal ethicists, member state animal welfare authorities,animal rights activists, and indigenous community representatives, which would recommend steps that can be taken,consistent with the federal nature of the EU and the territorial limits of its jurisdiction, to improve seal welfare in indigenous hunts. In order to allow the time for this commission to do its work and consult with stakeholders the EU should ask for a relatively long implementation period. (In the AB's thinking here, I would add, I see an echo of Tuna II, where the AB was concerned that nothing at all was being done to address the incidental killings of dolphins outside the Eastern Tropical Pacific, and yet did not require the same degree of vigilance.)
Second, the AB was concerned that some of the criteria in the IC exception could be manipulated so that commercial hunters could circumvent the EU ban by abusing the indigenous exception. I think this was giving too much attention to smoke and mirrors cooked up by Canada and Norway, which the panel bought into. Nevertheless, the European authorities need to engage in some kind of rule-making that shows they have paid attention to this possiblecircumvention risk and have a strategy to counter it. I am not an expert in EU law, but I know there are anti-circumvention rules in the operation of a range of EU schemes. What is clearly required to satisfy the AB is a reasonable effort. As anyone knows who has been involved in designing regulatory enforcement, one can never make any regulatory scheme 100% invulnerable to manipulation or abuse in all cases.
Finally, the AB, echoing US-Shrimp, found that the EU had not made the kind of effort to cooperate with Canadian indigenous communities to facilitate the entry of their products into the EU under the IC exception as it had done in the case of Greenland indigenous seal products. Hard to understand the AB here, as the Canadian Inuit have so far preferred litigation to cooperation. But this is a demand of the AB that should be very easy to satisfy.
It will be noted that the first two gestures will if anything improve further seal welfare, and so in this sense, even the finding that the EU needs to act to meet the conditions of the chapeau is a victory for seals!