To say the least, there is some puzzlement among WTO lawyers as to exactly why the AB found that the TBT Agreement did not apply to the EU ban on products from commercial seal hunts. The AB refered to the fact that the EU ban was based on characteristics of the hunt not the products from it, but at the same time did not enter into the analysis of whether this was then a product-related PPM, which would be covered under TBT, or alternatively, non-product related.
In sorting out what might have been in the back of the AB's mind it may be useful to return to the argument Jo Langille and I made for TBT non-applicability in our original Yale Journal of International Law piece:
...the provisions of the TBT are inherently unsuited to the determination of whether the EU ban, taken in its aspect as noninstrumental moral regulation, is inconsistent with the purposes of the WTO system. One need only examine the nature of the least trade-restrictive means test embodied in Article 2.2 of the TBT, which refers to measures that are least-trade restrictive taking into account the risks of non-fulfillment of the member's objective.This suggests a test that is oreinted to an instrumental balancing of some kind...many [public morals] measures are simply not tractable to an analysis based on risk assessment.(p. 423; footnotes omitted)
Now consider the following comment of the AB on public morals and risk assessment:
However, the notion of risk in the context of Article XX(b) is difficult to reconcile with the subject matter of protection under Article XX (a), namely, public morals. While the focus on the dangers or risks to human,animal, or plant life or health ... may lend itself to scientific and other methods of inquiry, such risk-assessment methods do not appear to be of much assistance or relevance inidentifying and assessing public morals. (paragraph 5.198)
it seems to me that here the AB has essentially come to the same insight as that in our article:the non-instrumental public morals dimension of the EU ban,the protection of EU consumers and citizens from complicity with the inhumanity of the commercial hunts,is inherently incapable of being assessed in the idiom of "risk". Which means it is inherently incapable of being assessed under TBT, given the crucial role that the notion of risk plays in TBT 2.2. It is now somewhat easier to grasp at least some of the normative considerations underpinning the AB's holding that the EU ban falls outside of the scope of TBT, at least as a public morals measure.