So if the Appellate Body were to complete the analysis and do its own assessment of the EU measure under TBT, what might its concerns be?
Some hints come from a few questions from the Division yesterday afternoon.
One concern seemed to be whether the EU measure is being effectively enforced where seal is merely one input into a product rather than the product itself. The EU sensibly replied that enforcing a regulation on a controlled substance is always more difficult where you are dealing with the substance being embedded in complex finished products. You may have to rely on customs declarations with penalties for fraud, and a certain amount of random inspection. That members of the European public may have some inadvertent truck or trade with seal in finished products due to customs fraud or inherent enforcement difficulties hardly seems, though, to undermine the rational relationship of the measure to the moral concerns of the EU. In Tuna II the AB made it clear that a measure can inherently fall short of fulfilling the objective while still making a material contribution and thus having a rational relationship to that objective.
A second question related to the MRM exception. The use of that exception requires that there be a recognized body and it also entails a role for competent authorities in ensuring the integrity of the use of the exception. It was pointed out by the AB Division that it seems that especially regarding competent authorities there might be some differences in the administration of the MRM exception where the seal products are coming from non-EU countries, i.e. some de jure different treatment. However as we know from US 337 on, different treatment may not necessarily be less favourable. It seems that the complainants’ industries have not attempted so far to use the MRM exception, so it would seem unripe to come to a conclusion that any differences in its functioning in the case of non-EU seal products actually create less favourable treatment for those products.
A third question implicates important issues about the normative foundations of the IC exception. It concerned whether the IC exception places any limits on the total amount or percentage of products from an IC hunt that are commercially marketed as opposed to being used for the subsistence of the indigenous community in question. The EU responded that there is no such limit defined in the measure. Now this leads to further question (not asked by the AB division yet):does this somehow undermine the justification for treating the IC hunts differently, i.e. protecting indigenous communities whose subsistence depended traditionally on the consumption of seal products?
At a very basic level, no. The EU was regulating based on the available evidence that traditionally significant amounts of the harvest from IC hunts have been used for subsistence in the community-there might then not be an obvious reason to fix a percentage as a legal requirement in order to ensure that the IC hunt serves the subsistence objective with respect to indigenous peoples. At a deeper level, the issue is whether there is a legitimate concern with the social and economic interests of indigenous peoples that would lead to a separate justification for permitting seal products that are hunted as part of a traditional indigenous way of life (i.e. of the sealers) but not consumed to a significant degree as part of a traditional way of life. But then one can imagine that Canada would come back and say that precisely the commercial hunt in Canada supports a traditional way of life of sealing. So if we are talking about preserving not just subsistence but protection of employment in sealing, what is the justification for singling out indigenous employment in sealing? The answer is very clear-the treatment of indigenous peoples historically and the terrible social and economic consequences that flow from it, means that it is entirely reasonable, as a matter of restorative justice, for example, to give them special protection for traditional ways of making a living such as sealing even if the products are no longer used for subsistence in their own communities to as great an extent as in the past, but rather where the sealing allows the indigenous sealers to make a living through selling the products into channels of trade. The WTO adjudicator shouldn’t micromanage the mix of moral or justice concerns in protecting aboriginal peoples and different aspects of their traditional ways of life (sealing and/or consumption of seal products for subsistence), as long as these concerns are applied both to domestic and imported products in a neutral and impartial way.