If paranoid people can have enemies, then a cliche can be true. So, today, a picture is worth a thousand words. The hearing quickly broke out of the anachronistic ritual of exchanges of written texts read word for word as the EU screened graphic videos of seals writhing in agony while the sealers were unaware of, or indifferent to, their fate.
At one level, these indignation-provoking images were a dramatic reminder of the power and authenticity of the moral sentiments that underpin the EU ban.
But the videos disclosed much else about this case. The images refuted Canada's claim about a humane 3-step method, because they showed that the sealers can't afford or don't afford the attention to what's happening with a still-conscious seal. They don't adminster the further steps in time to avoid unbearable suffering (and that is the whole hypothesis that that the 3-step method is humane).
The images also are a graphic display of why aboriginal and marine management hunts are different from the non-aboriginal Canadian hunt-the commercial pressures of the latter mean that the sealers have little choice but to try and immobilize as many seals as possible at the same time, and thus cannot tend to what is needed to put individual still-conscious seals out of their misery quickly. No aboriginal hunt involves this pattern.
And the images show why Canada's and Norway's fantasy of a world of regulated humane killing is just that-for even without the commercial pressure, the risks created by climate and geographic conditions often create a tragic choice between the safety of the sealers and what is needed to attend to the wounded seals and insure there suffering is merely instantaneous. The EU was careful not to attribute callousness to the individual sealers, indicating that the cruelty is ultimately systematic, a product of the combined commercial pressures and natural realities. This is why a humane hunt under entirely commercial motives is a delusion--even if an individual seal can be killed sometimes humanely and an individual hunter can be a humane human being.
Norway's opening statement mostly focused on responses to the EU legal arguments, based on various misreadings of WTO jurisprudence (I'll expand on that in a more doctrinally-focused post later). Norway suggested that the EU was required under Article XX to undertake negotiations prior to imposing a unilateral measure. A common misreading of the chapeau analysis of Shrimp/Turtle.
First, Norway (and as it turns out Canada) do not grasp the AB's fundamental holding that the chapeau goes to application of the measure, not the design features of the scheme itself (this is an innocent misunderstanding, as was demonstrated this afternoon, when neither Canada nor Norway could understand EU question to them about what elements go to application under the chapeau and which on the other hand relate to the design features or structure of the scheme itself, which would be the focus of analysis for example under Article III (see Chile-Alcohol etc).
Second, as the AB clarified in its 21.5 ruling, there is no general duty to negotiate under the chapeau but rather non-discrimination in the chapeau requires providing negotiating opportunities that are comparable from one forum to another. The chapeau does not require negotiation in the abstract, because it would be impossible to determine an abstact standard for serious negotiating effort, i.e.without a benchmark comparing the effort already invested with some particular other group of countries. If there were any doubt, the AB removed it in US-Gambling, where it categorically rejected the idea that the invocation of the GATS equivelent of Article XX could be conditioned on prior talks with a view to a negotiated settlement, regulatory cooperation (Para. 317).
The second big legal conjuring act by Norway was about the relation of 2.1 of TBT as interpreted by the AB in Cloves, Tuna/Dolphin, Cloves and Article I and III of the GATT. Norway's non-sequitur: the AB says scope of I and III in GATT and 2.1 in TBT are not always identical;therefore the particular AB holding about permissible detriminal impact from legitimate regulatory distinctions cannot apply to GAT I and III. This is the equivalent logical error to saying that a Rottweiler and a Spaniel are different; therefore, in no respect can laws about dogs be applied to both.
Of course there are some differences between GATT I and III and TBT 2.1, but this is not dispositive of what differences might influence legimatelythe interpretation of the provisions in question. What Norway cannot point to is any statement by the AB in the case law that says that because the text of GATT I and III are different from 2.1 the analysis about legitimate regulatory distinction in particular is inapplicable to I and III. True, the AB says that the absence of Article XX exceptions is a factor to be considered in understanding the overall relationship between GATT and TBT. But this goes to the determination of the AB that there is a need to preserve a similar balance between the right to regulate and trade liberalization both under TBT and GATT. Such a general observation about a balance is consistent with the proposition that under GATT itself there are important reasons why one needs to take account of regulatory purposes in considering treatment no less favourable, not just under Article XX, for reasons that that the EU lead attorney explained today (e.g.list of regulatory objectives under GATT X XX is closed). Anyhow, as I will likely elaboate, the language of the AB in EC-Asbestos para .100 on permissible regulatory distinctions between like products is so close as to be essentially identical to the language of the AB in EC-Cloves para. 169 that 2.1 should not be read so as to mean that "any distinction, in particular those based exclusvielyon particular product characteristics or their related processing or producting methods, would per se accord less favourable treatment...." And then you would need to expain Dominican Republic-Cigarettes where there was a disparate impact and no discrimination-the AB held that it was crucial to consider whether factors unrelated to national origin of the products procued the impact, in which case there was no basis for a finding of treatment less favourable. And on Article I, we have Canada-Autos, Columbia-Ports of Entry and the Poultry case for the proposition that non-national origin based distinctions or condition are compatible in principle with treatment no less favourable under I:I..
The third legal canard (besides the one diiscussed in my earlier post on the abuse of the ECJ by Norway in particular) of Norway and to some extent Canada is really the notion that a measure is incoherent if it serves multiple policy objectives in such a way as that the fulfillment of some of the objectives is limited by virtue of the need to address other objectives. Norway in particular resorted to a crude rhetorical trick. It suggested that on the one hand the limits on the marine management exceptiion-the size of the cull-could not be jusstified under marine management purposes, while the margine management exception seemed to belie the animal welfare/public morals concerns behind the ban as a whole. But this is just a game. In fact, all of this is explained by the basic observation of the AB in EC-Hormones that multiple objectives are normal in representative democracies.
The scale of hunt and non-profit limitations in the SMS exception as well as the subsistance/use within the community conditions in the indigenous exception reflect the concern that these exceptions not be abused or circumvented to undermine the main purposes of the general ban. thus,when one considers multiple purposes, one has to consider how a measure can prevent the pretextual invocation of one kind of purpose to undermine another. Each element of an exception has to be considered not simply in terms of the objective of the main measure taken as a whole or other objectives taken individually but the balance between them. The sleight of hand of Norway and Canda is to portray the EU scheme as incoherent, by judging certain elements solely in terms of one of the multiple purposes and others in light of another of the multiple purposes. The idea is to show incoherences by saying that elements that relate to one purpose cannot have deviations from that purpose that are required by other purposes that could be entirely justified by these other purposes. This technique totally undermines the basic proposition in EC-Hormones that meaures normally serve multiple purposes.
The big Canadian red herring was about dear hunting. Obviously, Canada and Norway never argued that deer products are like seal products. Now Canada contends that animal welfare regulation of deer hunting is nevertheless relevant.to whether the EU seal products ban is WTO-consistent. The idea here is that in order to be able to stop cruetly against seals the E uhas to prove that it has taken measures to stop cruelty against every other animal. This is what Jo Langille and I refer to in our Yale article as basically the fanatical or totalistic view of public morals, which suggests that the only bona fide form of governemtal regulation of morals is one thaat encompasses every possible moral concern of the same generic kind. Why this is bad philosohy is, I hope, well explained by Langille and I;in fact as we point out it would lead to an advantage under WTO law to totalitarianism and fanaticism over democratic pluralism and gradualism-totally perverse. But forget us-the AB clearly ruled in Tuna/Dolphin II that a Member can have a different level of protection for different animals, indeed under TBT 2.2 even a different level for ETP and non-ETP tuna.
One of the intense moments in the hearing occured where the EU asked Norway what its evidence was that hooking or gaffing the seal without afterwards checking if it is suffering i.e. conscious was an "exceptional" i.e. rare practice. Norway couldn't answer, bought for time, and never did answer, instead suggesting that the EU didn't understand the difference between pick-hunting and hooking-sort of like justifying the Spanish Inquisition by saying that its opponents didn't appreciate the nuances of the different torture procedures.
There were some important admissions by Canada and/or Norway. The EU had argued that what Canada labeled detrimental impact based on the total numbers of Canadian non-indigenous non-marine management seal products could be attributed to the decision of Canada to artificially increase the quantity of non-indigenous, non-marine management seal products through subsidies. Thus, the relative of quanitty of such products could not be attributed to anything the EU does to affect equal competitive opporutnities.
Canada's answer was that equality of competitive opportunities shoud be determined based on the situation that prevailed before the measure was introduced. Canada argued that the hunt was not subsidized at the time which the EU ban was introduced. In sum, Canada accepted that if the quantity of non-indigenous, non-marine management seal products could have been affected by subsidies at the time the measure was introduced, the EU would have a case that there is no disparate impact because the relative quanitty of Canaadian seal products qualifying for entry to the EU, i.e. competitive opportunities, is determined by factors related to Canadian policies not EU ones.. Well, now is the time for the panel to ask the parties about subsidies-direct and indirect aids-to the industry and to sealers that existed at the time. Canada says none, but I am deeply skeptical--one would need to cast the net wide and look at subsidies to the fisheries generally since these underwrite seal hunting by fishers. Of course, there is an additional docrinal issue as to whether the benchmark is the time at which the measure was introduced or the subsequent evolution of the competitive environment.
Despite all the bluster about proving public morals, Norway basically admiteed that the EU could protect seals under WTO law as long as it adopted the least trade restrictive measure. This was revealing. Their case boils down to the fantasy that there is a humane certification scheme out there that will achieve the EU's sought level of protection to the same extent as the current measure. Remember the AB judgment than even a "risk" that an alternative will fall short of the aspired level of protection will mean that the Member can justify its existing measure. Consider the facts, and remember that the measure must be "reasonably available" and that it is up to the complainant not the responding party to prove its existing and reeasonable avalabilty. First, several dozen countries have moved to address morally-based animal welfare concerns about seal hunts but not one of these countries-differing in levels of development, what region they are located, in culture, etc.--has considered that such a certification cheme is possible much less moved to implement it. Consider that the international organization for animal health has in a report of experts indicated that geographic and climatic conditions of the hunt in locations like Eastern Canada would make effective monitoring and enforcement of international humane hunting standards essentially imossible. Consider that neither the Canadian government nor the industry, despite the dramatically declining consumer market for seal products due to animal cruelty concerns, have ever tried to design, much less implement, a humane certification scheme, or even so much as produced a consultant's report as to how the various challenges could be overcome or met so that it is a reasonably available alternative. Consider all of this and it is evident that the certification scheme in question is a chimera, or to use the preferred expression of Norway's attorney,"illusory". More soon.