This afternoon( left just before the coffee break) saw the panel struggling with how within the text of TBT 2.2 to frame or imagine the EU measure, which is animated by moral concerns about seal welfare and about complicity with excessive suffering of seals, but balanced by other concerns. In contemplating this complexity, the AB Division came back several times to one particular dimension of the trade-offs. Indigenous sealing methods, dictated by a combination of climate and geographical conditions, and the need to seal throughout the year, often uncontestably involve considerable suffering for seals and poor animal welfare outcomes, which, at least at one very basic level, the EU measure is animated by the aspiration to prevent. How is it that another concern, protecting a traditional indigenous way of life, all of a sudden trumps the animating concern, when there needs to be a trade-off? Is this moral incoherence, hidden protectionism, or something else? Answer: the real world of democratic pluralism, as Langille and I explain in our Yale article, a world where we don’t have almost-divine philosopher kings or queens a la Plato who can harmonize all concerns without some need for sacrifice of some highly worthy concerns to others in particular circumstances.
For the EU, as it explained repeatedly, a certain kind of value pluralism is built into the moral beliefs about animal welfare themselves-thus it is morally acceptable that animals suffer for important human purposes while not otherwise to the same degree. Protection of indigenous traditions is one of those purposes. That seems logical to me but the EU has felt the need to keep repeating it in answers to the Division’s questions. Could a more fine-tuned trade-off be made? Possibly. The EU could have training courses for indigenous sealers aimed at trying to reduce seal suffering even in the difficult conditions of the hunts-at the margin, fewer seals would suffer. It could try and provide adjustment programs so that younger indigenous people who are sealing not because of a connection to tradition but just to earn a living (I’m sure some of those exist) can be moved to other professions. I am in favor of doing all of this, and it would make it easier to swallow that the EU is overriding seal welfare to protect indigenous ways of life in a way that respects the idea that all animal suffering that is not prevented should be justifiable.
But for the AB the question is surely this: where does WTO law require this more fine-tuned, more perfect less rough trade-off between seal welfare and it sacrifice for other ends? It certainly isn’t a requirement of non-discrimination either between products or between countries. You might say under Article 2.2 or GATT Article XX if the trade-off is so great that it means that the measure makes no material contribution to the legitimate objective, then there is an insuperable problem of justification. But then you would have to consider that the facts in this dispute are otherwise-even the panel, which seemed troubled with the trade-off in question, found as a fact that it didn’t prevent there being a material contribution to public morals. And, as just discussed, you would have to take into account that the moral beliefs in question, concerning unjustified suffering of seals, in this case internalize to some extent the trade-off to the moral standard itself, thus making questionable the extent that there is any trade-off purely in public morals terms. But, thirdly, even where there is one, can’t we just accept that there is simply a lower level of protection with respect to the animal welfare objective given the other concerns? In this sense a Member’s sovereign right to set its level of protection, and defend the material contribution in light of that level, allows it pursue multiple concerns that involve trade-offs without creating tensions within the Member’s WTO obligations. But perhaps it is about sincerity-maybe the thought is that the animal welfare activists are silly people who have been co-opted into supporting a protectionist scheme for Greenland, which merely substitutes the suffering of Canadian seals for that of Greenland seals. This cynicism about idealistic and highly competent and responsible people, this condescension, so present among the Canadian industry and its political protectors-at times I wonder how far it is from the corner of Norway’s lips (and it was not far at all in the panel hearings)? Woe betide an Appellate Body that bought any of that. Fortunately, the evidence is clear, even from Greenland’s own industry, as we cite in our amicus, that the ultimate effect of the EU ban has been to devastate Greenland’s own exports not prop up its sealing industry; the ban is working because it has become effective in and given support to the evolution of a world where this kinds of cruelty is simply less acceptable.
If the WTO doesn’t pay attention to the real world of regulatory democracy where worthy objectives are often moved ahead by messy imperfect compromises and trade-offs, then the real world of regulatory democracy will not give much credence to the WTO. A morally and intellectually perfect philosopher ruler in a utopia would want to leave no stone unturned to reduce to an absolute minimum the extent of sacrifice of animal welfare to protection of indigenous peoples’ traditional ways of life-but if WTO law required that, it would be totally unsuited to making the real world a better place one step at a time.
Now boarding to Buenos Aires. Have to post. Apologies for typos etc.
