Today at the Seal Products Appellate Body hearing, the discussion focused on Canada’s claim that there is a philosophical consistency test included in the law of the WTO. Canada’s argument is that under the law of the WTO, the EU should not be able to regulate to protect seals because this legislation is philosophically inconsistent with the way in which the EU has acted to protect other animals, such as deer.
Howse, Sykes, and I responded to this argument at length in our amicus brief filed in the Seal Products dispute. We argued Canada’s consistency claim is incompatible with the text of the GATT, the nature of legislation in democratic societies, and the function and institutional legitimacy of the WTO.
Our amicus reads in relevant part:
The Appellate Body should reject Canada’s argument that Article XX of the GATT should contain a novel “consistency” requirement: that a Member’s regulation must be philosophically consistent with all other regulations adopted by that Member.
Canada argues that the Panel erred in not taking into account other regulatory measures, in entirely distinct economic sectors, taken by the EU that are allegedly not philosophical consistent with the Seal Regime.[1] Canada’s claim is that because the EU permits some forms of animal suffering under its internal regulation, the EU should not be permitted to stand up for the welfare of seals. In other words, according to Canada, because the EU has not perfectly protected all species of animals from inhumane suffering, under WTO law it has no right to regulate to protect one species.
In short, Canada is arguing that the WTO should apply a strict consistency requirement in its analysis of all regulation developed by Member states, regardless of whether discrimination in trade is the consequence of any inconsistency.
There are several problems with Canada’s claim, which should cause the Appellate Body to reject this argument, and to refuse to read this novel and absurd consistency element into GATT Article XX.
First, it is well established under GATT and TBT jurisprudence that the regulating Member may choose its level of protection against a given risk. The “right to regulate” is a fundamental component of WTO law. As recognized in EC – Asbestos and Brazil – Tyres,[2] Members have the right to set the level of risk protection they desire under the law of the WTO.
Canada in its Appellant’s submission invites the Appellate Body to deviate from this longstanding jurisprudence, and to find that as part of the determination of whether a Member’s measures are consistent with GATT Article XX the Panel must compare the level of protection chosen against the risk to which the Member’s scheme is directed, with other risks which are related to the same legitimate objective.
Canada’s submissions seek to erode WTO Members’ right to regulate, by requiring that any regulation made by any WTO Member be philosophically consistent with all other such regulations. A consistency requirement would not allow Members to set the level of risk that they desire in the context of a particular policy matter, because the Member would be required to ensure that the level of risk was not inconsistent with any other regulation it adopted where another kind of risk was asserted to be somehow comparable or analogous. This is a severe encroachment on a Member’s right to regulate that the Appellate Body should reject.
Second, it is unclear how such a consistency requirement could be inferred from the text, context, object, and purpose of GATT Article XX. It would therefore be entirely out of keeping with the interpretation of the covered agreements “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose” that is required by the Vienna Convention on the Law of Treaties and the principles of customary international law regarding treaty interpretation codified therein, and the approach to treaty interpretation that has consistently been embraced in WTO case law. Indeed, such a consistency requirement has been found to be absent from the relevant texts in prior WTO jurisprudence.
For example, in EC – Asbestos, Canada made a similar argument: that the EC level of protection against risks arising from substitute products should be taken into account in determining whether its ban on asbestos was necessary for the protection of public health. The Appellate Body rejected this suggestion.[3] Unlike Article 5.5 of the Agreement on Sanitary and Phytosanitary Measures (the SPS Agreement), which imposes a limited obligation of consistency in respect of levels of protection, GATT Article XX contains no textual guidance as to what risks are to be compared, what would be acceptable explanations for different levels of protection, and on the other hand in what situations differences in levels of protection would affect the conformity of the Member’s measure with the GATT. Under Article 5.5 of the SPS Agreement, WTO Members commit to “avoid arbitrary or unjustifiable distinctions in the levels it considers to be appropriate in different situations, if such distinctions result in discrimination or a disguised restriction on trade.” There is no such commitment to treat different situations consistently under GATT.
It stretches the legitimacy and institutional resources of the Dispute Settlement Body to cut these kinds of criteria from whole cloth and to read them into GATT Article XX. Indeed, it is significant that the architects of the Uruguay Round reserved the imposition of an obligation of this nature (albeit a limited one) for a context – sanitary and phytosanitary measures – where there was a limited range of risks covered by the relevant agreement, where extensive international standards exist, and where there is agreement among WTO Members about which international organizations may provide guidance concerning the risks in question and appropriate regulatory approaches.
Thus, in Korea – Beef, the Appellate Body explicitly held that examining regulatory instruments associated with addressing other risks does not imply a requirement that a Member’s level of protection be similar or consistent across risks:
Examining enforcement measures applicable to the same illegal behavior relating to like, or at least similar, products does not necessarily imply the introduction of a “consistency” requirement into the “necessary” concept of Article XX(d). Examining such enforcement measures may provide useful input in the course of determining whether an alternative measure which could “reasonably be expected” to be utilized, is available or not.[4]
Along these lines, it was not inappropriate for the Seal Products Panel to consider the measures used by humans to slaughter animals other than seals in its analysis of what alternative might have been reasonably available; however, given the Panel’s factual findings about the unique conditions under which the seal hunt occurs and the difficulties in ensuring humane methods in those unique conditions, it is not surprising that the Panel found the comparisons to other hunts of little assistance.[5]
Third, we note that the Appellants in Seal Products identified the relevant universe of like products as seal products. They did not seek to argue that other products, for which it is alleged that the EU has a lower level of protection, or higher acceptable level of risk in regard to animal suffering, are “like” seal products. Thus it is difficult to understand how they can conclude that these other industries are in any way relevant to the analysis.
Fourth, reading a “consistency” test into GATT Article XX would overstep the WTO’s institutional remit, which is to regulate international trade in order to counter protectionism, whether explicit or de facto. The WTO cannot assume the role of attempting to rationalize or harmonize the way in which different peoples in different WTO Members prioritize different kinds of risks, as well as take into account the relative costs of responding to different risks. Even in the one instance where as noted there is a consistency requirement in a covered agreement, the Appellate Body, in EC – Hormones, emphasized the many human considerations or factors that might make risks that seem abstractly similar or comparable not really comparable at all from the perspective of a particular society or its responsible and representative government.[6]
Finally, such a consistency requirement would be entirely unworkable in a democratic society, since a Member state would be prohibited from altering its legislation on an incremental basis. Incremental legislation is the standard approach in a democratic society, in which legislation must be changed slowly over time, through the democratic process. Democratic societies almost never address all risks they are concerned about at the same time or at the same speed. Under Canada’s approach, advancing the regulation of animal suffering one step at a time would be impossible, because any state seeking to do so would be forced to treat all animals in all contexts equally humanely (however that would be measured). This approach is unworkable, both for the ability of democracies to legislate and for the WTO’s capacity to regulate international trade.
Howse and I also predicted that this argument would be made in the Seal Products dispute when we wrote our YJIL article on the subject. Our article states, in relevant part:
The importance of sincerity, and of assuring that the measure is not a pretext for protectionist, discriminatory treatment of imports, is sometimes confused with the notion that invocation of the public morals exception requires moral purity. In the US – Gambling case, for example, Antigua unsuccessfully questioned the legitimacy of the United States’ objective, given that the United States did not ban all gambling but only Internet gambling. In the context of animal welfare, critics of the European Union may point to practices permitted with respect to treatment of animals other than seals that seem prima facie to be as cruel and inhumane as the treatment of seals that is the concern of the EU regulation. Yet, properly interpreted from a pluralist point of view, this reality does not undermine the sincere or bona fide character of the seals regulation as an animal welfare measure. A number of observations to support this contention are in order. First, moral or spiritual beliefs about animals and the acceptability or unacceptability of certain practices in the treatment of them may well result in different animals being viewed as having different kinds of relationships to human beings, just as the purpose of the infliction of suffering, as well as its level or intensity, may well matter … Accusing Hindus of hypocrisy, for example, because they view cows as sacred but not chickens, is simply not taking pluralism seriously.
[Furthermore], there is nothing in the text of Article XX(a) that requires, for the invocation of the public morals exception, that the moral beliefs or values at issue be of such a priority that they trump all other moral beliefs, values, or social interests. This would render regulatory schemes that balance or harmonize some beliefs or values with other beliefs or values indefensible in light of their supposed objective to protect public morals. But sincerity does not imply fanaticism. Recognizing pluralism, the recent WTO panel report in the COOL case notes: “it is not inconceivable that parliaments and governments pursue more than one objective through a certain measure. Different constituencies and legislators may have different objectives, which nonetheless lead to the adoption of a particular measure.” Indeed, it would be odd if Article XX operated only to protect absolutist moral positions, thereby opposing elements of value pluralism in WTO member societies. As [in relation to the IC exception], concern for the existence and way of life of certain human communities may need to be balanced against the moral concern of animal welfare – but this does not make the latter any less of a genuine reflection of the prevailing beliefs or values of the society in question.
Third, as we have already noted, the beliefs and values that are relevant for purposes of Article XX(a) are those prevailing today. The process of changing laws, regulations and practices to reflect today’s values … is not an instantaneous one. Only a despotic regime could change at once or in a short period of time hundreds if not thousands of laws and regulations to conform in such a diverse federal community as the European Union. Thus, it is totally unreasonable, indeed absurd, to expect the European Union to have already reflected the prevailing values and beliefs behind the EU regulation on seals with respect to every other context of treatment of animals.[7]
[1] Canada’s appellant submission, paras. 278-290.
[2] Panel Report, EC – Asbestos, para. 291; Appellate Body Report, Brazil – Retreaded Tyres, para. 57.
[3] Appellate Body Report, EC – Asbestos, para. 168.
[4] Appellate Body Report, Korea – Beef, para. 170. It should be noted that the Appellate Body did not suggest that examining measures related to other products was a legal requirement of Article XX, but rather than it was a permissible consideration that the Panel might, in making an objective assessment, take into account.
[5] Panel Report, EC – Seal Products, para. 7.187.
[6] See, e.g., Appellate Body, EC – Hormones, para. 217.
[7] Howse and Langille (Exhibit 1), pp. 418-419 (citations excluded).
