Canada and Norway have been attacking the EU anti-cruelty ban by focusing, at this stage exclusively, on its exceptions. Of what relevance are these to TBT 2.2 (as opposed to 2.1)? I think the answer lies largely in the US-Tuna II case. Recall that the AB in reversing the panel, found that it was no problem for the US to pursue its tuna and consumer protection goals with respect to ETP tuna, but not tuna outside the ETP. The panel, the AB said, should have evaluated the relationship between the objective and the measure, focusing on the ETP. Could one not apply the same reasoning here with respect to commercial hunts on the one hand and indigenous and marine management hunts, on the other? Similarly, as I have mentioned in previous posts, Ibelieve, the AB also held that it is fine for a measure to be one that is capable of achieving a Member's goal only partially. Thus the implicit exclusion of transit and inward processing from the EU seal ban should in any way point toward a finding that its measure is not necessary for the protection of public morals.
But as far as the task of the Appellate Body goes, I should mention an interesting line of questioning from Division Member Chang yesterday afternoon. This goes to burden of proof and the difference between TBT Article 2.2 and GATT Article XX. Chang raised the possibility that the analytic under 2.2 might be more straightforward since, after all, one is not concerned with the justification of some measure that has been found, already, to provisionally violate a covered agreement. Thus, unless under 2.2 the complainant makes a convincing prima facie case that there are other reasonably available measures less trade-restrictive than can make an equivalent contribution to the Member's objective, a 2.2 claim simply doesn't get off the ground, and there is no need for a relational analysis of the kind that is done under Article XX (weighing and balancing, etc.). It seems to me that this approach is one that is worthy of serious consideration. It certainly makes the task of the Appellate Body easier in the present case, since whatever the complainants' arcane arguments in appellate submissions about weighing and balancing, and multiple versus single objectives, the facts found by the panel are enough to establish that the complainants never made a convincing prima facie case that there was a reasonably available less trade restrictive alternative.
