An article appearing in Sun New service by Jessica Hume gives a very misleading impression of the Seals case. http://bit.ly/1rmpx15 The article appears in the guise of an interview with Geneva-based attorney and former Canadian official Brendan McGivern. Of course, I don't know what Brendan said to the journalist and the extent to which his remarks were taken out of context.
The article first of all gives the impression that the case largely revolved around the public morals exception in the GATT and its application to animal welfare. But the EU has argued vigorously on appeal that the panel erred in law and failed to make an objective assessment in determining that its non-discriminatory ban with exceptions violates the GATT. Thus very much at issue is not just the Article XX defense of public morals that the panel accepted but whether in the first place any GATT violation has occured-the premise of the panel's findings under public morals was that the GATT had been violated. If the EU is right, and I think it is (see the Howse, Langille, Sykes amicus brief) and the panel's findings of violations of Article I and III of the GATT are fundamentally flawed, then a highly plausible outcome is that the Appellate Body would reverse the panel's findings of violation or declare them of no legal effect. Thus, it is far from clear, as the Sun News piece suggests, that the appellate ruling will be a kind of litmus test or watermark for the interpretation of public morals under Article XX (a). In suggesting that the whole case is about public morals, the article also ignores that one of the issues with the panel report is that the panel failed to adjudicate properly the EU's alternative claim that its measure was justifiable for the protection of animal life or health. That the EU ban serves the protection of public morals at the same time as protecting animal life and health is crystal clear from both the written and oral pleadings of the EU.
Also misleading in the Sun News piece is the notion that public morals has never been successfully invoked before in a WTO dispute. In US-Gambling the US did succeed in justifying its measure under the equivalent GATS provision to GATT Article XX(a) but was found not to have met the conditons of the chapeau, which are in no way, of course, specific to a public morals justification, but apply to all the paragraphs in the GATS equivalent of Article XX. Further, in China-Publications it was accepted that China's measure was for purposes of protection of public morals: the issue was its necessity, relative to other reasonably available alternative measures. Indeed, both both Gambling and China-Publications affirm the broad scope of individual WTO Members to determine the scope of public morals for purposes of their socieites.
A final very dubious suggestion in this article is that, if the Appellate Body were to uphold the finding of the panel concerning the public morals justification under Article XX (a), this provision would be the key to resolving trade disputes in many areas where there are different levels of protection for animal welfare in Canada and the EU. However, under the GATT WTO members retain their sovereignty to set levels of protection that apply with respect to products sold within their jurisdiction, subject largely to the requirements of non-discrimination. Laws protecting animal welfare are generally non-discriminatory; they thus do not, normally, require justification under Article XX (a) public morals or indeed under Article XX(b) protection of animal life or health. In addition Canada and the EU are in the process of concluding a bilateral trade and investment deal, which may well be the context in which disputes concerning animal welfare laws are resolved in the future between these trading partners.
