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On April 9, the panel on “Public Morals and Policy Space after the WTO’s Seal Products Case” provided a number of interesting insights into the Appellate Body decision in that case. Joanna Langille (NYU School of Law) served as the moderator for the panel. She began the discussion with an overview of the facts of the dispute. The case involved a challenge to the 2009 EU ban on the import of seal products. The ban had been justified on animal welfare grounds—as Ms. Langille described it, what appeared to be a non-instrumental moral reason. Canada and Norway challenged the ban as a violation of the non-discrimination obligations of the GATT and TBT. In its defense, the EU argued that the ban was not discriminatory and that even if it was, the ban could be defended under the Public Morals exception of GATT Article XX(a). The Appellate Body concluded, like the Panel, that the ban violated the non-discrimination obligation of the GATT, but that it was nonetheless justified as a matter of public morals. Ultimately, however, the Appellate Body determined that the ban failed the chapeau of GATT XX. Under its chapeau analysis, the Appellate Body found that the ban had been implemented in an arbitrary and unjustifiable way insofar as it allowed an exception for hunts conducted by Inuit or indigenous communities and for marine resource management purposes.
Ms. Langille then commented on the Appellate Body’s analysis of the public morals exception, which she interpreted to reflect a “pluralist” approach—that is, a recognition that the WTO lacks the institutional capacity to determine the legitimacy of Member States’ asserted moral values and that deference to Members’ stated moral goals is therefore appropriate. Ms. Langille also noted that the Appellate Body appeared to adopt a subjective standard for public morals. At the same time, she explained, it rejected a “philosophical consistency” approach to public morals (i.e., a state need not, for instance, ban all activities harmful to animals in order to advance a cognizable public-moral concern with practices that are specifically harmful to seals).
Ms. Jean Yves Remy (Sidley Austin LLP), the second panelist, critiqued the Seal Products report for having missed an opportunity to provide guidance as to how the Appellate Body assesses measures with conflicting objectives. The ban at issue, she explained, featured such “interlocking and conflicting” objectives: although the ban itself was motivated by a concern for animal welfare, the exceptions were animated by different concerns, such as the wellbeing of the indigenous communities. The result was a seeming contradiction between the purpose of the ban and the exceptions, which permitted certain seal products market access regardless of the circumstances in which they had been captured. Mr. Pablo Bentes (Steptoe & Johnson LLP) further commented on the conflicting objectives of the ban and the exceptions, discussing various points in the report where the Appellate Body struggled with these competing interests.
Ms. Laura Nielsen (University of Copenhagen Faculty of Law) concluded the panel’s discussion with interesting remarks regarding the design of the seal products ban. She questioned the breadth of the legislation, and commented on the political economies at stake between Denmark, Greenland, and the EU with respect to the adoption and implementation of the ban. She further pointed out that existing hard law, namely, ILO Convention 169, may, in fact, require Denmark to assist the Greenlandic people with the commercial development of their seal trade. That hard law may, she offered, call into question the legality of Denmark’s implementation of the ban.
Christina Skinner is an Associate-in-Law at Columbia Law School.