1 Regulation (EC) No. 1007/2009 of the European Parliament and of the Council, adopted on 16 September 2009 on trade in seal products, Article 3. This regulation is also called the Basic Regulation. The implementing regulation of the Basic regulation was also challenged before the panel. Its title is Commission Regulation (EU) No. 737/2010 laying down detailed rules for implementation of the Basic Regulation, adopted 10 August 2010.

2 Howse, R. and Langille, J., ‘Permitting Pluralism: The Seal Products Dispute and Why the WTO Should Accept Trade Restrictions Justified by Noninstrumental Moral Values’, 37 Yale Journal of International Law (2012), 367 Google Scholar. The case is Panel Report, European Communities ‒ Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/R, WT/DS401/R and Appellate Body Report, European Communities ‒ Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/R, WT/DS401/AB/R, adopted 18 June 2014.

3 On the relevant international human rights instruments, see Beqiraj, J., ‘The Delicate Equilibrium of EU Trade Measures: The Seals Case’, 14 German Law Journal (2013), 279 Google Scholar. On an emerging general principle of international law for the protection of animal welfare, see Sykes, K., ‘Sealing Animal Welfare into the GATT Exceptions: The International Dimension of Animal Welfare in WTO Disputes’, 13 World Trade Review (2014), 471‒498 CrossRefGoogle Scholar.

4 Panel Report, EC–Seals, paras. 7.100, 7.125.

5 Ibid., para. 7.106,

6 Ibid., para. 7.108; Appellate Body Report, European Communities – Measures Affecting Asbestos and Asbestos–Containing Products, WT/DS135/AB/R, adopted 5 April 2001, para. 74.

7 Panel Report, EC– Seals, paras. 7.108–7.112.

8 Appellate Body Report, EC–Seals, para. 5.29.

9 Ibid., paras. 5.28–5.29, 5.38.

10 Ibid., paras. 5.36, 5.41, 5.45.

11 Ibid., 5.57.

12 Ibid., 5.67–5.69.

13 Ibid., para. 5.70.

14 Panel Report, EC–Seals, para. 7.132. The prior cases are Appellate Body Report, United States – Measures Affecting the Production and Sale of Clove Cigarettes, WT/DS406/AB/R, adopted 14 April 2012, paras. 175, 181–2; United States – Certain Country of Origin Labelling (COOL) Requirements, WT/DS384/AB/R, adopted 23 July 2012, paras. 271, 373–379, Appellate Body Report, United States ‒ Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/AB/R, adopted 13 June 2012, paras. 215, 315–322.

15 Panel Report, EC–Seals, paras. 7.138–7.140. For a skillful analysis of the unlikeness of commercially hunted and Inuit-hunted seals, see Robert Howse, Joanna Langille, and Katie Sykes, ‘Written Submission of Non-Party Amicus Curiae’, World Trade Law, http://www.worldtradelaw.net/amicus/howsesealsamicus.pdf, paras. 77–83.

16 Panel Report, EC–Seals, paras. 7.164, 7.168, 7.170.

17 Ibid. paras. 7.185–7.224.

18 Ibid., paras. 7.225–7.245.

19 Ibid., paras. 7.261–7.271, 7.275.

20 Ibid., para. 7.282.

21 Ibid., paras. 7.285–7.289.

22 Ibid., paras. 7. 292–7.298.

23 Ibid., paras. –7.302–7.319.

24 Ibid., paras. 7.330–7.331, 7.335, 7.343–7.347.

25 Ibid., paras. 7.351–7.352.

26 Ibid., para. 7.353.

27 Ibid., para. 7.374.

28 Ibid., para. 7.383.

29 Ibid., 7.404–7.410.

30 Ibid., paras. 7.386–7.398.

31 Ibid., paras. 7.417–7.418.

32 Ibid., paras. 7.419–7.420.

33 Ibid., paras. 7.401–7.402.

34 Ibid., para. 7.402.

35 Ibid., paras. 7.401–7.402.

36 Ibid., para. 7.426.

37 Ibid., para. 7.442.

38 Ibid., paras. 7. 445, 7.447, 7.451–2, 7.453–7.455. The processing exception allows imports of seal products regardless of the origin of the hunt for processing for export.

39 Ibid., para. 7.460.

40 Ibid., paras. 7.465–7.466.

41 Ibid., paras. 7.480–7.482, 7.496–7.497, 7.499, 7.502.

42 Ibid., para. 7.504.

43 Pitschas and Schloemann disagree that the EU Seals Regime sets down PPM measures. According to them, the Seals Regime stipulates the identity of the hunter (Inuit) and the purpose (MRM exception) but not the process through which the hunt must occur. See Pitschas, C. and Schloemann, H., ‘WTO Compatibility of the EU Seal Regime: Why Public Morality is Enough (but May not Be Necessary)’, Beiträge zum transnationalen Wirtschaftsrecht (Institute of Economic Law, 2012), at 9–10 Google Scholar. However, their distinction is unduly formalistic. A regulation stipulating that only persons with a certain qualification may be engaged in the production of a product (for instance in the mixing of chemicals) attaches to persons but is really concerned with product characteristics, such as explosiveness.

44 On these grounds, the US argues that the Seals Regime is not a technical regulation. US Third Party Submission, http://www.ustr.gov/sites/default/files/DS400.AB_.US3rdPtySub.Public.pdf, paras. 40–41.

45 For a critique of the Appellate Body's approach, see Levy, Philip I. and Regan, Donald H., ‘ EC–Seal Products: Seals and Sensibilities (TBT Aspects of the Panel and Appellate Body Reports), 14 World Trade Review (2015), 337‒379 CrossRefGoogle Scholar.

46 Other Appellant Submission by the European Union, http://trade.ec.europa.eu/doclib/docs/2014/january/tradoc_152142.pdf, paras. 66–67. The ‘original sin’ goes back to the earlier not appealed finding in the Panel Report, US–Tuna II, paras. 7.71–7.79 that the US labeling requirement on ways of hunting tuna laid down product characteristics and was a technical regulation. The panel reasoned that the second sentence of the definition of a technical regulation which included ‘labeling requirements’ sets down examples of technical regulations. As the US measure was a labeling requirement that applied to a product (tuna), the panel considered it fell under the second sentence and that it therefore was a technical regulation. Any labeling requirement applicable to a product but aiming at regulating unrelated PPMs would then be a technical regulation. If the second sentence of the definition sets down examples of technical regulations, such examples would arguably have to be read in light of the general definition in the first sentence. The panel instead treated the second sentence as definitive. In a comment on the case, Pauwelyn has wondered whether the case has put an end to the PPM debate. See J. Pauwelyn, ‘Tuna: The End of the PPM distinction? The Rise of International Standards?’, International Economic Law and Policy Blog, 22 May 2012.

47 This principle has been affirmed in Appellate Body Report, US–Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, adopted 20 May 1996, p. 23 and in Appellate Body Report, Japan–Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, AT/DS11/AB/R, adopted 1 November 1996, p. 12.

48 Howse, R. and Levy, P. I., ‘The TBT panels: US–Clove, US–Tuna, US–COOL ’, 12 World Trade Review 2 (2013), 327 CrossRefGoogle Scholar, at 359.

49 Appellate Body Report, EC–Asbestos, para. 67.

50 Appellate Body Report, EC–Seals, para. 5.12.

51 The same criticism applies in respect of the panel's reasoning under Article 2.2 of the TBT Agreement and GATT, Article XX (a). The panel referred to various international agreements on indigenous interests in paras. 7.292 and 7.295 but it did so only as a matter of evidence to establish that such interests are broadly recognized.

52 Beqiraj, n. 3, at 309–313.

53 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331, 8 I.L.M. 679, Article 31.3(c).

54 Information on the states parties to the ICCPR and the ICESCR is available here: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en and here: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3&chapter=4&lang=en.

55 Howse and Levy, n. 48, at 366–367 and Sykes, n. 3, at 17.

56 Appellate Body Report, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, para. 845.

57 Beqiraj, n. 3, at 310–311.

58 Ibid., at 311.

59 Nielsen and Calle maintain that the 2.1 approach omits the necessity step of an Article XX-type analysis. Nielsen, L. and Calle, M.-A., ‘Systemic Implications of the EU–Seal Products Case’, 8 Asian Journal of WTO and International Health Law and Policy (2013), 41 Google Scholar, at 57. It is true that the Appellate Body in US–Clove did not use the word ‘necessary’ when it found that Article 2.1 of the TBT Agreement permits legitimate regulatory distinctions. However, it did require that the detrimental impact stems exclusively from a legitimate regulatory distinction. The word ‘exclusively’ therefore, too, embodies a rational connection test between the measure and the objective that asks whether the measure is narrowly focused, similar to the necessity test.

60 Mavroidis, P., ‘Driftin’ too Far from Shore – Why the Test for Compliance with the TBT Agreement Developed by the WTO Appellate Body is Wrong, and What Should the AB Have Done Instead’, 12 World Trade Review, 3 (2013), 509 CrossRefGoogle Scholar, at 516–517, 525–526.

61 Panel Report, United States – Measures Affecting the Cross–Border Supply of Gambling and Betting Services, WT/DS285/R, adopted 20 April 2005, paras. 6.465 and 6.461.

62 Ibid., para. 6.461.

63 ‘The Definition of Morality’, Standford Encyclopedia of Philosophy, http://plato.stanford.edu/entries/morality-definition/ (accessed 14 January 2014).

64 The discussion of US–Tuna II below shows that this interpretation conforms to the ordinary meaning of the term.

65 Panel Report, EC–Seals, para. 7.419.

66 Ibid., para. 7.420.

67 Ibid., para. 7.418.

68 Appellate Body Report, US–Tuna II, para. 313.

69 Ibid.

70 Penn State Style for Students online, https:// www.e-education.psu.edu/styleforstudents/c2_p5.html (accessed 18 December 2014).

71 Seal welfare cannot be 100% protected without infringing on traditional hunts of the Inuit and vice versa.

72 Howse and Levy, n. 48, at 348. Similarly, Howse et al., n. 15, para. 97.

73 ‘Authority’, Section 7, Stanford Encyclopedia of Philosophy, http://plato.stanford.edu/entries/authority/#4 (accessed 14 January 2014).

74 See Canada's Appellant Submission, on file with the author, paras. 78–106. The EU's Appellee Submission, http://trade.ec.europa.eu/doclib/docs/2014/february/tradoc_152187.pdf, para. 92 explains that the Appellate Body in US–Clove was willing to consider concerns about withdrawal symptoms of addicted smokers alongside the main public health objective of the measure. In paras. 278–290 of its Appellant Submission, Canada questions the necessity of the Seals Regime because the EU fails to adopt consistent levels of animal welfare protection for terrestrial hunts and farm animals. Given the need for multipurpose policies, the comparison with levels of protection for similar risks needs to proceed with caution since those levels of risk or the trade-offs required may be different. Canada makes similar claims with respect to GATT Article XX(a) in paras. 347–430. The EU as well as Howse et al. argue that such moral absolutism in regulatory policies for animal welfare is problematic because it undermines the possibility for incremental change and is inconsistent with the absence of a consistency provision akin to Article 5.5 of the SPS Agreement. See EU's Appellee Submission, paras. 271–276 [on the TBT] and 347–352 [on the GATT], Howse et al., n. 15, paras. 145–157.

75 Panel Report, EC–Seals, paras. 7.401–7.402.

76 This leads the EU to the conclusion that the panel should have found that the IC and MRM exception derived from the same standard of morality. See EU's Appellee Submission, n. 74, paras. 8, 140, 145. However, paras. 156–159 of the EU's Appellee Submission acknowledge that a conflict is present.

77 The same follows from Nielsen's and Calle's and Perisin's position. Nielsen and Calle seem to be making the argument that the fact that the IC exception and MRM exception engender poor seal welfare and pursue different objectives constitutes per se arbitrary or unjustifiable discrimination. Nielsen and Calle, n. 59, at 58. Perisin argues that the EU should not have had exceptions in its policy had it wanted to achieve a zero risk of having products from seals killed inhumanely. See Perisin, T., ‘Is the EU Seal Products Regulation a Sealed Deal? EU and WTO Challenges’, 62 International and Comparative Law Quarterly (2013), 373 CrossRefGoogle Scholar, at 400. In my view, this does not follow. The EU could very well have had the aim of zero risk to seal welfare but this aim was simply overridden by a weightier normative concern to protect minority and Inuit rights and fisheries. Like me, Levy and Regan argue that any TBT-preference for single purpose policies instead of policies with exceptions and multiple purposes would be problematic. Levy and Regan, n. 45, at 35.

78 Panel Report, EC–Seals, paras. 7.425–7.427.

79 L. Bartels, ‘The Chapeau of Article XX GATT: A New Interpretation’, University of Cambridge Faculty of Law Legal Studies Research Paper Series No. 40/2014, 1, 2, 7, 16.

80 Ibid., at 4.

81 Howse and Levy, n. 48, at 369.

82 Ibid.

83 Appellate Body Report, EC–Asbestos, n.6, para. 168; Appellate Body Report, Korea – Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WT/DS161/AB/R, WT/DS169/AB/R, adopted 10 January 2001, para. 176.

84 On the regulation of externalities as a purpose of the GATT, see Mavroidis, Petros, Trade in Goods: The GATT and the Other Agreements Regulating Trade in Goods (Oxford University Press, 2007), at 14–18 Google Scholar.

85 Appellate Body Report, US–Tuna II, para. 321, Appellate Body Report, US–COOL, para. 377.

86 Panel Report, EC–Seals, para. 7.465.

87 Sykes, n. 3, at 3–4, 9–19.

88 Sykes argues that a principle of animal welfare would call for a balancing approach against human needs and other purposes. See Sykes, n. 3, at 23.

89 In paras. 156–157 of its Appellee Submission quoted at n.74, the EU gives some arguments as to why the requirement that IC hunts meet animal welfare standards fails to achieve a sufficient level of protection of IC interests, and in paras. 186–222 it demonstrates how the Regime as a whole contributes to reducing demand and falling prices, including for IC seals.

90 Donald H. Regan, ‘Measures with Multiple Purposes: Puzzles from EC–Seal Products’, forthcoming in American Journal of International Law Unbound.

91 See also Perisin, n.77, at 399–400.

92 Appellate Body Report, EC–Seals, paras. 5.320, 5.324–5.328.

93 Bartels, n. 79, at 16. See also p. 1, 2, 7, 10, 12.

94 Panel Report, EC–Seals, para. 7.398, 7.445.

95 Other Appellant Submission by the European Union, n. 46, para. 108.

96 Ibid.

97 Howse et al., n. 15, at paras. 50–54.

98 Ibid.

99 Ibid., at 55–56.

100 Perisin, n. 77, at 395–396.

101 Ibid.

102 Howse and Langille, n. 2, at 412.

103 Singer, P., Animal Liberation. The Definitive Classic of the Animal Movement (HarperCollins Publishers, 2009), at 7–8 Google Scholar, 20; Bentham, J., ‘A Utilitarian View’, section XVIII , IV from An Introduction to the Principles of Morals and Legislation, reprinted in Kuhse, H. and Singer, P., Bioethics. An Anthology (Blackwell Publishing, 2006), at 566–567 Google Scholar.

104 Singer, n. 103, at 159–164, 170.

105 Howse and Langille, n. 2, at 412, 417–418.

106 Beauchamp, T. L. and Walters, L., Contemporary Issues in Bioethics (Thomson Wadsworth, 2003)Google Scholar, at 13.

107 Singer, n. 103, at 17–21, 159, 229–30.

108 Panel Report, EC–Seals, paras. 7.375, 7.410.

109 ‘Virtue Ethics’, Stanford Encyclopedia of Philosophy, http://plato.stanford.edu/entries/ethics-virtue/.

110 Ibid.

111 Ibid., and see also Hüller, Thorsten, Deliberative Demokratie: Normen, Probleme und Institutionalisierungsformen (Lit Verlag, 2005), at 32–33 Google Scholar.

112 ‘The Definition of Morality’, Stanford Encyclopedia of Philosophy, available at http://plato.stanford.edu/entries/morality-definition/#NorDefMor.

113 Ibid.

114 Panel Report, US–Gambling, n. 59, para. 6.463.

115 Ibid.

116 Agreement on Sanitary and Phytosanitary Measures, Article 2.2.

117 Marwell, J. C., ‘Trade and Morality: The WTO Public Morals Exception after Gambling’, 81 New York University Law Review (2006), 802 Google Scholar; Diebold, N. F, ‘The Morals and Order Exceptions in WTO Law: Balancing the Toothless Tiger and the Undermining Mole’, 11 Journal of International Economic Law (2008), 43 CrossRefGoogle Scholar; Nachmani, Tamara S., ‘To Each His Own: The Case for Unilateral Determination of Public Morality under Article XX(a) of the Gatt’, 71 University of Toronto Faculty of Law Review (2013), 31 Google Scholar.

118 Wu, M., ‘Free Trade and the Protection of Public Morals: An Analysis of the Newly Emerging Public Morals Clause Doctrine’, 33 Yale Journal of International Law (2008), 215, at 243–248 Google Scholar; Smith, T. M., ‘Much Needed Reform in the Realm of Public Morals: A Proposed Addition to the GATT Article XX(a) “Public Morals” Framework Resulting from China–Audiovisual ’, 19 Cardozo Journal of International and Comparative Law (2011), 733 Google Scholar.

119 Marwell, n. 117, at 824–825, Diebold, n. 117, at 63–66, Nachmani, n.117, 57, Wu, n. 118, at 243–246, Smith, n. 118, 769–773.

120 See the entry ‘moral’ in the Merriam-Webster online dictionary, http://www.merriam-webster.com/dictionary/moral.

121 For a complete elaboration of right circumstances for valid consent to the social contract, see Rawls, John, A Theory of Justice, rev. edn (Oxford University Press, 1999), 10–13 Google Scholar.

122 Vienna Convention on the Law of Treaties, n. 51.

123 Preamble, TBT Agreement.

124 Alexia Herwig and Thorsten Hüller, ‘Towards Normative Legitimacy of the World Trade Order’, in Christian Joerges and Poul F. Kjaer (eds.), Transnational Standards of Social Protection: Contrasting European and International Governance, RECON Report No. 4, 223–253, at 225–226. The feasibility argument suggests that we should adjust the moral position. For instance, if societal wealth is limited, taxation of the rich needs to be used to meet basic needs instead of equalizing opportunities.

125 For such a suggestion, see Nachmani, n. 117, at 56.

126 Panel Report, US–Gambling, n. 61, para. 6.464.

127 Ibid., para. 6.463.

128 Ibid., para. 6.461.

129 Ibid.

130 I realise that the distinction between intra- and extraterritorial measures is not without problems because, as Smith, n. 118, at 766–767 points out, a ban on child pornography protects inside the territory of the regulating WTO member but also outside of its territory. The distinction nevertheless has analytical value if it hinges on which state is principally considered to be responsible to protect the relevant interests at stake.

131 See also Schefer, K. Nadakavukaren's ‘law-enabling’ social regulation in Social Regulation in the WTO: Trade Policy and International Legal Development (Edward Elgar, 2010)CrossRefGoogle Scholar, at 5.

132 For instance, obligations of egalitarian distributive justice are sometimes claimed to arise by virtue of particular forms of human interaction taking place only within the state. See e.g. Nagel, T., ‘The Problem of Global Justice’, 33 Philosophy and Public Affairs (2005), 113, at 120–121 CrossRefGoogle Scholar.

133 Hüller, n. 111, at 119–124.

134 Ibid.

135 Ibid.

136 Howse and Langille, n. 2, at 413–414, Levy and Regan, n. 45, at 48–49.

137 For their concerns, see ibid., at 417.

138 Note that the EU in para. 591 of its first written submission to the panel had also claimed GATT Article XX (b) as a justification of its measure.

139 Panel Report, US–Tuna, paras. 7.437, 7.499.

140 Appellate Body Report, EC–Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1999, para. 118.