Alexia Herwig

Too Much Zeal on Seals? Animal Welfare, Public Morals, and Consumer Ethics at the Bar of the WTO

The Seals Regime at issue in EC–Seals pursued conflicting policy objectives of animal welfare, protection of public morals, Inuit, and the marine environment through regulation of product composition and hunting. The panel’s TBT findings are problematic. The panel uses the term ‘related’ PPMs in the definition of technical regulations of content and does not distinguish and sequence the legal tests of TBT Articles 2.1 and 2.2 clearly enough. It fails to analyze properly how the necessity analysis should be performed for a multipurpose policy and reduces the ability of WTO members to defend them. The panel also adopts an unduly empiricist definition of public morals and legitimate objectives. This article argues that the content of public morals and legitimate objectives in Article 2.2 should be informed by moral philosophy. Its analysis suggests that collectively binding regulation of ethical standards can generally not be considered to be about public morals.

The WTO and the Doha Negotiation in Crisis

Is the World Trade Organization (WTO) in a legitimacy crisis and might the protracted Doha negotiations be evidence of it? This article understands the notion of ‘legitimacy crisis’ as a severe threat to an institution’s viability due to fundamental shifts in the legitimising ideas underlying the institution, an external threat to its values or its ability to fulfil its functions. It contends that the WTO is not yet definitely in a legitimacy crisis because the Doha negotiations still reveal the commitment of the WTO members to the values and legitimising ideas of the WTO. Perception of a legitimacy crisis fuels the negotiation of free trade agreements (FTAs) amongst key WTO members, which could be used to advance the Doha negotiations, force developing countries into agreement and shape the outcome of the negotiations in favour of developed countries. Such an outcome, this chapter cautions, could be the real onset of a legitimacy crisis if developing countries gain very little from a Doha agreement. To prevent a crisis and move the negotiations forward this chapter suggests that the different trade-related development needs of developing countries need to be assessed more seriously and developing countries need to be enabled to address serious adverse consequences linked to any trade liberalisation they undertake.

Risky Apples Again? Australia – Measures Affecting the Importation of Apples from New Zealand

The section on WTO law highlights the interface between international trade law and national risk regulation. It is meant to cover cases and other legal developments regarding the SPS, TBT and TRIPS Agreements and the general exceptions in both GATT 1994 and GATS as well as to inform about pertinent developments in recognized international standardization bodies and international law. Of recurrent interest in this area are questions of whether precautionary policies can be justified under WTO law, the standard of review with which panels and the Appellate Body assess scientific evidence and the extent to which policy can and should influence risk regulation.

Health Risks, Experts and Decision Making Within the SPS Agreement and the Codex Alimentarius

The World Trade Organization (WTO) Agreement on the Application of Sanitary and Phytosanitary Measures gives experts an important role in risk regulation. The risks in this Agreement are narrowly framed in terms of mortality, morbidity or economic damage. However, the impact on life and health is not the only normative or justice-related factor that policy-makers may wish to take into account. For example, the fact that a risk affects people who cannot choose or have difficulty avoiding the risk (e.g., children or the poor), that it results in early death of a large number of people or that it is an under-researched risk are also relevant issues. This chapter develops the view that the rational empirical basis of an SPS policy ought to be judged not only according to the epistemological standards of health experts, but also on the basis of the normative characteristics of the complete regulatory risk. Where a risk presents multiple aspects of justice, the policy maker should be entitled to introduce margins of safety in addition to what the technical health experts deem strictly necessary. These problems of justice may require consulting experts from different scientific domains than those customarily involved in health policy making, such as economists, marketing experts or psychologists, in order to establish a sound factual basis for normative judgment. In contrast, where a health risk presents fewer additional problems of justice, the policy maker should defer to the health expert’s assessment of the risk. Article 1.1 of the SPS Agreement1 applies to the so-called ‘SPS measures’, which protect against a specific set of enumerated human, animal and plant health risks.As this chapter shows, framing risk in this manner makes it difficult to accommodate the multidimensional nature of risk and results in the circle of relevant experts being drawn unduly narrowly. For related reasons, the Appellate Bodys decision in Continued Suspension risks giving either too much or too little policy space. In that decision, the Appellate Body held that a members level of protection could influence which type of evidence should be sought from the experts and thus ultimately impacts the question whether scientific evidence is sufficient. The problem arises when the policy-maker seeks evidence on aspects of the risk not covered by the definition of a risk assessment in the SPS Agreement. A panel or the Appellate Body might then either have to conclude that the evidence is nevertheless sufficient for the purpose of the risk assessment or give carte blanche to WTO members to ignore the obligations of the SPS Agreement merely upon the invocation of concerns not addressed by the definition of a risk assessment.

Symposium on TTIP Leaks ∙ TTIP Regulatory Cooperation

The leaked TTIP documents reveal that the EU and US are discussing the introduction of a detailed set of procedural requirements for the adoption of regulatory measures. Default provisions are set forth in the chapter on regulatory cooperation, applicable to goods and services. More specific provisions are being negotiated in the chapters on technical barriers to trade and on sanitary and phytosanitary measures. If they conflict with the regulatory cooperation chapter, they prevail. This article analyses the regulatory cooperation chapter insofar as it pertains to trade in goods but to the exclusion of SPS matters and anything provided in the TBT chapter itself. The questions this article examines are to what extent the TTIP proposals expand upon the obligations the two parties have already taken on under WTO law and to what extent the resulting regulatory coordination is consistent withWTO law. It will be shown that the US proposals on procedure may constrain substantive regulatory discretion beyond what applies under the GATT and TBT Agreement of the WTO. It will alsobe shown that the needs to conduct trade impact assessments and a detailed explanation of the necessity of measures anticipate a legal challenge to necessity and will provide information of much use to complainants in meeting their burden of proof.

Symposium on the EU-Seal Products Case ∙ Regulation of Seal Animal Welfare Risk, Public Morals and Inuit Culture under WTO Law: Between Techne, Oikos and Praxis

The EC-Seals case raises a number of interesting issues for scholars researching in the broad area of risk regulation. This symposium addresses a selection of them through innovative, analytical contributions whose goals are to test central assumptions and question the logic of the findings and to bring fresh solutions to problems faced by the Appellate Body and the panel. In keeping with this analytical focus, this introduction to the symposium will not just present a summary of the key legal findings. Instead, it attempts to draw some further conclusions from the different contributions, to place the contributions in their broader legal context and to make connections between aspects (not) decided in Seals and scholarship on risk regulation, more generally.

Competition, Not Regulation – or Regulated Competition?

GATT Article III:4 aims at equal treatment in respect of competitive opportunities of imports and competing domestic products by preventing protectionism. A key question is whether regulations with heavier burdens on imported products than on domestic products and a valid regulatory purpose are consistent with Article III:4. Inquiry into regulatory purpose under Article III:4 would allow by-passing Article XX whose list of regulatory objectives is a closed one and which puts the burden of proof on the defending WTO member. In EC-Seal Products, the Appellate Body has rejected any role for the regulatory purpose inquiry under Article III:4. This article shows why a purely empirical definition of likeness and of less favourable treatment as disparate impact cannot logically lead to a finding of a violation of Article III:4. It then argues that regulatory purpose continues to play a role under Article III:4 because of the centrality of the notion of competition. It proposes to frame that competition as perfect competition. It shows that the adoption of perfect competition as the evaluative benchmark for all of Article III:4 makes better legal sense than starting from imperfect competition for the likeness analysis and perfect competition for the less favourable treatment standard, as is proposed in the literature. It also shows that even in case where imperfect competition is used as the sole benchmark for both parts of Article III:4, an assessment of how regulation interacts with competition continues to play some role.

International Trade, Fairness, and Labour Migration

Abstract This paper aims to show that fairness in trade calls for relaxing existing WTO rules to include a greater liberalisation of labour migration. After having addressed several objections to global egalitarianism, it will argue, first, that the world’s rich and the world’s poor participate in a same multilateral trading system whose point is primarily to reduce trade barriers, and hence to establish global economic competitions, in order to raise their standards of living; second, that these competitions are subject to requirements of formal and substantive fairness; and, third, that the substantive fairness of the competitions that are taking place in the field of trade in goods is likely to require a greater liberalisation of labour migration, especially low-skilled labour from developing countries.

The precautionary principle in conflicts-law perspectives

In this contribution, we pursue two objectives. The first is to explore a new potential of the conflicts law approach which has been proffered as the appropriate constitutional form for transnational law. The second is to discuss in an exemplary way instances of a conflicts law approach or a lack thereof in the jurisprudence of World Trade Organization (WTO) dispute settlement bodies and inEuropean law dealing with the precautionary principle or with legal norms reflective of precautionary thinking. We do not aim to give an exhaustive overview of how the relevant laws and tribunals deal or have dealt with the precautionary principle or norms based on it. This, however, does not mean that the cases were selected at random. The cases we discuss are of exemplary systemic relevance for how the balance between trade and nontrade (health and environmental) concerns was struck in the legal texts under consideration.Our contribution proceeds as follows: we first develop the main tenets of the conflicts law approach and demarcate it from rivalling approaches. We believe that this critical contrast will not only help to illuminate the specifics of our approach but also shed new light on the competing projects. We argue that ‘global legal pluralism’ as defended by Nico Krisch has affinities with conflicts law but remains amorphous and fails to realise that precisely the discrepancies between different types of orders can be reconstructed in conflicts-law perspectives. Supranational decision-making as advocated in the work of Giandomenico Majone overlaps with our thinking in important respects and one can even – certainly to Majone’s surprise – be reconstructed in conflicts-law terms; we argue, however, that Majone’s distinction between a supranational commitment to efficiency and regulatory policies which require democratic legitimacy cannot be upheld. This leads us to propose conflicts law as a ‘third way’ in which law addresses the political at all, and between all, levels of governance. Our approach is not, however, meant to offer ready-made answers to the broad variety of European and WTO conflict constellations. It presupposes instead a procedural notion of law which seeks to promote a deliberative mode of conflict resolution.Next, we submit that the precautionary principle can be understood as a conflicts law device and we show the emergence of the principle in European law as a way to manage diversity. In the final part of this chapter, we turn to the examination of pertinent, exemplary jurisprudence. We discuss the WTO Panel report in EC – Biotech, the Continued Suspension reports and the Temelin judgment of the European Court of Justice (ECJ).