Multiple Policy Objectives Before WTO Courts: Strategy and Defence

Abstract

This work examines the legal nature of policy objectives and how multiple objectives can be successfully defended before WTO Courts. Principally, in light of the EC – Seals Panel and AB reports by means of contrasting them with previous TBT and GATT jurisprudence and the relevant scholarship. This article argues that the EU strategy failed to defend the indigenous communities objective properly before WTO courts, thus exiling them outside of the scope of exceptions of the GATT and TBT Agreement. Admittedly, the AB had enough evidence to find that the Inuit objective was part of the European measure. Nonetheless, the European defence read together with the AB report seem to create a false dilemma whereby Europe could have mainly protected either animal welfare (seals) or indigenous communities (Inuits), but not both at the same time. However, jurisprudence shows that Members can pursue as many legitimate objectives as they deem necessary, even simultaneously, to the extent they consider appropriate. The defence of these objectives play a pivotal role on achieving a successful outcome in WTO Courts, only if the design and application phase of the policy are part of the same strategy. Policymakers and lawyers need to be sensitive to each one of the elements in these stages, as well as in a holistic fashion.

Keywords: legitimate objective, indigenous communities, animal welfare, public morals, hierarchy, defence strategy