I haven’t been writing for almost a month, due to the bar exam (most of which I completely have forgotten by now, a mere week after the exam) and the visiting in-laws. They both suck my entire energy out of my brain, and its hard to say which is worse.
Anyhow, I don’t have many readers (if any at all) in any case but I want to let know myself and be proud that I kept keen ears for the hottest trade news.
First and foremost, there was the TPP; Mexico and Canada were finally invited officially at the Los Cabos G20 summit. There was also the Appellate Body’s half reaffirmation of the US-COOL measure, which both sides proclaimed a victory – a true win-win & pie-gets-bigger example of the globalization (I’m being sarcastic, of course…). And of course, who could have missed the US Supreme Court ruling on the universal health care, the “Obamacare”! It was quite a show – the Cheif Justice seemed determined not to play the partisan puppet and deliberately casted his vote, seemingly to the contrary to his own personal belief and judgement. But isn’t this playing politics and partisan game itself?
All these interesting developments while I was gone, but there is one issue that I warrant myself to comment – Foie Gras. Yes, that’s right, the recent Californian ban on foie gras is my topic of the day, topping the TPP or COOL or Obamacare.
Firstly, I had no idea what foie gras was. Of course, I knew it to be an expensive menu like Caviar, which involved inner parts, like liver, of the creatures that resemble ducks. What I didn’t know is that to make such livers large enough for foie gras, the breeders tube-feed these animals, above and beyond what they can eat, let alone what they want to eat.
Secondly, I was also surprised to find a trade issue in foie gras – it is reported that the French breeders are urging trade dispute remedies against California:
One more surprise why I was tempted to write on this topic – the arguments of the French breeders (opponents of the regulation) are symmetrical to the arguments of the environmentalists and health advocates (often proponents of more regulations), in a sense that they both aim at the substance of the law rather than the trade aspect.
If you ever read my prior posts, you know where I stand on the environmental issues and health related issues (tobacco issues to be specific). I am firm that substance of these issues must be beyond the reach of the trade tribunals like the WTO Panels and Appellate Body. I opined that this was not only for the maintenance of the integrity of the WTO as a trade regulating body, but also for environment and health issues, both of which deserve expert adjudications from specialized organizations. Substituting WTO dispute settlement body for lack of such institutions, in my humble opinion, seemed to invite more harm than benefits in the short-run; and inhibit further developments in the long-run.
Coincidentally, I found myself standing against the environmentalists and health advocates in many of the issues as I was asserting such a view. Often times the measures were poorly designed (if not disguised) towards achieving the stated purpose, yet suspiciously effective in distorting trade. Well, what a coincident that (almost) all the clove cigarettes are from Indonesia!? Or, how strange is it that “dolphin safe” tuna actually kills as many dolphins as the Mexican tuna, which are prohibited from using such a label!?
In the mean time, I have to reiterate that I am not an anti-regulation right-wing supporter each time I oppose these measures. I believe that regulations are needed; and the question is “how” to regulate, not “whether” to regulate. Even the decision not to regulate, in my opinion, is a deliberate “regulation” itself – it is a conscious decision to omit, fully knowing the consequences and net benefits of such non-regulation. However when a particular measure is at issue before the WTO, the only question is whether such a measure, to the extent it relates to the trade, is in violation of the trade rules.
In a rare situation to reinforce my such commitment for trade-centric adjudication before the WTO DSB, foie gras presented itself. The foie gras prohibition opponents are those who support repeal of the regulation. They argue that the measure is unwarranted over regulation of the State over citizens’ dinner tables (not your average dinner table though). In the heart of their complaint is the fact that the ducks and geese have different physical construction than human, and they can withhold the tube feeding better than what our perception would like us to believe.
And of course, all these arguments are irrelevant to the contemplated dispute under the WTO rules. From the perspective of the GATT rules, one would have to find a discrimination in order to invoke Art. I or III (no other Articles seem relevant); to the knowledge of the author, discrimination is not an issue and the French breeders are quoted for admitting that their share of export to the California is negligible.
One may also look to the TBT Art. 2.2, the infamous “more trade restrictive than necessary” clause. It is likely that the future Counsels for the French breeders will find their treasure in this clause, but the defence already looks formidable – the stated objective is an enumerated objective (“animal… life or health”) and the jurisprudence is clear that the State is free to choose its own level of tolerance, including the complete prohibition, so long as the objective is legitimate.
As with my opposition against environmentalists and health advocates in WTO disputes regarding tuna, cigarettes or COOL, I am unconvinced of the foie gras breeders’ arguments directed at the substance of the law, not its trade impact. It may be that ducks and geese are more pain tolerant to tube feeding because they have more flexible esophagus. Even if it does, however, the WTO DSB forum is where trade issues are adjudicated, not a forum of settlement of ducks and geese’s biology.
For this reason, I am of the opinion that this California law should stand, at least under the WTO rules. For those French breeders who want to challenge the Californian law for its content, they must find a proper forum first, which doesn’t appear to be the WTO. Try Beverly Hills.
In the mean time, I too support otherwise lawful animal rights, althought I am not yet a FETA member.