(Brussels)– Does protection of public morality and the life and health of animals justify restrictions to trade? Should international trade trump citizens’ concerns? Or are restrictions on seal products justified by the necessity to respond to the moral concerns that EU citizens have about the welfare of seals? These and others were the questions examined last week by a World Trade Organization (WTO) panel during a three-day hearing on the EU ban on the sale of seal products in Europe.
A few years ago, the images of seals being inhumanely killed and sometimes skinned alive led to a massive public outcry in Europe about the cruelty involved. European citizens mobilized to condemn the seal hunt and ask for seal products to be banned in the EU. The result was the 2009 EU seal regulation banning the import of products from commercial seal hunts; full enforcement began in August 2010.
Since that time it is illegal to import and place products from seal hunt on the EU market. The EU ban is targeted at commercial seal hunts only, mainly carried out by three countries: Canada, Norway and Namibia. The legislation exempts products coming from subsistence hunts carried out by indigenous Inuit communities and allows exceptions for trade in by-products from sustainable marine resources management. These exceptions represent non-commercial use of seal products.
Noteworthy is the fact that the European Parliament voted overwhelmingly in favor of the ban – 550 out of 736 members; and the ban is widely supported by the European public. In other words, it is considered that the Europeans have made a democratic choice to express in law their views that the seal hunt is cruel and morally indefensible. In the words of Sheryl Fink, International Fund for Animal Welfare’s (IFAW) Canada Seals Campaign Director, “the EU seal legislation represents a huge animal welfare victory and since its approval the number of seals killed in the inherently cruel commercial seal hunts has plummeted.”
EU ban under threat
But the ban is now under attack. The government of Canada teamed up with Norway to attack the EU law at the WTO, the institution in charge of regulating international trade. They claim that the EU is contravening international trade rules. The WTO aims at promoting trade liberalization and creating a level playing field for all countries by defending the principle of non-discrimination. Its rules nevertheless cater for the possibility for national authorities to introduce trade restrictions if motivated by public morality, animal health and welfare. Other concerns such as the environment, are based on the condition that the policy does not discriminate between countries and that it is not a disguised form of protecting domestic products.
This leaves us with a first bizarre situation where ensuring trade is the rule and animal health and welfare and public morality are the exceptions. This, in itself, is revealing of what we have made of today’s world; should trade a priori prevail any other consideration, including public morality and animal life? And how come it is a trade organization that has been entrusted with the competence and the responsibility to decide on what should be the priority?
During the three-day hearing that took place last week, the WTO panel heard the different parties and their statements; each delegation made his case and had the possibility to ask questions. What made it particularly interesting is the fact that it was the first time ever that a WTO panel was examining an animal health issue. “The WTO is still struggling with a lot of questions in this kind of case”, says Sonja van Tichelen, IFAW’s European Regional Director in an interview with Mint Press. “You could see that by all the questions they asked during the hearing. For example, to what extent is a country allowed to refuse goods produced in conditions considered as unacceptable by its citizens? What is the level of public concern needed to be considered? What is the difference between public concern and public opinion?”
“This case is particularly important because it will determine to what extent citizens can influence the societies in which they live,” Sonja van Tichelen adds. “Can citizens in Europe and elsewhere stop something which concerns them greatly, in this case, trading in seal products from the inherently cruel commercial seal industry, or does international trade trump their legitimate concerns”? The potential implications of the WTO-panel’s decision are hence much wider and far-reaching than the seal hunt: other issues of animal welfare could be affected, like for example cosmetics that have been tested on animals.
The Canadians argue that the EU could have dealt with its citizens’ concerns through a system of certification and labeling to show that seals were killed without unnecessary cruelty. But it would involve close inspection of the hunt; and this appears almost impossible given the vast geographical areas concerned and the difficult conditions. Additionally, “even when cruelty is caught on camera and submitted to authorities, technical issues mean that prosecution is difficult,” Sheryl Fink argues.
This leads us to another question: why does the EU need a ban at all? If European consumers dislike the way seal products are obtained, they can decide not to buy them. In the end, the result would probably be the same. “Well, Sonja van Tichelen argues, the public outcry at the cruel killing of seals was such that the European legislator felt a public policy decision was necessary to ensure that EU citizens would not unwittingly be made complicit in that cruelty through their purchases. It is like a public health safety issue, you know: at one stage, it becomes so big that the authorities must intervene, that you cannot simply leave it to the consumers.”
Canadian challenge not about jobs
If the WTO-panel condemns the EU ban, it could open the way to more challenges, including against Russia and Taiwan, two countries that have recently implemented regulations against the import of seal products. And perhaps even against the United States that banned the trade in marine mammal products in 1972 based on their Marine Mammal Protection Act (MMPA). Strangely enough, this ban was never contested by Canada. Could it be that Ottawa does not want to antagonize its main trade partner?
But then, what is the Canadian challenge really about? It is not about protecting industries or jobs; although the seal processing industry and the Canadian Sealers Association say seal products harvested in Newfoundland and Labrador provide significant economic benefit to the region, the reality is that the Canadian commercial seal hunt is nearly bust. The industry requires government-funded life support to survive. This year, the provincial government provided a 3.6 million dollar loan to the Canadian seal processing industry, “in order to protect the future viability of the province’s seal hunt,” Canadian Minister of Fisheries and Aquaculture, Darin King, announced.
In reality, this is more about a principle: what is at stake for the Canadians here is protecting the seal hunt’s reputation in other markets. At a time when Canada’s seal industry is hoping to have access to the Chinese market, it views the WTO challenge as key to stopping the hunt’s pariah image from spreading.
The case is far from being closed. A second hearing is planned for April; and the panel’s report is not expected before September. And if the parties to the dispute are not happy with the decision, they can still lodge an appeal with the WTO’s Appellate Body. This body resembles a court of appeal and its decisions are final and binding. In human rights issues, countries have not yet managed to find an international system as efficient and effective.
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