Animal Welfare at the WTO: EC-Seal ProductsPosted by Katie Sykes, Guest Blogger on April 5, 2013
The European Union (EU) banned commercial trade in seal products in 2009, in response to overwhelming European public opinion that seal hunting is cruel and unnecessary. Canada and Norway have challenged the ban at the World Trade Organization (WTO). (See the EU’s First Written Submission setting out its legal arguments in defense of the ban here.) Hearings at the "world trade court" in Geneva took place this February, and a decision should be made later this year. The case, known as EC-Seal Products, raises important issues about the interaction of animal welfare legislation and international trade law, and it has implications for other progressive European animal protection laws like the ban on animal-tested cosmetics that came into full force this year.
The European legislation prohibits commercial marketing of all seal products, whether domestic or imported. On the face of it there is no discrimination against other WTO members. But there are some limited exceptions to the ban; for example, products of traditional subsistence hunting by indigenous peoples can still be placed on the market. Canada and Norway say the exceptions discriminate against their products, and that including these carve-outs in the legislation undermines the EU’s claim that its objective is to prevent animal suffering (they say the real purpose is to shut out certain seal products based on where they come from). According to Canada and Norway, protecting animal welfare cannot be the real purpose of the EU law, because in some circumstances that purpose is overriden by other values like the rights of indigenous communities. In reality, of course, virtually all animal protection law is based a similar kind of balancing and compromise between the protection of animals and other ethical and practical considerations.
Canada and Norway also say that the EU ban is more trade-restrictive than needed to address European citizens’ concerns about the cruelty of seal hunting. They propose an alternative: a labeling program to certify that products come from ‘humanely’ hunted seals. They claim that they could sell products into the EU under this alternative system, because their own seal hunts are well regulated to ensure that seals do not suffer unnecessarily. That claim was belied by video evidence presented by the EU at the hearings in Geneva, showing seals in the Canadian hunt suffering prolonged agony. The video evidence underlines what opponents of the seal hunt have been saying for years: given the combination of harsh weather conditions, a remote location, and commercial pressures to bring in as many seals as quickly as possible, the seal hunt is inherently inhumane. The hearings were live-blogged on the International Economic Law and Policy blog by Professor Robert Howse of NYU, who reported that the chair of the WTO panel was so affected by the horrific video footage that he recommended everyone present should avoid having meat for dinner that night. (Professor Howse submitted an amicus curiae brief to the panel, co-written with me and Joanna Langille, which can be found here; see also "Permitting Pluralism: The Seal Products Dispute and Why the WTO Should Permit Trade Restrictions Justified by Noninstrumental Moral Values" by Robert Howse and Joanna Langille.)
Global justice activists and environmentalists often criticize the WTO for prioritizing trade flows over non-commercial values, and often their concerns are not misplaced. But the WTO’s adjudication system is sophisticated and well respected, and in many cases it has struck an appropriate balance between fair dealing among members of the global trade system and the legitimate principles that WTO members seek to uphold in their domestic legislation. Everyone who cares about animal law should watch the EC-Seal Products case with interest, and see whether the WTO gets the balance right in this one.
Katie Sykes is a JSD student at the Schulich School of Law at Dalhousie
University in Canada