Public moral concerns warrant EU seal product import ban, rules WTO

From ANIMAL PEOPLE, November/December 2013:

BRUSSELS––The World Trade Organization on November 25, 2013
upheld most of the 2009 European Union ban on the import of seal
products, overturning the ban only when applied to “seal products
derived from hunts conducted by Inuit or indigenous communities and
hunts conducted for marine resource management purposes.”
The WTO ruling allows governments permitting seal hunts the
opportunity to redefine commercially motivated massacres as “marine
resource management,” but those governments would then have to
demonstrate a need for such management that would be persuasive to
international regulators.

The WTO held that the exemptions within the EU seal product
import ban for the products of aboriginal hunts are “not equally
available to all Inuit or indigenous communities” and are “not
designed and applied in an even-handed manner.”
Otherwise, the WTO found that the ban “fulfills the objective
of addressing the EU public moral concerns on seal welfare to a certain
extent, and no alternative measure has been demonstrated to make an
equivalent or greater contribution” to satisfying those concerns.
Canadian trade minister Ed Fast announced immediately that
Canada “will appeal to the WTO Appellate Body.” Canada “remains
steadfast in its position that the seal harvest is a humane, sustainable
and well-regulated activity,” Fast said. “Any views to the
contrary are based on myths and misinformation and the panel’s
findings should be of concern to all WTO members.”
Fast’s statement was echoed in the Canadian House of Commons
by fisheries minister Gail Shea and by Inuit Tapiriit Kanatami (Inuit
Communities United) president Terry Audla. “Inuit have always
maintained that the so-called Inuit exemption is an empty box. But our
goal from the beginning has been to overturn the ban itself, not merely
to modify the terms of the exemption,” Audla said.
“The report from the WTO panel is a victory for seals, animal
welfare and Europeans,” said International Fund for Animal Welfare
European Union director Sonja Van Tichelen. “EU leaders can be proud
that they have simultaneously protected seals, represented the needs of
their citizens and respected EU obligations under the WTO. That is not
a simple task.”
Added IFAW seal campaign director Sheryl Fink, “This decision
is welcomed, and it is significant in that the WTO is recognizing
animal welfare as a moral concern that can be legitimately protected
through measures such as trade bans. The WTO ruling should send a
strong message to the Canadian government and sealing industry.
Concerns over the way seals are killed in commercial hunts are found to
be justified, and countries may protect their consumers from these
concerns by regulating trade in seal products.”
Taking effect in 2010, the European Union seal product import
ban was appealed to the WTO by both Canada and Norway. It also applies
to seals killed in Namibia. Russia accounted for about 90% of the
market for Canadian seal products for several years before 2011. Russia
at one time had a domestic seal hunt second only to the Atlantic
Canadian hunt in scale. In 2011, however, Belarus, Kazakhstan, and
the Russian Federation banned both the import and export of harp seal
pelts.
The U.S. banned the import of seal pelts in 1972. Mexico
followed in 2006. Taiwan adopted a similar ban in January 2013.
The 2013 Atlantic Canada seal hunt opened with a quota of
400,000, of whom about 91,000 seals were actually killed by the 844
licensed hunters.
‘In the last two years, Newfoundland and Labrador loaned
Carino, the sole seal skin processor, more than $7 million in taxpayer
money to stockpile seal skins,” said an IFAW statement. “The
landed value of Canada’s 2013 commercial seal hunt was about $2.9
million.”
The 2013 Namibian seal hunt, with a quota of 90,000 adult seals
and 6,000 pups, may have been bigger that the Atlantic Canada hunt, if
the Namibian quotas were met. This is difficult to ascertain, since
Namibia seldom releases sealing statistics and the Namibian seal hunt
has rarely been witnessed by non-participants.

1st ruling on animal welfare

The 194-nation WTO, established by the United Nations, has
never before commented directly on animal welfare in a trade dispute
ruling.
New York University School of Law professor Robert Howse,
University of Toronto Faculty of Law doctoral candidate Joanna Langille,
and Thompson Rivers University Faculty of Law member Katie Sykes in an
analysis for the Toronto Globe & Mail called the WTO decision “a
landmark vindication of the right to protect animal welfare under
international trade law,” and “a resounding defeat” for the
Canadian government.
“The EU legislation responded to serious public concerns,”
Howse, Langille, and Sykes wrote. “Canada argued that the hunt is
humane and that the EU was not sincere in its desire to protect animal
welfare. Typically countries bring disputes to the WTO for commercial
reasons––because their products are unfairly shut out of a
particular market.
“But Canada’s suit was not rooted in commercial
considerations; it knew full well that any commercial concessions won
would do little to shore up the hunt, as the market for these products
has been dwindling for more than a generation,” Howse, Langille,
and Sykes continued. “Canada’s real hope was that by getting an
independent international body to endorse its view that the hunt was
humane, it could win hearts and minds. Or at least it could show that
‘humane’ hunting standards and a labeling scheme were a suitable
alternative to ending the hunt.
“But the WTO panel rejected these arguments,” Howse,
Langille, and Sykes added. “Canada couldn’t demonstrate that there
are real-world alternatives that could verifiably make the commercial
seal hunt humane. Thus, Canada’s central claims against the anti-hunt
movement have been rejected by an international adjudicative body. This
is not threatened by Canada’s appeal, because these are findings of
fact by the panel, which the WTO’s Appellate Body does not have power
to reverse.
“Canada’s decision to appeal the panel’s ruling continues
an unfortunate trend in the government’s foreign policy,” Howse,
Langille, and Sykes concluded. “Like Canada’s 2013 campaign to
ensure that polar bears were not added to the global endangered species
list, the government continues to fight international efforts to
protect animal welfare. This trend puts Canada at odds with progressive
currents in international law, and leaves the country increasingly
isolated.”

Farmed animals

Summarized an IFAW legal analysis of the seal product decision,
“A common but untested belief of many regulators was that countries
were not allowed to impose trade restrictions on the basis of how a
product is produced. This view is now challenged with potentially great
opportunities for the welfare of animals. Although the EU has other
animal welfare based trade restrictions in place, such as a marketing
ban for cosmetics tested on animals and a ban on imports of cat and dog
fur, the majority of animal welfare laws in the EU impose standards on
EU products, but allow the import of products [similar to those banned] from countries with no animal welfare legislation.
“While EU has banned battery cages for egg production, veal
crates, and sow stalls,” for example, “consumers may still find
products from these systems on the shelves, as legislators have been
hesitant and worried” lest the WTO overturn any attempt to exclude
them.
“The WTO decision to uphold the ban should be taken very
seriously by all sustainable use industries, as it may particularly
have broad and unintended impacts for other trade sectors in Canada,”
warned Seals & Sealing Network chair Dion Dakins. “Where do we draw
the line on right versus wrong or good versus bad when it comes to the
products of living resources?”
The WTO decision “does have profound implications for other
animal industries. And that’s not such a bad thing,” commented
Toronto Star national affairs columnist Thomas Walkom. “The WTO’s
morals clause dates back to 1946 and was insisted upon by the United
States. Codified in Article XX of the 1994 General Agreement on Tariffs
and Trade, it is remarkably broad. It allows signatories to the global
pact to pass trade restriction laws necessary for the ‘protection of
public morals’ as well as those required to ‘protect human, animal
or plant life or health.’
“The only limitations on such bans are that they must be
applied equally to all countries and that they cannot act as ‘disguised
restriction(s) on international trade.’ Israel, for instance, bans
the importation of non-kosher meat.
“Europeans in particular are focusing on animal welfare,”
Walkom continued. “Methods of livestock farming that are common in
Canada—such as confining pigs and chickens to small pens or keeping
calves in tiny crates—are under increasing attack in EU countries.”
The Canadian government, Walkom pointed out, “hopes to use
the recently-signed Canada/EU trade treaty to export great quantities of
pork and beef to Europe. The WTO sealing decision underlines the
contradiction here. Something will have to give.”

Might even affect oil

The implications of the WTO sealing decision may go beyond
animal welfare to influence habitat issues.
Mused Michael Babad, editor of the Toronto Globe Mail Report on
Business, “Seals, asbestos, and oil. As a Sesame Street character
might put it, one of these things is not like the other. Yet. The
seal hunt still has some advocates, because someone is still buying
this stuff. Not so for the asbestos industry, which died amid
international pressure because asbestos causes cancer and was banned by
several developed countries in the face of staunch support by the
Canadian government.
“Which leaves oil, the elephant of the three,” Babad
wrote, “thriving but under pressure on several fronts, particularly
where the Alberta oil sands are concerned. Canada is fighting an EU
proposal that would label oil sands crude dirty, and at the same time
is fighting for U.S. approval of the controversial Keystone XL
pipeline.”