EU seal ban under the microscope once again in Geneva

27 May 2013

The debate over the European Union's ban on seal product imports ramped up on 29-30 April in Geneva, as the WTO dispute panel tasked with the case held its second hearing on the emotionally charged issue. The development came just days after the Luxembourg-based European Court of Justice - in separate proceedings - issued its own ruling last Thursday upholding the controversial measure.

Both cases revolve around a 2009 European Commission (EC) regulation which banned the sale of seal products in all EU member states. Proponents of the ban argue that the commercial sealing operations targeted by the measure are "inhumane," imposing pain and emotional distress on the animals that cannot be consistently avoided. The ban, they say, is necessary on the grounds of public morality, specifically with regards to animal welfare.

The ban has been challenged at the WTO by Canada and Norway (DS400, 401), who have argued that the prohibition is unjustified, and also unfairly discriminates against their industries relative to sealing that takes place in certain EU member states. Ottawa, for instance, argues that Brussels' regime blocks 90-95 percent of Canadian seal products, while allowing in "virtually all" Greenlandic seal products and all Swedish and Finnish seal products.

Oslo, for its part, also argues that the EU ban actually makes it difficult for Norway to sustainably manage marine resources. With harp seals being a top predator in the marine food chain, Norway says, ecosystem management principles dictate that sometimes it may be necessary to reduce the population of these predators.

A previous WTO hearing had been held in February on the subject, which drew several animal rights activists and sealing advocates alike to the global trade body's Geneva headquarters. However, this week's hearing, which was also open to the public, attracted a noticeably smaller crowd.

Evidence of inhumane process?

At this week's WTO proceedings, both sides clashed strongly over the reliability of the evidence each side was citing to prove - or disprove - whether seal hunting can be conducted in a humane manner.

"The complainants' scientific case is built upon a false premise," the EU said. "Indeed, the complainants' contention that seals can be killed consistently in a humane way is entirely dependent on their unfounded claim that both shooting and the use of the hakapik [a type of club used in seal hunting] are, themselves, effective and reliable killing methods."

The EU showed video footage to demonstrate the point that sealers cannot always tell if a stunned seal is conscious or not when they are hooked by gaffs and then dragged onto a boat. Canada, however, argued that video evidence has not proved to be reliable, and that some of the other evidence cited by the EU comes from studies that were conducted with financial support of animal welfare groups, and were produced by "veterinarians with limited prior experience with seals."

In the question-and-answer period later, Canada also noted that while video footage can be used to show evidence of bad practice, as the EU had done, it could also be used to provide evidence of good practice, which was not included. It may have been, "in Hollywood parlance, ‘left on the cutting room floor'," Canada said.

Exceptions return to the fore

The EU Seal Regime does allow seal products to be sold on the bloc's market in three circumstances: those products that come from hunts conducted by indigenous peoples, known as the IC exception; products from hunts that are conducted with the goal of sustainable management of marine resources (SRM or MRM exception); and those products that are brought in by tourists.

The IC and marine resource management exceptions had come under fire during the previous hearing, and were again raised this week. Canada, Norway, and various third parties have argued that since the ban aims to protect seals, it should apply in all circumstances.

"It is not... sufficient for the EU to explain just that it bans Norwegian products to protect public morals or animal welfare. It must also show that its decision to carve out products from Greenland and the EU is more than a political choice," the Norwegian statement said.

In response, the EU said on Monday that these exceptions "reflect the outcome of the balancing of the welfare of seals and other interests, which is part of the standard of morality that the EU Seal Regime as a whole seeks to uphold." Specifically, those exceptions do not raise "the same moral concerns as the products of commercial hunts."

Canada, however, asked later in the hearing how the IC exception was developed, noting that Canada's Inuit are on record saying that they were not "meaningfully consulted" and are unhappy with the current measure.

With regards to the marine resources management exception, Norway also highlighted during the question-and-answer sessions the difference between small-scale and large-scale hunts. If the benefit for humans and other animals outweigh the suffering of seals in smaller hunts, Norway argued, then it should be no different for large-scale sealing. The EU, however, argued in response that "scale is relevant" and that "size does matter."

Less trade-restrictive alternative?

The parties also debated whether or not there was a less trade-restrictive alternative to the EU's seal regime that might still meet the same objectives.

Canada, for instance, had outlined a certification and compulsory labelling scheme that would, it says, be rooted in an animal welfare standard. Ottawa argues that this standard would exceed the one used within EU member state Britain in deer hunting - a practice that, it argues, is comparable to seal hunts.

Norway has also suggested three alternatives that, it argues, would be less restrictive, "but would contribute to a greater extent than the EU Seal Regime to the EU's legitimate objectives regarding animal welfare and sustainable resource management."

However, the EU argues that the complainants' proposed alternative measures "would fail to make an equivalent contribution to those objectives because seals cannot be killed humanely on a consistent basis." While the complainants have said that their measure would provide more protection, given the exceptions in the EU seal regime, Brussels argues that it would actually be "more trade restrictive."

The WTO dispute panel reviewing the cases is expected to release a report by late summer. The European Court of Justice case, meanwhile, might not yet be over. Under EU law, the complainants are entitled to bring an appeal before the ECJ within two months of the ruling, focusing only on points of law.

ICTSD reporting.

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