As reported in the Winter 2014 AWI Quarterly, a dispute resolution panel of the World Trade Organization (WTO) reached a landmark decision this past November in a case brought by Canada and Norway against the European Union (EU) because of the EU’s ban on imports of commercial seal products.
The EU’s 2009 Seal Regulation established two major exemptions to the ban. It allowed the import of seal products from hunts that were (1) conducted by indigenous people for subsistence purposes or (2) non-commercial in nature—for example, to protect fisheries from predation by seals. As a result, most seal products entering the EU come from Inuit hunts in Greenland and non-commercial culls in Sweden and Finland.
Canada and Norway, whose commercial hunts were shut out of the market by the ban, brought an anti-discrimination case to the WTO, based on the fact that Greenland’s seal hunts have strong commercial elements and also use inhumane methods. They lost in early 2013, when the WTO panel ruled that—while the exceptions to the ban do violate anti-discrimination rules—the ban on the importation of seal products was nonetheless valid because it fulfilled the objective of addressing the European public’s moral concerns about seal welfare. Canada (whose commercial sealing industry kills tens of thousands of seals annually for their fur, oil and meat) and Norway appealed the ruling, hoping to force the EU to open its valuable market to their products.
Their hopes were dashed in May of this year when the WTO’s appellate body reached a final decision in favor of the EU. The appellate body also found the EU’s indigenous exemption to be discriminatory—although its legal reasoning was slightly different from that of the panel. However, it affirmed that the import ban was nevertheless justified under the public morals exception.
Animal protection groups hail the decision as a significant victory—firmly establishing that it is legally defensible for a country to restrict international trade to protect animal welfare for moral reasons. However, for the seals (and for the future of the indigenous exception), the decision still leaves several questions up in the air. For example, what will the EU do to make its import ban WTO-compliant, and ensure that seal products derived from hunts that could be properly characterized as commercial (including those in Greenland) do not enter the EU under the indigenous exception?
One option to address the discrimination inherent in the indigenous exemption is to actively facilitate greater access to its market for seal products from Canadian Inuit hunters. Alternatively, the EU could eliminate the indigenous exemption altogether, closing the door on products from tens of thousands of seals hunted annually in Greenland.
The EU could also expand its existing certification scheme, or develop a new one, to ensure that seal products from subsistence hunts are easily recognizable by consumers, while also ensuring that hunting methods address animal welfare and conservation concerns—including the high proportion of seals that are shot but sink before they can be recovered. However, in considering this option in the original ruling, the panel acknowledged the challenges of monitoring compliance with the standards established by certification schemes and was skeptical that such a system, even if it were to adopt the most stringent animal welfare requirements, would effectively address EU public moral concerns regarding seal welfare.
The EU has promised to study the appellate body’s findings carefully as it decides how to proceed. We will provide updates in future editions of the Quarterly.