To understand how this happened, one needs to go back to the origins of the “seal products case”. The “seal products case” concerned a 2009 EU Seal Regulation by which the Union prohibited the placing of seal products on the European market. The reason was simple: seal hunt techniques were considered by the Union to be unnecessarily cruel. That very same year, the decision was challenged by Canada, soon to be followed by Norway. After unsuccessful consultations, a Panel was set by the Dispute Settlement Body (DSB) of the World Trade Organization (WTO) (see WTO summary of the Case).
It is not the first time unilateral decisions to prohibit importation of animal or animal products are challenged. The general WTO jurisprudence regarding the animals is far too complicated to be explained in this post. (If curious, see the very clear summary made by Peter Stevenson here). Suffice to say that animal welfare, when confronted with trade interests often lost the game. But in the case known as “Measures Prohibiting the Importation and Marketing of Seal Products”, animals did win. For the first time, the Panel (and the Appellate Body) recognized that moral concerns for the welfare of the animal could justify a ban of certain products on the territory of a Member of the WTO. This is a very important victory for animal defenders. It means that animal trade can be legally stopped every time there is a sufficient moral concern in a given state or group of states.
The decision of the Appellate Body was rendered in May 2014. Almost a year ago. The real novelty is therefore not the WTO decision in itself – but its consequences.
These consequences regard the EU. Because even though WTO recognized the legality of the ban, the Appellate Body still condemned the EU for the way it drafted the exceptions. The EU provided two exceptions. The first one regarded maritime resources management. Seal hunt was still allowed in order to regulate seal population in certain areas. DSB found that these hunts could not be differentiated from the commercial hunt and were therefore discriminatory. The second decision regarded the traditional hunt conducted by indigenous communities. In particular, the Appellate Body:
1. “found that the European Union did not show that the manner in which the EU Seal Regime treats seal products derived from (indigenous communities) hunts as compared to seal products derived from “commercial” hunts can be reconciled with the objective of addressing EU public moral concerns regarding seal welfare” (Appellate Body Report, § 5.338).
2. “found considerable ambiguity in the “subsistence” and “partial use” criteria of the (indigenous communities) exception. Given the ambiguity of these criteria and the broad discretion that the recognized bodies consequently enjoy in applying them, seal products derived from what should in fact be properly characterized as “commercial” hunts could potentially enter the EU market under the (indigenous communities) exception” (Appellate Body Report, § 5.338)
Last month, the EU adopted the proposal to amend its regulation in order to bring it into compliance with the WTO decisions.
As to the first exception, the EU purely removed the right to conduct seal hunt for maritime resources management. Seal hunt, even when conducted to regulate maritime resources, therefore falls back into the lex generalis: total prohibition (See EU regulation proposal, § 4).
As to the second exception, the EU adopted stricter regulations to ensure that the seal hunt conducted by indigenous communities were not serving other (and especially commercial) purposes. The new regulation also insists on their obligation to limit animal suffering. Here is what the new text of the regulation says:
“The placing on the market of seal products shall be allowed only where the seal products result from hunts conducted by Inuit and other indigenous communities, provided that the following conditions are all satisfied:
(a) the hunt has been traditionally conducted by the community;
(b) the hunt contributes to the subsistence of the community and is not conducted primarily for commercial reasons;
(c) the hunt is conducted in a manner which reduces pain, distress, fear or other forms of suffering of the animals hunted to the extent possible taking into consideration the traditional way of life and the subsistence needs of the community” (see the modification of article 3 in the EU regulation proposal).
After passing through a WTO filter, the EU seal regulation actually ends up being more favourable to animal welfare that it was before. An unexpected but certainly pleasant surprise for animal defenders around the world.
Vincent Chapaux – March 2015
NB : The seal drawing is taken from the work of Lorraine Loots who does an amazing job that you can both see and buy here.