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Canadas seal hunt cant find cover in WTO trade laws

ROBERT HOWSE, JOANNA LANGILLE AND KATIE SYKES Contributed to The Globe and Mail Published Tuesday, Nov. 26 2013, 12:13 PM EST Last updated Tuesday, Nov. 26 2013, 12:23 PM EST

The World Trade Organization panel decision on the European Union seal products ban, released Monday, is a landmark vindication of the right to protect animal welfare under international trade law. The panel found flaws in the way the exceptions to the EU ban are administered or defined, but confirmed that the overall ban on seal products can be justified as a reflection of European ethical and moral concerns. No wonder the Canadian government (while declaring the panels ruling to be a victory for Canadian seal hunters) immediately announced its intention to appeal the decision. Canada has, in fact, suffered a resounding defeat. In 2009, the EU banned the sale of products derived from seals, with exceptions for seal products that are the result of indigenous subsistence hunting, marine management culls, and products purchased by travellers abroad. The EU legislation responded to serious public concerns about the pain, distress, fear and other forms of suffering that hunting and skinning cause to seals. The EU has a long history of protecting animal welfare. It has passed extensive legislation regulating animal farming, animal experiments, and animal transportation. It has specified that the EU and its member states must pay full regard to the welfare requirements of animals when passing laws, since animals are sentient beings. These measures, as well as the EUs ban on seal produ cts, have been overwhelmingly supported by the European public. In its claim to the WTO, 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 Canadas 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. The sale of seal products has been banned by the United States since 1972, and more than 30 other countries have since following suit (including Russia, the largest market for seal pelts, which banned seal products in 2011). Canadas 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 labelling scheme were a suitable alternative to ending the hunt.

But the WTO panel rejected these arguments. Canada couldnt demonstrate that there are real-world alternatives that could verifiably make the commercial seal hunt humane. Thus, Canadas central claims against the anti-hunt movement have been rejected by an international adjudicative body. This is not threatened by Canadas appeal, because these are findings of fact by the panel, which the WTOs Appellate Body does not have power to reverse (unlike legal findings). Crucially, the decision defends the rights of WTO members to take action against animal cruelty on moral grounds. The panel joined a broader movement in international law to recognize action against cruelty to animals as a global value, describing animal welfare as a matter of ethical responsibility for human beings in general. And the panel preserved policy space for WTO members to set and pursue their own domestic regulatory agendas, while complying with international trade law. This is critical for the ongoing legitimacy of the WTO, as two of us argued in an article in the Yale Journal of International Law. By contrast, the panels findings that the bans exceptions are improperly administered and that some definitions are discriminatory are not always easy to follow, nor is it clear what commercial harm these aspects of the ban caused to Canada. This is where the WTOs Appellate Body may offer some clarification. Yet Canadas decision to appeal the panels ruling continues an unfortunate trend in the governments foreign policy. Like Canadas 2013 campaign to ensure that polar bears were not added to the global endangered species list, the government continues to fight certain international efforts to protect animal welfare. This trend puts Canada at odds with progressive currents in international law, and leaves the country increasingly isolated. Robert Howse is the Lloyd C. Nelson Professor of International Law at New York University School of Law. Joanna Langille is a visiting researcher at Yale Law School and a doctoral candidate at the University of Toronto Faculty of Law. Katie Sykes is an assistant professor at the Thompson Rivers University Faculty of Law.