The public viewing room for the hearings is vast, sunken, dark-it makes the screen on which the images are displayed seem like an old-fashioned camera obscura. I am reminded of Plato’s cave. Small cluster of observers huddle in the different aisles of seats—like the gangs and cliques in my junior high school in their various corners of the playground. The cinematographic technique for presenting the hearing could well be the contrivance of an anti-WTO activist, bent on proving the process is inhumane, mechanical.The angle is such that only the fuzzy shapes of living figures are visible, no faces or identifying features. How different from the meaning of justice being seen to be done in the mythology of the trial so dear to us North Americans, with our addiction to "Law and Order" reruns-being able to look into the face of a witness or an advocate and gauge their credibility.
And when the EU video evidence was mounted, the contrast was arresting. The vague outlines of those arguing and judging this matter were replaced with the high-definition cinema-verite suffering of innocent animals, writhing and convulsing in apparent agony because the conditions of the hunt do not permit a quick, painless kill. The faces of the seals were in full focus,unlike those deliberating their fate.
But it was not just the cave of the viewing room that was reminiscent of (at least the surface of) Plato’s Republic. So was the main tack evident in the first half of Canada’s presentation: “sound science” (the philosopher-kings) vs. the supposedly ignorant demos surveyed in the opinion polls offered in evidence by the EU. But it’s no accident that you have to be a democracy to join the EU; “science” as an absolute standard for politics belongs to a periods of history that the EU aspires to overcome. Canada sought to entrap the EU in a battle of scientific experts about what is or isn’t humane-but as the EU would eventually get to state, the level of protection, what is humane or not, isn’t a determination for scientists but for citizens.
And Canada, in attacking the video evidence of the EU let slip something that is devastating to their case, especially that less-trade restrictive alternatives are available: the monitors in question did not, it seemed, have a license to observe the hunt, and therefore, Canada hinted, couldn’t get close enough to observe what was really going on. But who has the discretion to grant the license? Why Canada itself. In other words, Canada is the exclusive gatekeeper of the possibility of gathering the kind of evidence that Canada would consider as credible or truly probative of whether the hunt is humane. Canada predictably claimed that the EU’s scheme is incoherent because it serves a number of different objectives. I guess that makes 90% of legislation in most (or all) liberal democracies incoherent. If you want to immunize your laws from challenge from Canada, then best to rule despotically-make sure each legal regime dictates an absolute principle, without any balance, exceptions or limitations. Odd that Canada’s own constitution states that even fundamental rights and freedoms are subject to such limitations as are demonstrably justifiable in a free and democratic society. When I was (briefly) a Canadian civil servant, the lawyers in the foreign ministry and those in justice actually talked to one another.
Norway pushed the theme of consistency to even greater extremes than Canada, using pejorative terms like “patchwork” to describe a regime with multiple, interlocking objectives; according to Norway, in order to qualify as a moral rule or norm, it cannot have exceptions but must be an absolute: has Norway actually looked at some of the instruments to which it is a signatory, which state moral rules or norms such as those of human rights, but which contain numerous limitations clauses (e.g. the European Convention on Human Rights)?
But Norway also admitted that its claims of violation were based upon speculations about how the scheme was “expected to operate”, who was “expected to qualify” under the exceptions. Thus, Norway (as well as Canada, in its written submission) concedes that its case is not really an “as such” case; the design and structure of the scheme is not the basis of the claim of de facto discrimination but rather that it the regime “as such” will be implemented in the future in a WTO-inconsistent way, based upon assumptions of bad faith on the part of EU officials in the performance of their WTO obligations.
On the other hand, the testimony of a veterinary expert and a hunt inspector from Norway seemed genuine and this was the only effective part of either Canada’s or Norway’s presentations. Both of these individuals made a plausible case (if one abstracts from any contrary evidence) that Norway really does care about ensuring the seal hunt is humane, that it takes the trouble to station inspectors throughout hunting areas, and that Norwegian hunters are both legally bound and effectively trained to hunt humanely, such that the kill in the overwhelming majority of cases is quick, if not instantaneous. The question though for the panel is not whether to accept this testimony as credible but rather (as I shall explain in a subsequent post) whether the EU as a matter of WTO law is required to trust, for purposes of achieving its own level of protection, Norway’s account of its own regulatory practices. The training of the hunters and the competence of the inspectors are matters in Norway’s competence and control, not the EU’s. Norway sought to impugn evidence the EU relied on to establish that it could not really trust that the hunt was humane, on the basis that it derived from a study of an animal rights group and thus was not independent. But is the evidence of an inspector who acts for Norway, and who has an apparent interest in defending his own capacity to ensure the humaneness of the hunt and that of his government, more independent? At least the animal rights group has no material interest or personal self-interest in finding the facts that it does. I don’t say this to suggest that the inspector was insincere: as I observed, he seemed quite genuine, though of course how much he can look from the outside or dispassionately on the strengths-and weaknesses-of the system of which he is a part is a big question.
The core of the EU's presentation was its video footage of the repeated failure of Canadian sealers to ensure that animals were rapidly made unconscious and thus did not suffer intensely before dying. The video, narrated by a distinguished Cambridge scientist, is too horrible for me to describe it with greater precision or detail. What’s abundantly clear is that these are not isolated cases, but a substantial number of seals are left in agony. You can debate the numbers, but as the EU suggested plausibly, as a matter of public morals a threshold is crossed beyond which European values cannot have truck or trade with this slaughter.
At the end of the day, the chair of the panel cautioned anyone who was in the room against going out and eating meat for dinner. He suggested that he was opting for Raclette (assuming, I guess, that the animals that provide the milk for the cheese are humanely treated). For me, the images in question, however awful and dehumanizing in what they depict, don’t prove that animals can’t be slaughtered humanely or that we are wrong to kill them at all. They also don’t mean that animal suffering is always unacceptable, despite the nature of the human interests or needs that it serves. Finally, the Cambridge scientist had to explain that in many cases the delay in rendering the animals unconscious or dead was not due to reckless indifference or intentional infliction of suffering by the sealer but the inevitable outcome of their choice to pursue more commercial gain, hunting despite conditions that would not allow them to ensure humane treatment. What renders that cruelty is the choice of commercial gain, or the added commercial gain from hunting even when and where the conditions don’t allow humane treatment to be ensured, over preventing intense suffering of the animals. Where the trade-off is not giving up some added revenue from more kills, but foregoing necessary marine management policies or giving up a traditional means of subsistence, the moral calculus is obviously different.
After the hearing, someone seated near them mentioned to me that a group of observers they assumed were from Namibia (a Third Party that supports seal hunting) were laughing and giggling while watching the images of animals being left to suffer by Canadian seal hunters (the group I was told were the Canadian industry reps were more discreet from my observation, only occasionally, toward the end of the video, appearing to make light of what the animals were going through-but of course they might have been amusing themselves with unrelated witticisms, we can’t know for sure). Before we rush to judgment, we have to remember that different societies view animal suffering differently. International norms are emerging, that’s very clear but that’s recent. Pluralism means the WTO itself can’t impose its own set of beliefs about animals, either on societies that have permissive attitudes toward animal suffering-or those of Europe that have a strict approach.
A post on the legal submissions to come soon.
