A few further observations.
Some of the panelists had difficulty understanding how permitting for-profit or fully commercial sealing under the indigenous or marine management exceptions would undermine the public morals or animal welfare objectives of the EU. I find this baffling: it is very easy to see why people would be more outraged or upset at the suffering of animals when it would not occur but for the profit motivations of private industry, as opposed to for some necessary or legitimate public purpose. The EU already restricts animal tested cosmetics but is no so restrictive of testing on animals when it comes to developing life-saving medications. That corresponds to very widespread moral intutitions that commercial exploitation of animal suffering is different from suffering which occurs for other important human purposes, even though it can lead to profit taking (such as the profitable sale of an animal-tested wonder drug). The panel also seemed to find it hard to grasp why if for-profit or commercial activity were permitted under the exceptions, there would be incentives to circumvent the ban, for example simply choosing ethnically indigenous people to run a commercial hunt (whereas the idea of the exception is to preserve a traditional way of life, not an open-ended affirmative action program for any person of indigenous ancestry). Finally the panel did not seem to grasp the meaning of the footage that was shown to it at the beginning of the day; commercial hunters unlike non-commercial indigenous and marine management hunters, depend for a living on immobilizing as many seals as possible as quickly as possible-there need for seals is not intrinsically limited by these other purposes (like meat for their own table, and their dogs) but rather every extra seal means extra profit. It is the economics of the commercial seal industry that are incompatible with methods that involve monitoring each seal from the first striking of the seal until one is sure that it is quickly, and as painlessly as possible, dead. This is the tragic conflict between commercial sealing and what in an ideal world would be best practices in terms of humane killing. (Of course, aboriginal hunters use methods that are humane, because of the necessities they are under; but the other side of the coin is that they don't have the incentive to take as many seals as possible within a very short period of time, which is an important limit on their inhumaneness).
Now from tragedy to comedy. The most hilarious red herring was introduced by the Chair of the panel who said he had heard a report that seal hunting was occuring on or in the waters of the French overseas territories of St Pierre and Miquelon. Now evidence was one of my lowest grades in law school, but am I wrong that there is something questionable about a judge introducing evidence of his own in a proceding on the last day, without it being in the record? Whatever report it was, didn't even seem to be distributed to the parties. Nor in any of the publically available or leaked pleadings that I have seen were there any facts related to St. Pierre and Miquelon. But merely by introducing this as some kind of shocker or smoking gun, the chair of the panel appeared to have misunderstood the EU measure as a ban on hunting not the placement of seal products on the EU market-it is really very difficult to see how the existence of hunting in St. Pierre and Miquelon could possibly be relevant to the actual measure before the panel (unless seals products made from St. Pierre and Miquelon seals were being exempted from the EU general ban, which nobody was suggesting). Eventually, the panel was informed that St. Pierre and Miquelon were among those French overseas territories to which the European Union treaties don't apply (if I understood correctly). But this was not the only case where the chair appeared to misunderstand the EU measure as a regulation on hunting rather than the placement of products ultimately derive from hunting on the EU market.
The Singapore panelist asked the parties whether they thought TBT applied to PPM characteristics of a product that were not embedded in the product physically. Was this question just intended as a test of how well the attorneys knew the Tuna/Dolphin case, where she was a panelist (and where majority decided that TBT did apply to the US measure, despite dolphin friendliness being a non-physically embedded characteristic)? Or is it a giveaway sign that she was indeed the dissenting panelist who didn't have to get to that question, because she (rightly in my view) found that the US measure did not mandate any product characteristics as such? In any case, the AB has upheld the decision of the panel in Tuna/Dolphin that TBT is applicable to the US measure, and this means it had to uphold the finidng that that product-related PPMs within the meaning of TBT include PPMs based on characteristics that do not affect the physical nature of the traded product.
Norway quickly gave an answer that was glib, which was that there is no need to decide the question because the EU ban simply mandates of products that they not have the obviously physical characteristic of containing seal. Not so fast. Because Norway itself has emphasized obsessively the exceptions to the ban, and these exceptions are based on non-physically embedded characteristics of the seal product, such as whether the product is derived from certain kinds of indigenous or marine management hunts. In any case, as noted, the AB has already determined the issue. So why use up precious time talking about it in the last hours of the hearing?
Finally, it became clear under questioning that Canada didn't have much of a detailed notion of the less-trade restrictive alternative it was proposing that the EU could adopt to achieve the same level of protection or higher. This appears to be some kind of negotiated certification and labeling scheme that would allow into the EU seal products where certified as coming from seals hunted in a manner that meets humane standards. It was insisted there were other real world examples examples where the specific hunt where one could trace the hunt from which a particular product is actually derived. But, as many experts have insisted, the geographic and climatic conditions under which the Canadian commercial hunt is conducted would make monitoring and verification of the hunting practices on an ongoing basis difficult if not impossibly dangerous and insecure. That's a different problem than tracking. Not surprising that the OIE (the international animal health organization) didn't go down the road of humane hunting standards once it received an expert report detailing the extreme obstacles to effective monitoring and enforcement.
