ASIL Insights has just posted a preliminary assessment of the AB ruling in Seals co-authored by Jo Langille, Katie Sykes and me.bit.ly/1uiYXcx The exchanges on this blog were very helpful to us in the deliberations that led to our joint piece. So many thanks to Simon, our host and impresario.
The blog exchanges were also mentioned in an on-line article by Peter Clark, bit.ly/1oX1ZTY posted today as well, with an absurdly misleading title: "Europe won small battle on seals, but is losing the war."
Mr. Clark calls the ruling a "win" for Canada His basis for doing so is that the Appellate Body, while having found the EU ban provisional justified as necessary for the protection of public morals, held that under the chapeau of Article XX a few aspects of the way in which the indigenous hunting exception is implemented need to be changed. So what did Canada "win" as a result of these findings under the chapeau. It is very hard to see the first two changes sought by the Appellate Body, that the EU must pay attention to inhumane pracatices in indigenous hunts and that it must close any loopholes in the exception that might allow commercial sealing operates to circumvent the ban, as in any way helpful to Canada's commercial sealing industry. How do those changes in any way lead to greater market access to Europe for Canadian seal products? The third change goes to the AB's concern that not enough is being done by the EU to facilitate access for Canadian indigenous seal products to the EU market. Since Canada's Inuit insist that with a general ban in place there isn't enough of a market to make it worth their while to sell to Europe, even if they have an exception, this could only be described as the most pyrrhic of victories.
The fact is that the market in the EU for seal products has largely dried up, due to the very moral beliefs of its citizens and consumers that are reflected in the ban itself and which the WTO AB held to justify it. One of Canada's main arguments in the WTO proceeding was that the ban combined with the indigenous exception favoured Greenland, because it had large-scale indigenous sealing. But Greenland's own seal products are an increasingly hard sell: despite the exception, its exports have declined 90% since the EU ban was put in place.bit.ly/UczODZ
These statistics suggest that Canada wasn't pursuing its WTO complaint primarily to compete with Greenland over the dwindling EU market for seal products. No, Canada's interest was in fighting the global trend toward prohibiting products from the inhumane hunt. It hoped the WTO would set a precedent that would help Canada in its global battle to protect this dying, cruel business. From this perspective, Canada's strategy has totally backfired. First of all, having defamed activists and citizens alike as irrational, sentimental fools for being concerned for seals and having insisted there is no basis in fact or science to be concerned that the hunt is inhumane, Canada now has to reckon with the ruling of an independent international tribunal, which found on the basis of extensive expert evidence, that the commercial seal hunt produces signficant instances of poor animal welfare outcomes, as defined by veterinary science. Second, while the Appellate Body gave a wide bearth to WTO Members to ban seal products on public morals grounds, the only flaws they found under WTO law were not with the ban itself, but with the very specific way that the EU operated its exception for indigenous peoples. These are concerns that are particular to European administration and do not affect in any way the global trend towards prohibition.
Thus if one replaces "Europe" with "Canada", the title of Mr. Clark's piece begins to describe the reality: "Canada won a small battle but lost the war"
