28 Jun YJIL Symposium: Beyond the (Cute) Face of the Matter: Aims, Coherence and Necessity of the EU Seal Products Regulations
[Tamara Perisin is a member of the faculty of law at the University of Zagreb]
This post is part of the Yale Journal of International Law Volume 37, Issue 2 symposium. Other posts in this series can be found in the related posts below.
The article by Rob Howse and Joanna Langille on the EU Seal Products Regulations goes far beyond a case study on a challenged measure and pending dispute. The article places the WTO challenge in the context of the development of a regulator-friendly world trading scheme sensitive to Members’ values, such as animal welfare. At the core of the article lies a pluralist vision of the WTO allowing diversity and a high level of protection of non-protectionist aims. This is a vision to which I also personally subscribe.
However, beyond the underlying premises of the article, which I fully support, there are subtleties in the analysis of the particular EU measures which lead me to some different conclusions from those Howse and Langille reach. These conclusions, though, are not intended to endorse seal hunting. In this online symposium, I would like to open up several questions for discussion.
As a preliminary point, I have to admit that my views of the EU Seal Products Regulation and its Implementing Regulation are influenced by the legality and legitimacy problems which these measures face internally, within the EU. Both Regulations are currently under challenge before the ECJ as they might be contrary to the principles of conferred competences, subsidiarity and proportionality. The Seal Products Regulation was adopted on the basis of Article 114 TFEU which is supposed to serve for the establishment and functioning of the internal market. The EU legislature interpreted this legal basis very broadly to regulate a matter which is not very connected to the internal market, but (arguably) achieves animal health or moral aims for which the EU does not have the competence. Broad interpretations of this competence leave little room for any diversity, pluralism, and decision-making at levels closer to citizens (which are among the EU’s basic principles). So an entirely pluralist view actually goes against EU regulations in this area, as EU Member States themselves would have chosen different regulatory solutions for seal protection had they been left with that choice.
As regards the measures’ compliance with WTO law, this comment relies on the detailed analysis in Permitting Pluralism, and just focuses attention on the aims, coherence and necessity of the measures.
The EU claims that the aims of the measures are animal life and health and/or concern for animal welfare which can be understood as part of public morals. These are undoubtedly legitimate aims, but I would like to open discussion on whether these are indeed the aims of the EU measures. Canada and Norway are likely to argue that the measures’ aim is not legitimate, but rather that it is protectionist. Indicative of protectionism (but certainly not conclusive proof of it) is the fact that the EU banned seal fur, which the EU itself does not really produce, while it remains the world’s largest producer of farmed fur (fox and mink), the world’s largest fur marketing company is based in the EU and the largest fur fair revolving mostly around the mink and fox trade is in the EU. On top of that, the only “domestic” production of seal fur is that in Greenland (Denmark). Greenland is an EU overseas territory, so the Regulation’s production ban does not apply there and the trade ban does not actually affect it because fur produced there seems to be covered by the exception for indigenous communities. Canada and Norway are likely to use these facts to argue that banned seal products are “like” products in relation to some of these permitted products on the EU market: permitted seal products; other animal products (such as fox or mink furs); and even other products which might not even contain any ingredients of animal origin (such as Omega 3 capsules which the Regulation itself mentions as substitutable and difficult to distinguish from products containing seal elements). The complainants are likely to argue that the EU measures constitute less favourable treatment of “like” products which is done so as to afford protection to domestic production.
The aim of public morals deserves special consideration, if for no other reason than simply because it has rarely been used as a justification. The Appellate Body in US – Gambling defined this term broadly, but the question is whether the concept is broad enough to cover the measures at hand. This depends on several issues. The first one is whose morals a WTO Member can invoke to justify its measure. In the present case, the EU is relying on a study which gathered answers from individuals in 160 countries, where the majority of pro-banners were not from the EU, but from countries such as the US and Canada. However, while one might accept that global morals are an even better justification than regional ones, in this case it seems that global morals do not exist – the countries from which loud pro-ban support came do not ban seal products themselves; and there are also relevant ethnic groups such as the Inuit which consider the seals ban to be culturally arrogant. Thus, the second issue is whether the EU public is indeed worried about seals and, if it is concerned, why should this be so? There are numerous animal products available on the EU market and it is unclear what distinguishes those products from seal products, or those animals from seals. Most of the 35 species of seals, and all of the most hunted ones, are not endangered, are not exclusively used for fur, are not pets, etc. Thus, if the only reason for banning seal products as opposed to other animal products is that seals are “cute”, then the Panel needs to decide whether it wants to accept public morals based solely on irrational, emotional attitudes. It should be stressed that these types of irrational attitudes are very different from the example given by Howse and Langille when a country acts on the basis of religious beliefs and, for example, bans the import of certain non-halal foods. Such measures are based on beliefs that per se cannot be scientifically proven. A country adopting such a measure would not even consider invoking scientific evidence or facts about the harmfulness of the banned foods, and this should be acceptable in the WTO. The situation with Europeans’ attitudes towards seals is quite different. EU citizens think that their views on seals are rational, based on facts and scientific evidence, but this is not entirely true. The WTO has to decide whether this is acceptable. So, the third issue derives from the fact that the EU’s own study shows that the public has several misconceptions about seal welfare and seal hunting, and private studies show a complete lack of information. The question for discussion is also whether an international forum such as the WTO should accept a public morals justification even when the morals are based on a lack of, or wrong, factual and scientific information.
Regardless of whether the EU seeks to justify its measures by invoking public morals or animal life and health, the measures suffer from some incoherence which might cast doubt on the proclaimed aim. The problem is that the basis for differentiating between permissible and impermissible products is not humane hunting: products not covered by the exceptions cannot be placed on the market even when resulting from humane hunts, and, in contrast, products covered by the exceptions can be imported and even placed on the market even when resulting from inhumane practices. There is no reason to construct the exceptions in this way. All the aims of the exceptions (protection of indigenous communities and marine management) could have equally well been achieved if the requirement of humane hunting had been applied to them. It is worth noting that in this respect the Seal Product Regulation differs even from comparable EU rules, such as the Leghold Trap Regulation, which are responsive to the hunting methods used. It is also relevant that the Commission’s proposal of the Regulation was responsive to humane hunting and entailed only a conditional ban. It was only after the amendments in the various committees of the European Parliament that the Regulation was transformed into a total ban (with three narrow exceptions).
Concerning necessity, two less restrictive alternatives are raised in the discussions: the requirement of humane hunting and labelling. First, as regards humane hunting, even if Canada’s system of enforcement is not perfect, as the EU study states, one wonders whether the EU should give individual countries and/or traders the possibility of proving that their products are obtained through humane hunts and subsequently allow them on its market. In this respect, the complainants have a strong argument in that the EU system anyhow requires all EU Member States to set up competent authorities to conduct certain procedures, assess evidence and issue attesting documents for placing seal products covered by exceptions on the market. These authorities could be doing the same task for all traders and checking humane hunt compliance. Second, as regards labelling, labelling is not always able to achieve the same effect as a ban. This arises in a situation where consumer preferences are different from voters’ (the general public’s) preferences. This is now what the EU is arguing in this case. Furthermore, the EU is anyhow taking steps to develop a system of animal welfare labelling which currently focuses on products derived from farmed animals, but there is no reason why similar labelling standards could not be required for hunted wild animals.
To conclude, I entirely agree with Howse and Langille that WTO Members need to be given enough space to protect their values, including animal welfare. So, are there any possible WTO compliant measures on seal protection that could be taken on by the EU or its Member States (the latter being internally more legitimate to act in this field) if they genuinely wanted to protect seals? Yes, there are – ranging from rules on habitats all the way to trade bans. It should be especially stressed that this comment does not argue that WTO law prevents the EU or Member States from banning seal products. It merely argues that a trade ban must have a genuine legitimate aim, which it must achieve with coherent and necessary means. This also does not mean that the EU should do less to protect seals. If there are genuine concerns for animal welfare, then the EU can do even more to protect seals – it can ban seal products without any (incoherent) exceptions – i.e. it can require all seal products provided for in the exceptions to comply with humane hunting rules. The EU or its Member States could also ban many other animal products, particularly furs of animals not used for food, which are currently being imported into the EU, as well as being produced there.
As a final word, many thanks to Rob Howse for inviting me to this online symposium. Ever since he was my Fulbright academic advisor many years ago, Rob’s scholarship has continued to influence my thinking and writing. I thus appreciate participating in this debate even more.