TWN Info Service on WTO and Trade Issues (Mar11/03)
3 March 2011
Third World Network

EC blocks Canadian panel requests over seal products
Published in SUNS #7097 dated 28 February 2011

Geneva, 25 Feb (Kanaga Raja) -- Two separate requests by Canada for the establishment of dispute panels over measures imposed by the European Communities prohibiting the importation and marketing of seal products were blocked by the European Communities at a meeting of the WTO Dispute Settlement Body (DSB) on 24 February.

These were both first-time requests and panel establishment would be automatic when both requests by Canada come up again before the DSB.

The first dispute (WT/DS369/2) concerns certain measures taken by Belgium and the Netherlands regarding the importation, transportation, manufacturing, marketing, and sale of seal products.

In its communication to the DSB, Canada said that the Belgian trade ban prohibits the preparation for sale or delivery to consumers, transport for sale or delivery, possession for the purpose of sale, importation, distribution and transfer of seal products. The Belgian import licensing requirement imposes a requirement that an import licence be issued for the importation of seal products.

The Dutch trade ban prohibits the importation of and trade in all harp seal and hooded seal products regardless of the animal's age.

This includes a prohibition against asking for the sale, the buying or acquisition, the holding for sale or in stock, the selling or offering for sale, the transportation or offering for transport, the delivery, the use for commercial profit, the renting or hiring, the exchange or offer in exchange, the trade or exhibiting for commercial purposes or the bringing or possessing within or outside the territory of the Netherlands, of harp seal and hooded seal products, said Canada.

Canada considered that these measures were inconsistent with the European Union's obligations under the GATT 1994 and under the Technical Barriers to Trade (TBT) Agreement. Canada also considered that the Belgian trade ban violated the provisions of the GATT 1994.

The second dispute (WT/DS400/4) brought by Canada against the EC concerns Regulation (EC) No. 1007/2009 of the European Parliament and of the Council of 16 September 2009 on trade in seal products.

In a communication to the DSB, Canada said that on 17 August 2010, the European Commission published Commission Regulation (EU) No 737/2010 laying down detailed rules for the implementation of Regulation (EC) No. 1007/2009 of the European Parliament and of the Council on trade in seal products.

According to the Canadian communication, the European Union trade ban prohibits the importation and the placing on the market for sale in the European Union customs territory of any seal product except: (a) those derived from hunts traditionally conducted by Inuit and other indigenous communities, which contribute to their subsistence; and (b) those that are by-products of a hunt regulated by national law and with the sole purpose of sustainable management of marine resources.

In addition, said Canada, seal products for personal use may be imported but may not be placed on the market. The effect of the trade ban, in combination with the implementing measure, is to restrict virtually all trade in seal products within the European Union, and in particular with respect to seal products of Canadian origin, added Canada.

Canada considered that each of the measures referred to is inconsistent with the European Union's obligations under the GATT 1994 and under the TBT Agreement.

In its statement at the DSB, Canada explained its reasoning behind the two panel requests. It said that the first concerns Belgian and Dutch measures that came into force on 28 April and 23 October 2007, respectively, and that prohibit the importation and the marketing of seal products. The second request refers to an European Union regulation that came into effect on 20 August 2010 that bans trade in seal products.

Canada said that while it may be that the European Union ban supersedes the Belgian and the Dutch bans for the purposes of the application of European Union law, it understands that the two national bans, to this date, have not yet been repealed and therefore remain in effect. This is why Canada has made two separate panel requests, it said.

Canada further said that it understands that according to the EU, the measures that are the subject of Canada's panel requests have been instituted in response to concerns of its citizens and consumers about animal welfare aspects of the seal harvest.

While the Government of Canada respects an individual's choice to support or oppose the seal harvest - it noted that several EU member states also allow their citizens to participate in the hunting of seals - Canada said that it also believes that trade restrictions cannot be justified by relying on myths and misinformation, and it encouraged people to form their opinions based on the facts.

The facts, according to Canada, are that the seal harvest is lawful, sustainable, humane, strictly regulated and guided by rigorous animal welfare principles that are internationally recognized by virtually all independent observers.

In addition, Canada said that the methods used by Canadian sealers and prescribed in Canada's Marine Mammal Regulations are consistent with the recommendations of independent veterinarians and many of the conclusions of the European Union's own European Food Safety Authority report released in 2007.

It also said that the Canadian government monitors the seal harvest closely, including ongoing aerial patrols, sophisticated vessel monitoring systems, at-sea and dockside vessel inspections, and regular inspections of processing facilities.

It stressed that the Canadian seal harvest helps to provide thousands of jobs in Canada's remote coastal and northern communities where few economic opportunities exist. It has also been an important part of the Inuit way of life for centuries.

Canada said that although it has requested that two panels be established, it would be pleased if the EU would agree to have the two panels joined once they have been established, so that the two disputes, which are closely related, can be heard by a single set of panellists.

With respect to the second dispute concerning the EC Council regulation on trade in seal products, Canada said that the regulation allows seal products to be placed on the market only where they result from hunts traditionally conducted by Inuit and other indigenous communities.

However, said Canada, the Inuit themselves have made it clear that they strongly oppose the regulation. Sealing has been and continues to be an important part of the Inuit way of life, demonstrating individual hunting skills and expressing cultural pride and identity.

In the 1980s, Canada pointed out, the European Communities had imposed a ban on certain seal products, which virtually destroyed the market for seal products and led to a loss of livelihood for Inuit who sell seal skins as a by-product of the subsistence hunt. Interestingly, that ban too, contained a specific exemption for Inuit seal products.

While the market in Europe for Canadian seal products did eventually recover somewhat, the chilling effect of the various pieces of legislation currently in force has resulted in an extreme decline in Canadian exports. For example, said Canada, exports of raw seal fur skins to the European Union fell by 94% in 2009 as compared to 2008.

Based on previous experience, Canada maintained that there is every reason to believe that the EU's exemption for trade in traditional Inuit and Aboriginal seal products will again prove to be ineffective, particularly in the face of the collapse of the larger market, and the Inuit will once again suffer the effects. The solution to this is the restoration of full market access.

In its statement, the EU believed that the measures are neither protectionist nor discriminatory, and are fully in compliance with WTO rules. The EU said that it stands ready to defend such measures.

In an intervention, Norway said that the EU measures prohibiting the importation and marketing of seal products have serious implications for Norway as well, which is why it had requested and held consultations, together with Canada, on this matter.

"This dispute is not just about seal products, but more importantly about our right to harvest in a sustainable manner from our living marine resources, and to market the products of hunting and fishing," said Norway. +