Last week, a World Trade Organization panel ruled that EU restrictions on the import of seal products are justified under a free trade exception for trade restrictions that are “necessary to protect public morals.” This is the first time that the WTO has backed a trade restriction grounded on concerns for animal welfare.
At issue in the case was a challenge to EU regulations that generally ban the import and marketing of seal products in the EU, with exceptions to the ban when certain conditions are met (such as when the seal products are derived from hunts conducted by Inuit or indigenous communities, or when the hunts are conducted for marine resource management purposes).
The panel ruled that the EU must alter its application of the exceptions (as it has thus far treated imported and domestic seal products differently), but concluded that the “objective of addressing EU public moral concerns on seal welfare” was a valid ground for imposing trade restrictions. Thus, if the EU applies the exceptions consistently, the restrictions will be permitted.
One reason that this ruling is significant is that it paves the way for other trade restrictions based on animal welfare concerns. While the EU has imposed a wide variety of restrictions on the ways in which farm animals are raised inside EU countries (including bans on hen battery cages, veal crates, and sow stalls), legislators have not yet imposed restrictions on the import of animal products from countries without parallel protections, in part because of WTO concerns.
Another significant feature of this ruling can be found in the panel’s reasoning and a distinction that it draws between two potential objectives of the trade restrictions. The panel explained that the valid objective was not “the protection of seal welfare as such.” (This was an additional argument raised by the EU, which the panel found insufficiently developed). Rather, it emphasized, the objective of the restrictions was to address “the EU public moral concerns on seal welfare,” and it was this objective that it upheld as a valid basis for the trade restrictions. In other words, it was not the actual suffering of the seals, but rather the human experience of their treatment, that provided the basis for the ruling.
Notably, a similar line of reasoning can also be found in the standing jurisprudence of US federal courts, which have held that a person’s experience of an animal’s harm can constitute an “injury in fact” that provides the person with standing to bring suit to prevent the harm to the animal. For more on the moral and legal significance of this line of reasoning, see this prior paper of mine.