Received December 2011; first published online 28 March 2012

154 Polar Record 49 (249): 154 166 (2013). c Cambridge University Press 2012. doi:10.1017/s0032247412000174 The EU ban on the import of seal products and the WTO regulations: neglected human rights of the Arctic indigenous peoples? Kamrul Hossain Northern Institute for Environmental and Minority Law Arctic Centre, PO Box 122, University of Lapland, FIN-96101 Rovaniemi, Finland (Kamrul.hossain@ulapland.fi) Received December 2011; first published online 28 March 2012 ABSTRACT. The EU ban on the import and commercialising of seals and seal products in the EU market, has attracted intense attention in recent years. As seal products mostly originate from outside the EU, it is argued that the EU action has been discriminatory and hence contrary to the WTO regulations. Canada and Norway have been critical of the EU regulation and have initiated dispute settlement procedures within the WTO since most of the products that enter into the internal market are mainly from these countries. The ban also provoked anger within the Inuit and other indigenous communities, mainly from Canada and Greenland. Although the EU regulation provides an exception for Inuit and indigenous hunts and the subsequent commercialisation of resulting products into the internal market, the exception suffers from clarity and lacks proper implementation procedures. The regulation is predicted to lead to the ultimate disappearance of the seal market in the EU, which directly affects the Inuit and other indigenous peoples engaged in sealing activities. They may lose their means of subsistence. While analysing the critical issues concerning the EU and the WTO regulations and its exceptions, the article focuses on the human rights perspective of the Arctic indigenous peoples affected by the EU ban. Introduction The European Union (EU) s ban on the import of seal products and their commercialisation in the internal market has attracted great attention in recent years. Seal products in the EU s internal market are mainly foreign in origin and most originate from Canada, Norway and Greenland. Concerned governments and other stakeholders from these countries have been critical to the ban. The ban has given rise to two potential serious legal consequences. First, by imposing the ban, has the EU violated the fundamental non-discrimination rules embodied in the World Trade Organization (WTO) agreements? Second, is the ban consistent with internationally recognised human rights norms, given that it seriously affects the livelihood of the Inuit and other indigenous peoples who are engaged in seal hunts and the commercialisation of seal products for their subsistence. The first concern is to be decided by a WTO dispute settlement panel, which was established in the beginning of 2011 in response to the requests submitted to the WTO Dispute Settlement Body (DSB) by Canada and Norway. Since the issue is currently being litigated, it remains to be seen whether the EU has violated the WTO rules. Thus, answering to this question is not the main focus of this article. Rather, the second concern merits critical analysis, as the ban itself provides exceptions for the Inuit and other indigenous peoples for trade in seal products that is traditionally conducted. While this article touches upon both the issues, it, however, argues that the EU legislation has undermined the essential concerns pertaining to the human rights of the indigenous peoples. The EU ban on the import of seal products The EU regulation banning the placing of the seal products within the internal market was adopted on 16 September 2009 (EC 2009). The regulation applies to seal products produced in the EU and to those products imported from outside the EU. The regulation is the follow up measure of previously expressed concerns on seal hunting, and the use and import of certain seal products that are subject to cruel hunting methods causing pain, distress, fear, and other forms of suffering in the killing of seals. The basic aim of the regulation is to ensure that the EU rules concerning seal products and trade in seal products are harmonised, and at the same time, ensuring that EU animal welfare concerns are fully met (EC 2009: preamble, para. 10). The goal was to place a complete ban on trade in seal and seal products within the EU market, with a narrow margin of exceptions. Overall the EU aims to prevent the sale of all products that come from seals, everything from seal pelts to the Omega 3 capsules made from seal oil (EC 2009: Para. 3). Background The restrictions within the EU on seal hunting and the marketing of seal products started in 1983 with the adoption of a Council Directive (EEC 1983). The directive prohibits the commercial importation into the EU member states of skins of certain seal pups and products derived therefrom (EEC 1983). The validity of the prohibition embodied in the directive was further extended twice, firstly in 1985 (EEC 1985) and then in 1989 (EEC 1989). Thereafter, the EU Council adopted a regulation in 1991, which called for a ban on the import of seal skins and some manufactured products of certain species, trapped in those countries allowing the use of trapping methods that did not meet international humane trapping standards (EEC 1991). The council subsequently adopted Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild

EU BAN ON SEAL PRODUCTS: NEGLECTED HUMAN RIGHTS OF ARCTIC INDIGENOUS PEOPLES? 155 fauna and flora, known as the habitats directive. The directive protects all species, including seals, present in the community. The overall aim of the directive was to maintain or restore a favourable conservation status of seal species (as with all other species), within the community. As part of the measures designed to achieve this goal, article 15 of the directive prohibits the use of all indiscriminate means capable of causing the local disappearance of, or serious disturbance to, populations of such species. The prohibited methods and means of capture and killing are listed in annex VI (a) and the prohibited forms of capture and killing from modes of transport are listed in annex VI (b) (EEC 1992: 7). EU member states are obliged to report every six years on the implementation of the measures taken under the habitats directive. The latest reporting period covered 2001 2006 and revealed information for the first time on the conservation status of all seal species to which the directive applies (EC 2008: 7). The later Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora implements the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES 1973) within the community. Several species of pinnipeds including eared seals and fur seals are listed in appendix II of the CITES. Appendix I lists species that are the most endangered among CITES-listed animals and plants. Appendix II lists species that are not necessarily under a threat of extinction but that may become so unless trade is more tightly controlled. On 26 September 2006, the European Parliament adopted a declaration requesting the European Commission to regulate the import, export and sale of all harp and hooded seal products, while ensuring that this regulation would not have an impact on traditional Inuit seal hunting. National measures had already been adopted by some of EU member states, such as Belgium and the Netherlands (EC 2008: 5 6). On 17 November 2006, the Parliamentary Assembly of the Council of Europe (an international institution outside the EU framework), adopted a recommendation on seal hunting inviting those member and observer states practicing seal hunting, amongst other issues, to ban all cruel hunting methods which do not guarantee the instantaneous death, without suffering, of the animals, and to prohibit the stunning of animals with instruments such as hakapiks, bludgeons and guns (CoE 2006). Finally, on 23 July 2008 the European Commission presented a proposal for the regulation of trade in seal products (EC 2008) which was approved by the EU Council on 27 July 2009. The legal basis of the regulation The proposal for the EC regulation states that the ban on seal products is justified on the grounds of article 95 of the EC treaty (EU 1957 2002). The article provides that the commission envisages, among others, environmental protection as the basis for high level of protection in preparing a proposal for regulation. In its drafting of the proposal, the commission, in addition to looking into the justification under article 95, has also taken due account of the case law of the European Court of Justice (ECJ). The Court set the conditions of recourse to article 95 (article 114, Treaty on the Functioning of the European Union (TFEU, EU 2010)), for example, in the case concerning Arnold André (C-434/02, ECJ 2004), the Court has upheld the idea that the EC Treaty authorises the community legislature to intervene by adopting appropriate measures when acting under article 95. The idea is applicable in setting a high level of protection on environmental grounds in order to promote animal welfare. The Court of Justice has also confirmed that the protection of animal welfare is a legitimate public interest objective when exercising the legislative powers conferred upon it by the EC Treaty (EComm 2009). Moreover, animal welfare is also at the centre of the Community Action Plan on the Protection and Welfare of Animals 2006 2010. The EU Commission recently released a new strategy for the protection and welfare of animals for the period 2011 2015 with a view to broadening the specific rules on animal welfare (EComm 2012). Regarding this specific regulation (Regulation 1007/2009, EC 2009) however, the regulator claims in its preamble that the introduction of import bans independently placed by certain member states would cause disturbances of the internal market unless market regulation is properly harmonised. Moreover, the ban was formulated in line with the Protocol on the Protection and Welfare of Animals. The protocol is now translated into article 13 of the TFEU (EU 2010). Consequently, the EU demonstrates that the regulation concerning the import ban on seal products is clearly justified under community rules. Reactions The EU ban attracted strong reactions from some of the countries engaged in the export of seal products. Both Canada and Norway were critical of the initiative since the regulation was first proposed. Canada is the largest seal products producer in the world and one third of its seal products go to the EU market. The quota for Canada s seal harvest in 2009 was set at 280,000 while Norway s was set at 47,000 (ICTSD 2009a). Canada was the first country strongly to oppose the regulation. Indeed it publicly criticised the EU initiative to ban seal products from the very beginning, when the regulation was initially proposed. Canada threatened to challenge the EU decision before the WTO dispute settlement body. After the regulation was finally adopted, on 2 November 2009, Canada formally requested consultation with the EU through the WTO. Canada claimed that the regulation violates various international trade agreements, including the agreement on Technical Barriers to Trade (TBT), the General Agreement on Tariffs and Trade (GATT) and the Agriculture Agreement (Hamilton-Smith 2010). Since then, the dispute (DS400) has been at the consultation stage and the subject of official negotiations between the

156 HOSSAIN parties to it. In the beginning of 2011, Canada asked the WTO to establish a Dispute Settlement Panel (DSP), and Norway has also joined in that request. The EU blocked the initial request, but a second application was filed in March 2011 and the panel is now established. The panel is expected to issue a report on the case within 9 to 15 months, with possible further appeal actions. In addition to these governments, the member states of the North Atlantic Marine Mammal Commission (NAMCO) in a statement issued on 10 September 2009 criticised the proposed EU ban on seal products and threatened that this decision may seriously disrupt international cooperation on the responsible management and sustainable use of renewable natural resources in general. The statement further noted that the ban on the import of seal products into the European Community market is in direct contradiction of these fundamental considerations. The statement also asserted that the ban is not a tool to ensure the conservation of seal stocks, nor does it recognise the important work that has been undertaken in sealing communities around the North Atlantic to monitor and improve compliance with the strict standards of animal welfare that are required in the methods used to harvest seals (NAMMCO 2009). Norwegian foreign minister Jonas Gahr Store noted in a statement before the regulation was adopted that the proposed EU ban would restrict the freedom of his country to manage its marine resources. The statement suggests that Norwegian sealing takes a sustainable and modern approach to harvesting marine resources. Norway believed that the EU would take due account of the scientific basis for Norwegian sealing while placing a ban. The proposed ban however, posed a serious challenge for Norway in its role as a close partner to the EU (Norway Mission to the EU 2009). Norway has also initially threatened a WTO suit, confirmed by its foreign ministers who stated that the government has decided to initiate consultations under the WTO dispute settlement procedures to inquire into the legality of the ban to come into force (ICTSD 2009b), and later, along with Iceland, it eventually joined Canada in the legal proceedings after the regulation has finally been adopted. Within the EU, a limited production exists as seals are killed and skinned in Finland and Sweden. Seal products are manufactured in other member states too, including in the United Kingdom (Scotland), using seal fur skin imported from other countries (EC 2008). Most of the seal products in the EU market however, originate from third countries, which are predominantly Canada and Norway. Canada claims that the EU ban will cost its economy over CAD 5 million per year (Koivurova and others 2011). As seal products within the EU market originate mainly from third countries, trade restrictive measures under the regulation, according to Canada, are not compatible with WTO rules. The claim has been denied by the EU saying that the measures are neither protectionist nor discriminatory. According to the EU, the ban responded to the concerns expressed by its citizens, and is based on public morals, as foreseen under the general exceptions allowed under WTO rules. Effect of the ban on the Arctic indigenous peoples The EU ban clearly mentions that the placing on the market of seal products shall be allowed where the products result from hunts traditionally conducted by Inuit and other indigenous communities and contribute to their subsistence (EC 2009: article 3). The implication of this exception suggests that indigenous peoples should not be the aggrieved party in the EU ban on import of seal products. In reality however, the case is not as clear as it first appears. The indigenous communities are convinced that despite the exemption, the ban will cause the seal products market to eventually collapse (ICTSD 2010: 10). Ever since the legislation was proposed, pelt prices have fallen by 64% from 2007 levels (ICTSD 2010: 10). As these peoples will in all likelihood be seriously affected by the regulation, they responded critically to it. The response came from the organisations representing the Inuit people of Canada and Greenland, the Inuit Tapiriit Kanatami (ITK) and Inuit Circumpolar Council (ICC). Inuit individuals united with these organisations in a lawsuit filed against the EU in the European General Court to overturn the EU legislation (Hamilton-Smith 2010). Both Canadian and Greenlandic Inuit took part in the proceedings (ITK 2010). Although the ban took effect on 20 August 2010, the ITK, along with 15 other seal meat and pelt traders, was granted a temporary suspension of the ban until a further ruling of the court is declared. However, on 25 October 2010, the court lifted the suspension order of the ban, which left the total EU ban again in place, although the exemption under the regulation is applicable for traditionally hunted products by Inuit and other indigenous communities (ICTSD 2010: 10). The Inuit, nonetheless, claimed that there is no valid conservation or humane harvesting argument to justify the EU ban, despite the exemptions for seal products resulting from hunts traditionally conducted by them and other indigenous communities (EC 2009: article 3). Inuit have been hunting seals to sustain themselves for food, clothing and trade for many generations. According to them, the exemptions are unclear, flawed and unfair, and would eventually cause economic damage to the Inuit peoples since no clear distinction can be made between Inuit and other commercial hunts (Hamilton- Smith 2010). They claimed that the regulation undermines traditional economic activities and that the regulators have not weighed the interests of Inuit communities against certain moral convictions (Koivurova and others 2011). On the other hand, indigenous peoples voices were not argued to be properly communicated in the making of the decision and sadly, according to them, the regulation does not reflect the reality of the Inuit commercial harvest, which is both humane and necessary for their survival (ITK 2010). In addition, the commission s implementing regulation (EComm 2010),

EU BAN ON SEAL PRODUCTS: NEGLECTED HUMAN RIGHTS OF ARCTIC INDIGENOUS PEOPLES? 157 which lays down detailed rules for the implementation of the regulation 1007/2009 (EC 2009), made it difficult for indigenous sealers to obtain the required certification (Hamilton-Smith 2010), given that none of the regulations adequately establish procedures for the assessment of conformity of imported seal products with the relevant requirements for placing on the EU market (WTO undated d). Indigenous peoples engaged in sealing activities, therefore, have reason to argue that the eventual aim of these regulations is to make the seal market within the EU disappear. International trading rules and their application on the ban International trading rules are formalised through the WTO (WTO 1994a). The WTO supervises the implementation of international rules on trade liberalisation, and also serves as a negotiating forum for further liberalisation. The mandate of the organisation also includes areas, such as the liberalisation of trade in services as well as the protection of intellectual property rights. Their main goal is to promote free trade by eliminating all forms of barriers to trade. Individual states should produce the goods most suited to them and engage in export. They remove concurrent trade barriers and enhance greater economic efficiency, with all states providing to others, the things that they are best at producing (Joseph 2009: 351 352). WTO regulations on free trade and environmental protection Despite the fact that trade liberalisation, economic development and the optimum use of the world s resources are the main objectives of the WTO, the preamble of the agreement establishing the organisation suggests that these objectives are to be achieved through sustainable means. Economic development should be compatible with the protection and preservation of the environment. One of the main pillars of WTO regulations is the principle of non-discrimination. The principle demonstrates that the members of the WTO accord each other mostfavored-nation and national treatment, subject to agreed exceptions thereto. The non-discrimination mechanism in the WTO system is therefore based on these two components, which by nature are inter-connected. Mostfavored-nation (MFN) treatment is embodied in GATT (1947 1994) Article I:1. The principle is also applied, albeit slightly differently, in the General Agreement on Trade in Services (GATS 1994: article II), and in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS 1994: article 4). Importantly, these three agreements cover all three main areas of trade under the WTO, including products, service and intellectual property. The idea is that member countries of the WTO cannot normally discriminate between their trading partners. A special favour is accorded to the other members of the WTO, which the members grant each other mutually. For example, members can grant special favour to the other members through introducing a lower customs duty rate for one of their products. But such similar treatment then has to be granted to all the WTO Members. Although non-discrimination and special treatment sound contradictory, the idea embodies an equal treatment, in which each member treats other members equally, as most favored trading partners. If a country improves the benefits that it gives to one trading partner, it has to extend the same best treatment to all the other WTO members so that they all remain equally most favored. A similar concept applies to National Treatment (NT). The difference, however, lies in the consideration and treatment of products that are already within a member country. The basic idea is that after the foreign products have entered a market, no discrimination can be made between a member s imported goods and like local products. The principle of NT is found in GATT (1947 1994) Article III, GATS (1994) Article 17 and TRIPS (1994) Article 3. Although NT applies slightly differently in each of these agreements, the central point nonetheless is that NT, in terms of products, only applies once a product has entered into the market. Consequently, charging customs duty on an import is not a violation of national treatment even if locally produced products are not charged an equivalent tax. The non-discrimination principle is also found in the Technical Barriers to Trade (TBT), (WTO 1994c) and the Sanitary and Phytosanitary Measures (SPS), (WTO 1994b) agreements. Article 2.1 of the TBT (WTO 1994c) states that imported products shall not be treated less favorably than that accorded to like products of national origin and to like products originating in any other member country, upholding the principles of MFN and NT. There are however, some exceptions allowed. For example, countries may set up preferential trade agreements and offer special treatment to the goods and services traded within the group; developing countries can be accorded special access to their market. Generally MFN means that every time a country lowers a trade barrier or opens up a market, it has to do so for the same goods or services from all of its trading partners. Yet, the agreements permit exceptions, but under strict conditions. The important issue about non-discrimination lies in the reference to like products; the meaning of which presents some confusion as there is no clear definition of like products to be found in the GATT/WTO agreements. The determining factors for likeness have therefore been developed as a result of evolving GATT/WTO case law (Read 2004: 126). The appellate body in the Asbestos case, for example, concluded that the characteristics of like products are traced from the end products regardless of whether it generates pollution during the production process (WTO 2001a). Although an analysis of the likeness of products to be accorded like product status is not the purpose of this article, suffice it to mention that the WTO rules regarding

158 HOSSAIN non-discrimination apply to like products, which must be based on characteristics of the product itself. Environmental exemptions An environmental linkage implied within the various provisions of the WTO regulations, leaves some room to allow exemption from its fundamental non-discrimination principle in certain limited circumstances. The connection between trade and the environment has been frequently uttered during the last two decades. As a response to the growing demand for linkage, the Uruguay Round of trade negotiations established a Committee on Trade and the Environment (CTE) (Khalilian 2009: 2) to examine the interaction between trade and environmental measures, trade measures used for environmental purposes and the effects of trade liberalisation on the environment (WTO 1994d). The CTE has not yet recommended any modification of the WTO regulations, but has held that current WTO laws provide sufficient scope for the protection of the environment. Explicitly, the CTE refers to the SPS Agreement (WTO 1994b) (which deals with food safety and animal and plant health) and the TBT Agreement (WTO 1994c) (which addresses product standards and labelling) (Khalilian 2009: 2). Therefore, an exception to trade liberalisation can also be drawn from the provisions granted for environmental protection. Despite the existence of the linkage of trade measures and environmental protection, its legitimacy remains unclear because the WTO body of law has not been consistent in its case rulings on these matters (Khalilian 2009: 3). Environmental exemptions are laid out in GATT Article XX. The chapeau (introductory clause) states that no discrimination should be made between countries where the same conditions prevail and no disguised restriction should be in place on international trade. The article also sets out a number of exceptions compatible with GATT/WTO rules. While none of the listed exceptions specifically address animal welfare, sub-articles (a), (b) and (g) are of potential significance. In order to invoke article XX, the terms of specific exception being invoked must meet the overarching requirements of the chapeau. Therefore, the measures to justify protection within the scope of article XX must not only come from one or another of the particular exceptions, paragraph (a) to (j), listed under the article, but it must also satisfy the requirements imposed by the opening clause (chapeau)of the article (Fitzgerald 2011: 108). Sub-article (a) suggests that a measure can be implemented if it is necessary to protect public morals. Sub-article (b) provides that restrictions may be imposed when it is necessary to protect human, animal or plant life or health. Sub-article (g) asserts that restrictive measures are compatible if they are relating to the conservation of exhaustible natural resources, if such measures are made effective in conjunction with restrictions on domestic production or consumption. The environmental standard can also be set under the GATT s TBT agreement. Technical regulations and product standards may vary from country to country. Different regulations and standards apparently complicate the process for producers and exporters. The TBT agreement, therefore, encourages members to use relevant international standards as they exist, so that regulations, standards, testing and certification procedures are harmonised, and that such regulations, standards, testing and certification do not create unnecessary obstacles to trade. However, countries are allowed to impose stricter standards than those of other countries, if they wish to protect human, animal or plant life or health... (and) the environment. Thus, the environment is explicitly mentioned for the first time in the history of the GATT regulations (Khalilian 2009: 9), albeit under the condition that measures taken under the agreement do not lead to unnecessary obstacles to trade, which means that the regulations cannot be set arbitrarily. Later, the Uruguay Round (1986 1994) extended the scope of the TBT by including product characteristics and their related process and production methods (PPMs). PPMs have an effect on the characteristics of the product itself, which is again similarly confusing when determining like products. The trace of likeness, as mentioned previously, however, lies on the end products as the appellate body concluded in Asbestos case. The SPS agreement has a smaller scope in terms of exemptions that can be based on environmental grounds. The agreement deals with health risks coming from pests, contaminants and other disease-causing agents, as well as contaminants and toxins in foods, which have an environmental component. It promotes international standards for risk prevention on which trade restrictions can be based, but allows countries to set higher standards of safety, if there are scientifically evidenced reasons by virtue of its articles 2(1) and 2(2) (WTO 1994b). However, measures have to be no more trade-restrictive than necessary for health and safety purposes. Article 2(3) of the agreement provides that members shall not take any arbitrary or unjustifiable measures, which discriminate between members in cases in which identical or similar conditions prevail, including measures between their own territory and that of the other members. The measures adopted under this agreement are presumed to be in accordance with the obligations of the members under the provisions of GATT article XX (b). Compatibility of EU ban and WTO regulations It is now the DSP that will determine whether the EU ban on the import of seal products is consistent or not with WTO rules. As discussed, WTO disciplines promote the progressive liberalisation of trade by removing unnecessary restrictions on trade. However, there are exemptions within the relevant trade regulations in which necessary restrictions can be imposed, based for example on public morals, human health, the life and health of plants or animals and so on. The question, therefore, is whether by imposing the ban on seal products, the EU has discriminated against (or among) foreign products. Despite the

EU BAN ON SEAL PRODUCTS: NEGLECTED HUMAN RIGHTS OF ARCTIC INDIGENOUS PEOPLES? 159 fact that the WTO recognises the World Organization of Animal Health (OIE), which deals with animal welfare, as the standard setting organisation of animal health, there is no specific mention of animal welfare in the WTO agreements (Thiermann and Badcock 2005: 747). Nor has there been a GATT panel to date precisely on any animal welfare issue (RSPCA undated). Moreover, animal welfare issues are not the particular focus for trade law unless they disrupt trade flows. Since the WTO agreements do not specifically regulate animal welfare, and since animal welfare issue is a non-trade concern (WTO undated a), the compatibility of EU ban over the WTO regulations has to be viewed cautiously under the provisions of the agreements that are applicable to trade generally. The arguments both from the EU perspective and from the side that challenges the EU actions are described below. The EU argument is that as the regulation has not discriminated between foreign or imported products, it applies to all seal products regardless of their country of origin, there seems to be apparently no violation of WTO rules concerning the policy of non-discrimination. Moreover, the ban is justifiable in accordance with the exemptions regulations under GATT article XX (a), (b), and (g), which talks about the necessity of placing restrictions on grounds of public morals, the protection of human, animal or plant life or health, and for the conservation of exhaustible natural resources, respectively. EU citizens have been criticising the cruel and inhuman killing of seals for many years. Before the EU regulation was adopted, Belgium and the Netherlands had separately imposed restrictions on the import of seal products. The EU was obliged to care for its citizens concerns based on public morals and, at the same time, had to comply with its domestic policy regarding animal welfare and so harmonize its legislation on this issue. Moreover, the WTO trade regime is equipped to address animal welfare issues under both the SPS and TBT agreements. Animal health is a legitimate basis for enacting a measure under the SPS Agreement, so the EU may also justify its action based on the link between animal welfare and animal health, the two issues being directly linked. The TBT agreement (as much as it applies to regulations and standards which regulate the production, processes, packaging, labeling, etc., of both agricultural and industrial products), recognises that none of its provisions should prevent a country from taking any measures necessary to protect animal health. As far as the contemporary concerns for animal well-being are concerned, the EU regulation may also be interpreted in line with those of animal welfare concerns, implied in the TBT agreement. The fact is that animal health now includes the concept of animal welfare, and animal welfare is therefore considered a legitimate objective for the purpose of the TBT agreement (WTO 1994c; Thiermann and Babcock 2005: 750). On the other hand, the practical incidence of the ban will in all likelihood fall solely upon foreign entities (those outside the EU), in particular those of Canada and Norway, since the import levels of the seal products from these two countries are significant. As most of the seal products in the EU market originate from third countries, the non-discrimination rules may not be justifiable within the EU s action. Even though the GATT article XX (a) might well support some animal welfare measures, the current challenge to the EU seal products ban does not establish a precedent for public moral exception since the seal products import ban implicates much more than animal welfare or rights (Fitzgerald 2011: 86 87). Only on one occasion article XX (a) General Exception for measures necessary to protect public morals was directly addressed in the DSB (WTO 2009a, 2009b). While this might significantly influence the DSB to give public morals exceptions in the seal products ban case, the provisions of article XX, as generally interpreted by the DSB, may arguably be less useful in justifying the EU seal products regulation (Fitzgerald 2011: 108). The appellate body, in two of its earlier decisions, first in Shrimp-Turtle case (WTO 2001b) and, then in EC- Asbestos case (WTO 2001a), has upheld import bans similar to that found in the EU seal products regulation. In none of these decisions it relied upon the article XX (a) public moral exception. Moreover, as regards the EU seal ban, there is ample evidence in and surrounding the EU seal products regulations themselves that they are not motivated by a concern on the conservation of seal population. The EU s concerns mainly remained in cruel methods of killing of seals. Therefore, it would also be difficult to fit the seal products ban within the scope of article XX (g) given that animal welfare is not expressly mentioned in this article. Nevertheless, since the EU regulations focused on cruel methods of killing, the seal products ban might appear to be a better fit under article XX (b) (Fitzgerald 2011: 113) that concerns the protection of life or health of animals. However, a clear contradiction might appear from the fact that the EU regulation focused only on the narrow sub-category of seal and seal products, which is made up almost exclusively of foreign goods (for detailed discussion see Lester 2010). It can, thus, be argued that current EU regulation has not adopted a broad animal welfare policy as the EU had not, for example, placed a ban on bullfighting or other arguably similar cruel or inhumane practices involving livestock or other animals. In absence of a general regulation on animal welfare in the EU, it is hard to justify that the ban is consistent with the general exceptions clause of article XX. The EU s arguments on public morals and animal health issues may be judged by the weight between a measure s contribution to its animal welfare goal and the measure s negative impact upon trade. A relevant question might be whether the EU could have adopted alternative measures that could serve its policy goal towards animal welfare, whilst at the same time that would not have impaired the WTO principle of non-discrimination, for example by putting labels on seal products to inform

160 HOSSAIN consumers about the harms to seals, thus allowing the consumers to make an informed purchasing decision (Lester 2010). However, any balancing measures between EU s policy goal towards animal welfare and trade on seal products have not been reflected in the EU regulation. Another argument that questions the EU ban might be whether an importing WTO member can justify the import ban, when reacting to events occurring outside its own territory. If the WTO were to accept the argument based upon the EU consumers moral concerns about seal harvesting practices abroad, then there is room for counter actions to be raised from other WTO members. Their national laws could then punish imports from countries that do not legally guarantee labour rights on the basis of moral concerns (Lester 2010). Although trade-restrictive measures in regard to SPS and TBT agreements on the grounds of the protection of animal health and environment are valid to prove the test of necessity, they must be grounded on available scientific and technical information. There were no such scientific assessments available before the EU to demonstrate that the seals are an endangered species, and that their conservations are important. Whether the EU has complied with the currently available scientific information has also been a matter to be considered. Moreover, under the WTO rules a prohibition or ban on the import of a product cannot be based on its nonproduct related PPMs. Animal production methods are classified as non-product related process methods and in most cases do not directly alter the physical characteristics of the final product (Thiermann and Badcock 2005: 748). This makes it difficult for the EU to prove that the ban was necessary, in order to comply with WTO nondiscrimination rules. The producers of related products however, could include information about the production and process methods employed during manufacture, in the marketing of products, citing high standards of animal welfare as appropriate. This would enable private markets, consumers and investors to make an informed choice (Thiermann and Badcock 2005: 750). In light of these considerations, it may be questionable whether the grounds of necessity placed on animal health and the environment, are strong enough to justify the EU restrictions on the trade in seal products (Lester 2010: 67). Does the EU ban neglect human rights of the Arctic indigenous peoples? The EU s argument upon placing the import ban was that the ban would not affect seal products from traditional hunts conducted by indigenous peoples. The regulation clearly articulated this exception, which is applicable for Inuit and other indigenous groups. It remains to be seen whether the EU has violated WTO rules, as the issue is currently being litigated by a WTO dispute settlement panel. However, the ban has already created a huge concern for Arctic indigenous peoples (mostly the Inuit peoples of Canada and Greenland), and the EU action has posed a threat from the human rights perspective to these groups of indigenous peoples. Despite the exception granted to traditionally hunted seal products by the Inuit and other indigenous peoples, it would be rather difficult to implement this exception, which is seen as eventually conflicting with their traditional and cultural rights. Before discussing how Inuit and other indigenous peoples are affected by the EU ban, it is important to offer a brief account of the human rights applicable to the indigenous peoples. Human rights perspective of the indigenous peoples To date there is no internationally binding instrument that exclusively deals with the rights of indigenous peoples. However, a normative development is found in the Declaration on the Rights of Indigenous Peoples adopted by the United Nations General Assembly in 2007 (UN 2007). The declaration, in addition to providing basic fundamental rights belonging to indigenous peoples, articulated a range of cultural, religious, traditional, spiritual and linguistic rights related to their spiritual traditions, histories and philosophies, and especially related to their traditional lands, territories and resources (UN 2007: para. 7). It is a recognised fact that indigenous knowledge, and traditional practices contribute to the sustainable and equitable development and proper management of the environment. This fact has been recognised also in the Rio Declaration adopted in 1992 (UN 1992). Principle 22, for example, suggests that indigenous people and their communities and other local communities have a vital role in environmental management and development because of their knowledge and traditional practices. The rights belonging to the indigenous communities are, therefore, unique and distinct from that of other peoples. Indigenous peoples argue for a right to determine their own future and at the very least, to pursue their own economic, social and cultural development connected to their traditional lands. This argues for right to self-determination which in present day understanding, suggests an internal dimension of self-determination limited to the resource management rights connected to the lands on which the indigenous peoples live. This implies an understanding of their right to effective participation in the decision making process and a right to be consulted prior to decisions being made in matters that directly affect them. Although binding human rights documents, such as the International Covenant on Civil and Political Rights (ICCPR), (UN 1966a) and the International Covenant on the Social, Economic and Cultural Rights (ICESCR), (UN 1966b) of 1966 have not particularly mentioned the term indigenous peoples, the provisions of the covenants cover them. The indigenous peoples (as with the other citizens in a state), enjoy civil, political, economic, social and cultural rights, as embodied in the covenants. The covenants however, have not provided special rights to be accorded to them. The ICCPR nevertheless

EU BAN ON SEAL PRODUCTS: NEGLECTED HUMAN RIGHTS OF ARCTIC INDIGENOUS PEOPLES? 161 provided a minority protection article to guarantee the religious, linguistic and cultural rights of a minority, in its article 27, which states: In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language. The term minority is not defined within the treaty itself, nor is it defined in international law. It is nonetheless a fact that indigenous peoples mostly comprise small minorities except only in a few countries in which they form a majority. Therefore, this article is applicable to the indigenous peoples forming a minority in a country. The article guarantees, among other things, their right to enjoy the practice of culture. The UN Human Rights Committee (HRC) interpreted the term culture as the manifestation of many different forms including a particular way of life associated with the use of resources, such as hunting and fishing (HRC 1994: para. 7). The enjoyment of these rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisionmaking, which affects them (HRC 1994: para. 7). Article 27 places restrictions on the state in the use of the traditional land on which indigenous peoples live and to which their traditional livelihoods are associated. The restrictions may be found in at least two of the communications brought before the HRC, in which Finland was accused by the Saami to have interfered with their reindeer herding. The committee (in the first Länsman case, decided in 1994), developed a two-part test, the first aspect being procedural (consultation) and the second aspect, material (economic sustainability) (HRC 1992). According to the first aspect of the test, indigenous peoples need to be consulted properly before the state may permit interference in their traditional livelihood. Article 27 also prohibits states from endangering the practice of traditional livelihood, to the extent that it would lose its capacity to sustain the members of the community (HRC 1992: paras. 9.5 9.8). In the second Länsman case (decided in 1996), the HRC underlined that when assessing what amounts to a denial of culture, a state needs to take into account the cumulative effect of activities interfering with the livelihood, when assessing whether article 27 may be breached (HRC 1995: para. 10.7). The committee also made it clear that the economic well-being of the majority is not a legitimate justification for interfering with the culture of minorities (margin of appreciation) but that it is the sustainability of the indigenous livelihood that is protected by article 27. The HRC took the view that traditional livelihoods were at the heart of protecting the culture of indigenous peoples. This view was adopted by the HRC in a number of communications brought before it. The Kitok case (decided in 1988) is an example in which the HRC has undertaken the approach that the rights of persons in community with others, are to engage in economic and social activities which are part of the culture of the community to which they belong (HRC 1985: para. 9.2.). The HRC also took a clear stance on what livelihoods count as part of the culture of indigenous peoples, and thus, they are protected by article 27. The HRC stated that the right to enjoy one s culture cannot be determined in abstracto but has to be placed in context. The committee observed that article 27 not only protected the traditional means of livelihood of national minorities, as indicated in the state party s submission. But the methods of the traditional practices of indigenous peoples may have developed over the years, and which may include today modern technology. The HRC confirmed that such use of modern technology does not prevent the indigenous peoples from invoking article 27 (HRC 1992: para. 9.3.). Hence, modern ways of practicing traditional livelihoods are protected by article 27. This view was further made clear in the case of Apirana Mahuika (decided in 2000), in which the committee regarded the commercial and non-commercial fishing by Maoris (and even Maoris becoming major shareholders in modern fishing companies), as being protected by article 27 (HRC 1993: para. 9.4.). As far as indigenous peoples are peoples in the sense of international law, their right to self-determination within the meaning of article 1(2) (common to both IC- CPR and ICESCR) is of particular importance, at the very least where the management of their natural resources is concerned. The concept of self-determination is complex as it offers a great deal of debate both in terms of meaning and scope. There is a huge body of literature on this issue (see, for example, Anaya 2000), but it is not relevant for the purpose of this paper to examine this issue in depth. Suffice it to say that HRC, in its interpretation of article 1 of the covenants, advocates the idea that indigenous peoples are peoples in the sense of the resource management of the traditional land in which they live. This accords them the right of internal self-governance as peoples (CERD 1997: annex V) since [i]n no case may a people be deprived of its own means of subsistence by virtue of article 1(2) of the covenant. Indigenous peoples in the present day accept the sovereignty of the state and demonstrate the validity of their rights within the framework of international human rights law (Ulfstein 2004: 3). The development of modern international human rights law finds an interconnectedness between a people s right to subsistence (under article 1), and their right to enjoy their culture (under article 27) (see, for example, HRC s interpretation on the relevance of article 1 in the interpretation of article 27 in Apirana Mahuika and others v. New Zealand, HRC 1993: para. 9.2). The HRC in its concluding observation of the case of Apirana Mahuika, clearly emphasised the relevance of article 1 (especially its paragraph 2) and article 27 in the particular context of indigenous peoples (HRC 1999a, 1999b, 1999c, 2000a, 2000b, 2002). The ideas expressed were re-iterated in the Declaration on the Rights of Indigenous

162 HOSSAIN Peoples. Those party to the declaration have accepted the view of internal self-governance with respect to an indigenous people s traditional and cultural belongings, so that they can maintain and develop their political, economic and social systems or institutions in order to enjoy their own means of subsistence and development (UN 2007: articles 3, 20(1), 26). Additionally, their right to practice and revitalise their cultural traditions and customs (which include the right to maintain, protect and develop the past, present and future manifestations of their cultures) have been clearly articulated in the declaration (UN 2007: art. 11). When read together, the right to enjoy one s culture as a minority under article 27 and the right to the selfgovernance of resources belong to people under article 1(2) of the ICCPR, form a cultural manifestation of selfdetermination, and include a particular way of life associated with indigenous peoples. This view has also been acknowledged by national governments. For example, Canada acknowledges indigenous peoples inherent right to govern themselves in relation to matters that are internal to their communities, integral to their unique cultures, identities, traditions, languages and institutions, and with respect to their special relationship to their land and resources (AANDC undated). The concept of such rights is found in both customary and treaty law. Does the EU regulation undermine the rights of the Arctic indigenous peoples? The implementing regulation (EComm 2010) suggests three criteria for the indigenous hunt exception. These are: first, hunts must be conducted by Inuit or other indigenous communities; second, the products of hunts are at least partly used, consumed or processed within the communities according to their tradition; and third, hunts contribute to the subsistence of the community (EComm 2010: art. 3(1)). The regulation has not specifically mentioned how products from the indigenous communities will be identified, except by requiring a linked attested document to be issued by a recognized body (EComm 2010: arts. 3(2) and 7(1)). For indigenous peoples such procedure is complicated, and the exception itself is unclear since it is difficult to distinguish between the seal products obtained from the indigenous peoples and those obtained from other commercial suppliers. Since the EU regulation focused on transactions involving seal products, a distinction between seals that are cruelly killed and those that are more humanely killed is hard to trace (Fitzgerald 2011: 125). Moreover, the term traditionally conducted has not been defined within the legislation. A lack of clear understanding can also be detected on whether the traditionally conducted hunts include traditional methods of killing only or it may include modern usages as well. There is no distinction, for example, between the improper use of hakapik, or the proper use of a firearm to kill a seal instantaneously. In either case the resulting seal-related products are subject to the ban (Fitzgerald 2011: 125). Moreover, if the justification of EU seal regulation is that it is morally wrong to use cruel means, such as use of hakapiks or clubs to kill seal, an exception appears to be devious, which as a whole invalidate the ultimate concerns of the EU animal welfare policy of conforming to humane killing practices in the hunts. It is therefore, a clear contradiction on the part of the EU, and consequently, it is hard to see how the exemption be recognised (ICTSD 2010: 10). In any case, as a consequence of the EU ban on marketing and importing seal products, the overall seal hunts become unprofitable affecting enormously the Inuit and other indigenous communities. It is, however, important to note that in indigenous communities, especially in the Arctic, households are regarded as economic units in which mixed economy plays an important role. Mixed economy in the Arctic context suggests that half or more of household incomes come from wage employment, simple commodity production, or from government transfer payments; and at the same time reliance on other economic activities as well as dependence on household production contribute to economic activities (ACIA 2005: Ch. 12, at para. 12.2.2: 656). Hunting, herding, gathering and fishing activities do not only satisfy important social, cultural and nutritional needs, but also generate a cash economy for the community as a whole (ACIA 2005: Ch. 12: 656). Today in the Arctic indigenous communities, there is a clear inter-dependence between formal and non-formal economies, which combine both traditional subsistence activities and a modern market presence (Usher 2003: 177). As a result, indigenous subsistence activity does not constitute a separate and distinct economy in the northern communities, but is combined, at the individual, household, and village levels with wage labour and transfer payments. Both subsistence activities and the cash economy are mutually dependent on each other for providing consumption possibilities in the Arctic region (Aslaksen and others 2008: 75). Dependent upon opportunities and preference, the people move between subsistence and market activities (Usher 2003: 177). Moreover, the understanding of subsistence activities includes an increasingly meaningful economic life (Dussias 2010: 79) that a relevant indigenous community carries alongside activities related to cultural and spiritual survival. Subsistence therefore is understood as a system of human relations involving the organisation of production, distribution, and consumption within a community, in which the reproduction of social relations is as much a concern as the production of material goods (Usher 2003: 180). The hunting of seals and commercialising the by-products derived from the hunts are part of the culture traditionally practised by the Inuit and other indigenous peoples of Canada, Greenland and Norway. Today, such culture has added economic incentives and which as a whole is understood as subsistence activities. For indigenous peoples it is crucial to preserve these activities as part of their subsistence rights; the rights that, as discussed earlier, international human rights law recognises in present day