Do you know that Canada agrees with the intent to improve animal welfare of Council Regulation 3254/91? It does, but is opposed to the use of an import prohibition to force other jurisdictions to make the changes demanded by the EU. Accordingly, I will make three points:
First: The animal welfare issue is not the issue of the jaw-type leghold trap. The issue is how to achieve demonstrably better trapping methods for all traps including jaw-type leghold traps.
Second: The legal issue is the EU fur import prohibition itself. The WTO provides certain rights and obligations. We believe that the EU import prohibition is contrary to WTO Article XI, and is not justified by any of the exceptions provided under Article XX.
Third: The best way to resolve the animal welfare issue at the same time as the legal issue is to agree with the EU and other countries on what constitutes better trapping standards.
THE ISSUE IS ANIMAL WELFARE, NOT THE JAW-TYPE LEGHOLD TRAP
The real issue is how to determine the welfare of animals caught in traps and then how to build traps of all kinds which improve that welfare.
Often lost in this issue are facts about trapping which govern the parameters of the issue. In terms of numbers, about 1 million animals are trapped in Canada for their pelts annually. In the EU a rough approximation is that 5 million animals are trapped annually. This includes at least 1 million muskrat, of which at least 300,000 to 400,000 are caught annually under the Netherlands muskrat eradication program funded by the state. Those who campaign against the trapping regimes in third countries have not publicized the EU figures or the methods used.
By far the most common method (between 90 and 95%) for trapping animals in Canada and in the EU is to use a trapping system that kills the animal. This includes devices on land which kill the animal (such as body traps and snares), as well as devices used underwater (body traps, snares, cages, jaw-type leghold traps). Each species is often caught by one of several traps, and there is no one trap that catches them all. It is surprising that the most common method used in the Netherlands to trap muskrat is an underwater cage which the muskrat swims into but does not swim out. Unlike many other types of trap, this trap can catch several animals at once without resetting.
Only a relatively small percentage of animals (5-10%) are trapped in Canada and the EU by a method which holds the animal alive until the trapper makes contact with it. These restraining traps are used because there is often no other practical way to catch certain species. In some instances, such as in urban areas, killing traps are not permitted. In the EU such traps include neck snares, box cages, legsnares; in Canada we use different types of jaw-type leghold traps as restraining devices but also legsnares and box cages.
If the issue is to improve the welfare of animals which are trapped, then it is clear that more animals will be affected if killing as well as restraining traps are subject to standards. It is also clear that animal welfare will be enhanced if traps in the EU are controlled as well.
In all discussions, everyone wants to use traps which either kill as quickly as possible or which hold an animal with the least amount of harm. One of Canada's principles is that a decision has to be made as to what constitutes currently acceptable welfare in a trap. Traps for each species should be measured against that standard and the use prohibited for the ones that do not meet that standard. This is not an easy standard to set, because there is no single accepted definition of what constitutes good animal welfare. A standard that is not realistically attainable remains a paper standard, while a standard that is too low does not result in any differences to animal welfare. As well, never-ending discussions on this matter only mean one thing - no standard. To our knowledge there is no EU legislation which defines good welfare for wild animals.
Under the principle of measuring animal welfare effects, Canada has developed a number of new traps for individual species, banned all traps with teeth (not the case in the EU), banned jaw-type restraining leghold traps for a number of species, and restricted their use to killing traps for other species. Unfortunately these developments do not meet the EU's requirements for avoiding an import prohibition under Council Regulation 3254/91.
The EU approach has been to equate "bad" welfare with "the jaw-type leghold trap", and presumably "good" welfare with its absence. The only other EU legislation applicable to trapping is the Berne Convention which prohibits signatories from using traps "if applied for large scale or non-selective capture or killing". However, the Berne Convention applies this prohibition only to certain species, and in any event, signatories are able to opt out of applying this prohibition altogether, or of applying it to individual species. We are not aware that the Commission is considering any legislation which would change this situation.
Within the EU, there are no common standards between individual member states except for the prohibition on the use of the jaw-type leghold trap. For example, it is legal to use neck snares in France and the UK, but not in Germany; drowning is permitted for wild animals in Germany, France, Belgium and the Netherlands but not in Finland unless it is done with state authority. Traps with teeth are banned in France and the UK but permitted in Germany. There are rumours that at least one Member State still authorizes the use of some jaw-type leghold traps under national legislation. There are numerous other examples. It should be obvious that this situation does not lead to a consistent EU approach for improving the welfare of animals caught in traps.
THE WTO AND EU LAW
When the EU import prohibition is viewed in generic terms, it is clear that the import prohibition falls into narrow circumstances. First, it is an import prohibition which is triggered by a production process (if trapping is such a process). This production process is one that does not affect the physical characteristics of the product. As well, this production process occurs not only within the jurisdiction, but in the territory as well, of a third country. Finally, this production process has no physical trans-boundary effects or effects on the environment in terms of conservation or endangered species. The extent to which WTO rights and obligations apply in cases like these is being discussed in a variety of fora and is by no means settled.
There seems to be no question that the import prohibition contained in Article 3 of Council Regulation 3254/91 is contrary to WTO Article XI. The question that seems to be debated is whether the EU can justify it under any of the exceptions under Article XX. We believe not. Dr. Nollkaemper's article(1) in effect shows that justifications for Art XX exceptions seem to be strained at best.
In the past, WTO and GATT dispute settlement panels have taken a narrow interpretation of any claim for exceptions under Article XX, and there is little reason to believe that a new WTO panel would do otherwise. Dr. Nollkaemper's article, in its section entitled "The Danger of Overbreadth", has identified a number of elements of the law, and concluded that they might cause a dispute settlement panel to find the EU import prohibition incompatible with the Canada's rights and obligations under the WTO. I would add another element; what would happen to the persuasiveness of an EU defence if at least one Member State authorized by law the use of a jaw-type leghold trap?
The publicity and emotions surrounding this case could severely test the WTO system. The EU would have a difficult time defending a manifestly WTO inconsistent law. As well, it is not clear that a panel would rule on the contentious issues. WTO members may not want a panel to rule on issues which have not been the subject of negotiations. The bottom line seems to be that this is a WTO case that nobody wants. We are willing to defend our trading rights in the WTO if we have to.
I have personal observations about the Netherlands fur import prohibition of December 1995 for certain species. This regulation amended the Netherlands law which implements the CITES Convention on trade in endangered species. The Netherlands regulation seems even more restrictive than Regulation 3254 as even countries which have banned the use of jaw-type leghold traps, and so complied with the EU Regulation, can no longer export listed furs to the Netherlands. This seems to undermine the intent of Regulation 3254 to encourage better trapping practices in third countries. As well, the species have been listed under this CITES import control law to protect endangered species, in spite of the fact that none of these species are endangered in Canada. Lastly, the Netherlands has now listed muskrat as an endangered species for import purposes, in spite of its state-funded program to eradicate this species domestically.
CANADA AND THE EU SHARE COMMON OBJECTIVES
The obvious way to resolve both these situations is to find "internationally agreed humane trapping standards". This possibility was foreseen in Regulation 3254/91, and would allow signatories to escape the EU import prohibition. In practice, it has been extremely difficult to negotiate. The International Organization for Standardization (ISO) Technical Committee 191 worked for a number of years on such standards but was unable to reach a decision on what constitutes a humane trap. This is hardly surprising as several delegations to the ISO believed that no trap could be termed humane, or wanted a standard set so high as to be unrealistically practicable. While some might describe this position as philosophically principled, the net result was that no standards were found, and consequently there were no mandatory improvements in traps. This did not improve animal welfare, nor did it resolve the imminent trade dispute brought about by the EU Regulation.
Canada, the EU and Russia initialled an agreement on humane trapping standards in December 1996. Negotiations are continuing between the EU and the United States. This was a difficult agreement to negotiate and Canada concluded it under the duress of an imminent import prohibition. Let me tell you about this agreement.
It sets mandatory standards for killing traps and restraining traps in the signatories. As the agreement covers killing traps, and as it includes traps used in the EU, it affects many more animals than a simple prohibition on jaw-type leghold traps. The EU Environment Council did not question the standards themselves at their meeting of 9 December nor did they reject the Agreement.
Canada and Russia agreed to prohibit all use of conventional steel jawed restraining traps within 4 years. What the EU was not able to achieve by a unilateral measure it has achieved through negotiation.
This agreement will harmonize the trap standards within the EU, and with other signatories.
Objections have been raised about the continued use of jaw type leghold traps. Under the agreement, all traps will only be permitted if they are shown to meet the standard. Consequently, only those underwater jaw-type leghold traps and padded jaw-type leghold traps which meet the standard will be permitted.
I would like to make some comments on the video of animal trapping shown this morning by the Dutch Society for the Protection of Animals:
CONCLUSION
Notes:
The constant focus on jaw-type leghold traps is misleading and misplaced. The image of these traps as a generic variety is used as a highly effective and emotionally charged symbol. This symbol equates the absence of these traps with better animal welfare. This is not a correct assumption. In many cases it can be demonstrated that devices other than jaw-type leghold traps lessen the welfare of the trapped animal.
From Canada's perspective the major legal element is the import prohibition of Council Regulation 3254/91. It is because of the EU legislation that the Canadian government has become involved.
Canada and the EU share the same objective of improving the humaneness of traps for wild animals. Where we differ with the EU is in the way we have tried to improve such standards. Canada has not requested the repeal of the import prohibition
contained in Article 3 of Council Regulation 3254/91, but will challenge it in the WTO if it is applied.
This is the first multilateral agreement with direct animal welfare considerations. This alone serves as a precedent.
I have outlined how Canada and the EU have differed on the approach to animal welfare and trapping. The issue for Canada is that animal welfare considerations should apply to all traps, not an arbitrarily selected group of traps and not just to species largely found outside the EU. Should the EU import prohibition be placed before WTO dispute resolution, it is more than likely that it will be found to be an import prohibition inconsistent with WTO Article XI and not justified by exceptions under Article XX. This situation of differing standards and the potential WTO challenge should be seen as an opportunity, not a problem. It can be mutually resolved by the agreement on humane trapping standards which will set a common mandatory standard for the EU and for Canada, and avoid a WTO challenge. It will also improve the welfare of animals caught in traps.
(1) The Legality of Moral Crusade Disguised in Trade Laws; An Analysis of the EC 'Ban" of Furs from Animals Taken in Jaw-type leghold Traps, Journal of Environmental Law, Vol 8, No 2, pp 237-256