The Legal Question of Morality
| DOI | 10.1177/0964663915624343 |
| Author | Nikolas P Sellheim |
| Published date | 01 April 2016 |
| Date | 01 April 2016 |
| Subject Matter | Articles |
Article
The Legal Question of
Morality: Seal Hunting and
the European Moral Standard
Nikolas P Sellheim
University of Lapland, Finland
Abstract
The commercial seal hunt has faced significant opposition through campaigns and public
opinion. Based on this opposition, the European Union (EU) adopted a regime in 2009,
effectively shutting down the EU market for commercial seal products. This ban appears
to be based on a European moral standard relating to the welfare of animals, and the EU
has successfully defended this claim under the Dispute Settlement Process of the World
Trade Organization (WTO). This article critically examines whether such a moral
standard exists or whether it is merely an opinion without deeper moral contexts. It
further discusses the problems relating to drawing moral conclusions based on ‘public
opinion’ and responses to a possible accompanying ‘moral standard’. The article delves
into the legal dimension of a ‘European morality’ and discusses in how far moral concerns
have been dealt with under the WTO and before EU Courts. It becomes evident that
whilst arguing for a European moral standard under the WTO, the EU has shown in
European case law that the determination of moral standards rests with the nation
states.
Keywords
European Union, morality, legal dimension, public opinion, seal hunting, WTO
Introduction
It is cute. With its big eyes and friendly face the harp seal (Pagophilus groenlandicus)
undoubtedly belongs to the group of animals one can easily refer to as ‘charismatic
Corresponding author:
Nikolas P Sellheim, University of Lapland, Rovaniemi 96101, Finland.
Email: nikolas.sellheim@ulapland.fi
Social & Legal Studies
2016, Vol. 25(2) 141–161
ªThe Author(s) 2016
Reprints and permission:
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DOI: 10.1177/0964663915624343
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megafauna’ (e.g. see Hossain, 2008). It appears evermore difficult to understand how
human beings can set out to kill these beautiful creatures. In fact, there seems to be a
discursive consensus that it is morally wrong to kill these animals and use their products
for commercial trade.
Based on this assumption in September 2009, the European Union (EU) adopted a
total ban on trade in seal products with Regulation 1007/2009 (henceforth called ‘Basic
Regulation’) (European Parliament, 2009). It came into effect 1 year later when Com-
mission Regulation 737/2010 (henceforth called ‘Implementing Regulation’) (European
Commission, 2010) was adopted. This means that the EU has barred all seal products
irrespective of the applied animal welfare practices from its internal market whilst transit
through the Union is not affected by the ban. It seems to follow a European-wide moral
opposition towards seal hunting and the EU has been able to defend this claim at the
World Trade Organization (WTO) when Canada and Norway challenged the legality
of this trade ban.
But what is European morality? What are European moral standards? Does the EU
Seal Regime follow a European moral standard relating to animal welfare? These are the
questions that this article attempts to answer. Issues of morality have been discussed far
and wide by numerous scholars, philosophers, religious leaders and others. This article
does not delve into philosophical and religious elements of morality but aims to take a
legal approach. This is not to say, however, that philosophy, religion and law can be fully
separated with regard to morality as moral epistemology and legal theory have had a long
interaction (e.g. see Posner, 1997). Notwithstanding, in order to tackle the posed ques-
tions within a legal context, the focus here lies on three elements: Firstly, the legislative
process of the Seal Regime is considered throughout the paper. Secondly, it is assessed in
how far morality is, and can be, adjudicated within the WTO and in the European Courts,
and whether there is a legal conception of European morality. Thirdly, the public is
included in this assessment and in how far public opinion can be utilized to draw con-
clusions on specific moral standards.
The Seal Regime was primarily concluded over opposition towards the Canadian
commercial seal hunt, and it constitutes the hunt which the author is most familiar with.
The first section, therefore, provides a general background on both the Seal Regime and
the Canadian seal hunt. It then briefly turns towards the dispute carried out under the
WTO in which the core element of this article – the Seal Regime as part of the EU moral
standard on animal welfare – is presented. The third section covers how public opinion
perceives the seal hunt and how this perception is interpreted. Lastly, the principle of a
‘European morality’ is discussed taking into consideration scientific knowledge and
legal interpretation of the concept by the Court of Justice of the European Union (ECJ)
and the European Court of Human Rights (ECtHR).
General Background
The EU Seal Regime
The EU Seal Regime consists of the Basic Regulation of 2009 and its Implementing
Regulation of 2010. According to Article 3 of the Basic Regulation, and further
142 Social & Legal Studies 25(2)
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