Abstract

http://ssrn.com/abstract=1969567
 


 



Permitting Pluralism: The Seal Products Dispute and Why the WTO Should Permit Trade Restrictions Justified by Noninstrumental Moral Values


Robert L. Howse


New York University School of Law

Joanna Langille


affiliation not provided to SSRN

December 7, 2011

Yale Journal of International Law, Vol. 37, 2012
NYU School of Law, Public Law Research Paper No. 11-82

Abstract:     
This Article examines the extent to which countries can use animal welfare concerns to justify placing restrictions on international trade, under the law of the World Trade Organization (WTO). We argue that non-instrumental moral and religious concerns should be a legitimate source of trade policy. To make this claim, we examine a current WTO dispute between the European Union (EU), Canada, and Norway. The EU has banned seal products from being sold in the EU, because of animal welfare concerns regarding how the animals are hunted and skinned. Canada and Norway have challenged this regulation at the WTO, arguing that animal welfare is not a legitimate rationale for restricting trade under the law of the WTO. First, we show that animal welfare has long been a motivation for legislation, both in Europe and elsewhere. Second, we demonstrate that the EU measure was taken because of the moral belief that animal welfare should be protected, a belief related both to avoidance of actual suffering of animals and about the appropriate human attitude toward their treatment. Third, we argue that the EU measure does not violate any WTO provisions and, even if it did, it could be justified under the General Exceptions clause (Article XX) of the General Agreement on Tariffs and Trade (the primary source of WTO law). Finally, we argue that the WTO should not deny countries the ability to regulate for moral reasons. If the WTO were to do this, it would risk imposing a secular, materialist, instrumentally rational worldview on its member states. Instead, the WTO should permit pluralism – competing notions of righteousness. – and allow countries to regulate for moral reasons. The EU’s seal products ban should be upheld by the WTO. The WTO legal framework, moreover, must be able to accommodate and accept that animal welfare measures may have at the same time both a utilitarian or instrumental aspect (improving animal welfare outcomes) as well as an expressive aspect, indicating moral opprobrium at the inhumane treatment of animals.

Number of Pages in PDF File: 67

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Date posted: December 8, 2011 ; Last revised: June 30, 2012

Suggested Citation

Howse, Robert L. and Langille, Joanna, Permitting Pluralism: The Seal Products Dispute and Why the WTO Should Permit Trade Restrictions Justified by Noninstrumental Moral Values (December 7, 2011). Yale Journal of International Law, Vol. 37, 2012; NYU School of Law, Public Law Research Paper No. 11-82. Available at SSRN: http://ssrn.com/abstract=1969567

Contact Information

Robert Howse (Contact Author)
New York University School of Law ( email )
40 Washington Square South
New York, NY 10012-1099
United States
Joanna Langille
affiliation not provided to SSRN ( email )
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