Pluralism in Practice: Moral Legislation and the Law of the WTO after Seal Products

71 Pages Posted: 3 Apr 2015 Last revised: 3 Dec 2015

See all articles by Robert L. Howse

Robert L. Howse

New York University School of Law

Joanna Langille

New York University School of Law

Katie Sykes

Thompson Rivers University - Faculty of Law; Dalhousie University - Schulich School of Law

Date Written: April 1, 2015

Abstract

This article examines the relationship between the law of the World Trade Organization (WTO) and morally motivated legislation of the WTO's Member states. Building on our 2012 article entitled Permitting Pluralism, we argue that the WTO should adopt a pluralistic approach to morally motivated legislation of its Member states. That is, WTO law should allow the greatest latitude possible for states to adopt morally motivated legislation, and should permit all types of moral and religious reasons for restricting international trade, including non-instrumental moral reasons. The WTO should not attempt to second-guess the moral and religious commitments of its Members, and it should permit morally complex legislation, involving trade-offs and multiple, possibly competing, motivations. Instead the WTO should confine its role to a thorough analysis of any discriminatory aspects of the measure to determine whether the measure is protectionist. This approach is justified by the WTO's institutional capacity and purpose, when understood in historical context. After articulating this pluralist approach, we analyze the recent EC-Seal Products dispute at the WTO, a watershed WTO case on morally motivated domestic legislation, to determine whether the WTO's adjudicatory bodies adopted an appropriate attitude to the European Union's legislation banning the importation of seal products for explicitly moral reasons, out of concern for animal welfare. We argue that the Seal Products case largely followed our pluralist approach, adapting the law of the WTO to accommodate non-instrumental moral reasons for regulating by WTO Member states. Finally, we defend the Seal Products decision against criticisms that have emerged in the scholarly literature, including those that have criticized our pluralistic approach to morally motivated legislation.

Suggested Citation

Howse, Robert and Langille, Joanna and Sykes, Katie, Pluralism in Practice: Moral Legislation and the Law of the WTO after Seal Products (April 1, 2015). 48 Geo Wash Int'l L Rev (2015), pp. 81-150; NYU School of Law, Public Law Research Paper No. 15-05. Available at SSRN: https://ssrn.com/abstract=2588509

Robert Howse (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

Joanna Langille

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

Katie Sykes

Thompson Rivers University - Faculty of Law ( email )

900 McGill Road
Kamloops, British Columbia
Canada

Dalhousie University - Schulich School of Law ( email )

6061 University Avenue
6061 University Ave
Halifax, Nova Scotia B3H 4H9
Canada

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