YJIL Symposium: Howse and Langille Respond to Comments on Permitting Pluralism

Robert Howse is the Lloyd C. Nelson Professor of International Law at New York University School of Law. Joanna Langille is a 2011 graduate of New York University Law School.]

This post is part of the Yale Journal of International Law Volume 37, Issue 2 symposium. Other posts in this series can be found in the related posts below.

We would like to thank Professors Perisin, Lester, and Feichtner for taking the time to comment on our piece. Their remarks are extremely thoughtful, and in some instances help us to clarify our claims. We have also had the benefit of their own thinking and writing on this case in preparing our article. Finally, we would like to thank YJIL for organizing this Symposium.

Response to Professor Perisin:
Professor Perisin first suggests that the aim of the EU seal products ban is to protect the fox and mink industries within the EU. This raises the issue of how one ascertains whether the aim (or motive) of a measure is protectionist for purposes of WTO law. It would be helpful to understand better the methodology on the basis of which she claims that this is the likely aim of the measure. For example, is it based on legislative history that we somehow missed? Or were there sizable campaign contributions from the mink and fox fur industries to MEPs?

We also note that there is evidence that the EU has imposed significant regulatory control on the way in which animals are treated in the EU’s own fox and mink industries. The EU has, in the past, taken legislative action to regulate hunting and trapping, such as the EU’s prohibition on the use of leghold traps. It has also subjected fox and mink farming to the general requirements for the protection of animals kept for farming purposes. The EU has demonstrated that it is willing to regulate the domestic fur industry to minimize animal cruelty.

In her second major critique, Professor Perisin argues that determining what constitutes cruelty to animals (in the moral sense) is a scientific issue. This is a ground of deep disagreement between Professor Perisin and ourselves. Our analysis of the normative basis of animal welfare is intended to show that whether a given level or kind of animal suffering crosses the cruelty threshold is ultimately a moral question, one of conscience, of “beliefs that per se cannot be scientifically proven.” Professor Perisin characterizes the concern with the welfare of seals as based on “irrational, emotional attitudes.”

By presenting animal welfare concerns in this pejorative judgmental way, she proves our point- the legitimacy of the WTO is likely to decline if it starts making judgment calls about whether the particular moral beliefs of a given society are “irrational, emotional attitudes” or not. It is precisely against the notion of the WTO as a vehicle of the hegemony of secular, instrumental rationalism that we wrote this Article. There is ample evidence that seals suffer, both physically and psychologically, when they are hunted. In this basic sense, Europeans do rely on the science. The question is from what higher standpoint of unemotional rationalism does Professor Perisin trivialize or ridicule the moral choice of European citizens to give a special moral significance to that level and kind of suffering,
deeming it to be cruel.

Indeed, it is hardly in the name of dispassionate rationalism that Canada is defending the seal hunt. It is because doing so wins support from a concentrated constituency in Canada, and therefore has some kind of short-term political expediency for the government in power. Without massive government subsidies the industry would already be dead.

Third, Professor Perisin also argues (along with Professor Feichtner) that the seals ban in its present form is outside the competence of the EU institutions.

We do not address concerns of EU “constitutional” law in our article, except to which that is necessary to explain some of the specific features of the ban and its application. But we have some thoughts on the implication that a pluralist perspective. Such as ours would weigh against the imposition of a ban for moral reasons throughout the EU. First of all, one basis of the pluralist perspective on the WTO is the “non-constitutional” nature of the WTO system. The WTO lacks genuine political institutions-it has no parliament at all and the size and diversity of the membership make a genuine process of collective will formation largely impossible. Without entering into the issue of the positive law governing EU competences, certainly the level and diversity of support for the ban among EU parliamentarians from all regions in the union lends it legitimacy from a pluralist perspective. Secondly, the EU is a customs union. The effective enforcement of individual member state bans may be compromised by the decision of other EU states who do not have a ban. In these circumstances, it is simplistic to suggest that pluralism is vindicated by the absence of an EU ban. Finally, does the ban really deny to important sectors of the EU population the ability to express different moral beliefs than those underpinning the ban? Again, all this goes to legitimacy not positive law as we are not EU law experts.

All this being said, we do not understand either Professor Perisin or Professor Feichtner to be suggesting that the WTO adjudicator should make a determination of the issue of EU competences-as the AB held in Mexico-Soft Drinks the WTO adjudicator has lacks proper jurisdiction to make determinations about the legality of measures under the norms of regional integration arrangements or to enforce those norms.

Response to Professor Lester:
Simon Lester raises very important systemic issues in his comment. He asks whether the WTO should be in the business of disciplining non-discriminatory public policy at all and invites us to take our reflections on legitimacy further. In a way, as he shrewdly perceives, the difficulty we identify in conducting a “necessity” analysis where dealing with non-instrumental regulation may point to the wisdom of a focus on discrimination.

Yet what is “discrimination”?

In the end, conclusions about the existence of “discrimination” may well reflect implicit if not explicit judgments about what are reasonable or understandable public policies. Thus, our main concern in the Article with the sensibility and assumptions that govern the approach of WTO adjudicators in dealing with non-instrumental regulation are also pertinent if the relevant optic for scrutiny is non-discrimination rather than necessity. And indeed, we would emphasize that while we discuss exceptions extensively, our conclusions are that, properly read, the operative provisions of both GATT and TBT, are not violated in the first place by the Seals ban.

Response to Professor Feichtner:
Professor Feichtner raises some very important issues about the terminology and analytical categories we deploy in the Article. She asked whether our expression “non-instrumental morality” is misleading. Her point would appear to be that the non-instrumental element is simply the use of a trade measure the intended effectiveness of which goes beyond the actual avoidance of suffering to seals to expression of moral disapproval of the practice.

It is true that there is a certain kind of reductionist utilitarian position that would basically seek to understand expression of moral disapproval in terms of the utility that citizens gain from such expression, i.e. that they feel better. But regardless of whether this is a theoretically adequate conception, we intended something more, or at least different – that the element of moral revulsion in the first place includes not simply the suffering of the animals but the state of the souls of their killers. It is true that the need for expression is amplified by the second concern. It is hard to articular how cruelty to animals could degrades man in a welfarist vocabulary without somehow distorting the moral phenomena at issue. These are important questions of philosophy and moral psychology, and it may be that Professor Feichtner is right that we have not provided a fully clear and distinct account of them in this Article. But if that is so, it would be all the more reason for the WTO adjudicator to treat lightly here, respecting the multiple kinds of moral salience this sort of measure may have, and certainly not imposing a crude means/ends methodology.

Further, Professor Feichtner suggests it would be a mistake to say farewell to rationality. We do not mean to suggest that a measure that depends on a set of beliefs that ultimately cannot be either proven or refuted by what is commonly understood as “rationality” is not tractable to any kind of reasoned analysis. Our discussion of sincerity suggests that, even if a conception of instrumental reason is not applicable in the way it might for other kinds of regulations, the adjudicator needs to consider the fit or coherence of the measure with the beliefs that inform it. The point is that this is not simply a means/ends analysis, but may require a different normative sensitivity.

We have tried to illustrate this approach in the way in which we ourselves analyze the measure by looking at its underlying normative basis, which we have argued are partly instrumental and partly non-instrument. Relevant factors to consider when analyzing non-instrumental reasons for a trade restrictive measure are whether the measure is situated within a universe of other measures or initiatives vindicating the same values; whether the measure is the product of social deliberation of a kind that makes sense in terms of collective values identification or determination; and whether one can make sense of the way that the underlying moral bases of the measure are balanced with other public values, including any exceptions within the measure. Elements of rationality are present throughout this analysis, though in a different way than would be typical in the scrutiny of a purely instrumental measure. These elements of rationality also compatible with a notion that the ultimate values themselves cannot be expected to be proven by secular “reason”, and they are thus consistent with a perspective of moral pluralism.