YJIL Symposium: Introducing 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.

Our 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 noninstrumental moral and religious concerns are 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 European Union has banned seal products from being sold in the European Union, 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 objective for restricting trade.

First, we show how animal welfare has long been a motivation for prohibitive legislation, both in Europe and elsewhere, and that animal welfare concerns have prompted the European Union to take numerous prior efforts to promote seal welfare.

Second, we argue 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 the appropriate human attitude toward their treatment; the EU measure was motivated by a sincere and genuine desire to protect seals from cruelty and to express the belief that it is morally unacceptable for the EU to be complicit in the cruelty inherent in the production of seal products through the consumption of products that result from these practices.

Third, we explain 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 on trade in goods).

Finally, we set out the strong institutional reasons to avoid interpretations of WTO law that would deny countries the ability to regulate for moral reasons. If the WTO were to do this, it would risk attempting to impose 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 (with the recognition of course that states are also bound by non-WTO norms, such as international human rights law, which also shape the limits of their prerogative to regulate morality). The WTO legal framework, moreover, must be read so as to accept that animal welfare measures may at the same time have 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.