YJIL Symposium: Non-Instrumental Public Morals Justification of Trade Restrictions: A Comment on Howse and Langille

[Isabel Feichtner is a professor of law and economics at Goethe Universität Frankfurt]

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.

Robert Howse’s and Joanna Langille’s article on the Seal Products Dispute is a truly admirable piece of normative doctrinal scholarship. The authors do not hide their preferences with respect to animal welfare and the protection of seals in particular. Their propositions as to the interpretation of WTO law are, however, not merely guided by this specific policy preference. Instead their argumentation is supported by a larger vision of global governance and the proper balance between international trade law and domestic regulatory autonomy, all the while thoroughly grounded in the WTO’s own case law.

Having been consistently inspired and convinced by the writings of Rob Howse on the WTO I am not the one to argue with the authors’ reconstruction of the trade regime that emphasizes the need for deference to domestic regulatory choices and that wishes (where possible) to limit the disciplines of trade law to prohibitions of discrimination. Thus, I will not offer a fundamental critique. Instead I will take up what intrigues me most in their article — the notion of “non instrumental public morals justification” – and raise two questions: first whether the seals dispute is a suitable test case for such a justification given that the EU itself had to justify the trade restrictions in instrumental terms; and second whether public morals justifications — even though non-instrumental — should be submitted to some form of rationality test.

The (Non-)Instrumentality of the EU Seal Products Ban

For Regulation 1007/2009 to conform to EU law the Council of the European Union and the European Parliament had to argue that the seal products ban contained in this regulation was necessary for the functioning of the internal market. Since the EU treaties do not grant to the EU a competence to adopt a trade ban for the sole purpose of animal welfare protection, Council and Parliament based the ban on Art. 95 of the Treaty establishing the European Community (now Art. 114 Treaty on the Functioning of the European Union). For the same reason the trade ban on cat and dog fur in Regulation 1523/2007 was also based on Art. 95 TEC. This legal basis allows for “the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market.” As a consequence of this choice of legal basis the seals ban had to be justified in terms of its instrumentality for the functioning of the internal market. A convincing case had to be made that the (almost complete) ban on trade in seal products within the EU pursued the objective of the functioning of the internal market.

As Howse and Langille have convincingly argued a measure may pursue multiple purposes. Indeed Art. 114 TFEU itself mandates the EU to pursue in its harmonization legislation a high level of health, safety, environmental and consumer protection. Whether the EU is competent, however, to pursue such aims in a non-instrumental fashion is open to debate. Taking a similar posture to the EU as Howse and Langille do vis-à-vis the WTO one may be inclined to argue that respect for member state diversity and value pluralism within the EU mandates a restrictive stance of the EU with respect to expressive legislation, signifying moral opprobrium.

Thus we may have the curious situation that the seal products ban, which may plausibly be interpreted as not only pursuing the aim of animal welfare protection but also as an expression of non-instrumental morality, is based on a legal competence which should be interpreted as not authorizing such expressive legislation. These doubts concerning the EU’s competence concern an intricacy of EU law that will be beyond the jurisdiction of the Appellate Body. I mention them here, however, since they point to a certain parallelism between EU/Member State relations on the one hand and WTO/member relations on the other. For the EU lawyer the EU might be just as ill-suited to express moral opprobrium at the treatment of seals as the WTO is ill-suited to question the legitimacy of such an expression.

Moreover, the need to fit the seal products ban within the internal market rationality required by Art. 95 TEC may affect the examination of its legality under WTO law. This may be the case when a panel inquires about the “likeness” of seal and non-seal products under Art. III:4 GATT or Art. 2:1 TBT Agreement. In order to make the case that a ban was needed to promote the functioning of the internal market the EU organs had to argue that there was a danger that consumers would not be able to differentiate between seal and non-seal products. Given such potential confusion the ban for seal products would improve the functioning of the market in non-seal products. Consequently the preamble to Regulation 1007/2009 states in recitals 7 and 8:

(7) The existence of such diverse [national provisions governing the trade, import, production and marketing of seals products] may further discourage consumers from buying products not made from seals, but which may not be easily distinguishable from similar goods made from seals, or products which may include elements or ingredients obtained from seals without this being clearly recognizable, such as furs, Omega-3 capsules and oils and leather goods.
(8) The measures provided for in this Regulation should therefore harmonise the rules across the Community as regards commercial activities concerning seal products, and thereby prevent the disturbance of the internal market in the products concerned, including products equivalent to, or substitutable, for seal products.

Equivalence and substitutability between seal and non-seal products as proposed by the regulation may serve as strong arguments for “likeness” within the meaning of Art. III:4 GATT and Art. 2:1 TBT Agreement. Likeness may nonetheless be dismissed if it is shown that there exists indeed a strong consumer preference for products without seal ingredients which consumers may however have problems to exercise due to difficulties in distinguishing seal and non-seal products.

The “internal market rationality” of the ban also explains why Regulation 1007/2009 neither prohibits the transit of seal products nor exports of seal products. These activities are excluded from the regulation’s scope since they cannot be related to the functioning of the internal market. Incidentally they reduce the impact of the ban on economic actors within the EU as compared with a more comprehensive prohibition on trade in seal products.

Rationality of Trade Restrictions

Howse and Langille put forward the thesis that WTO law should permit pluralism in the sense that it should not limit Members’ freedom to restrict trade in pursuit of “noninstrumental moral values”. I find the term “noninstrumental moral values” slightly misleading and would argue that at issue are rather noninstrumental trade measures to realize or express moral values. In the concrete case Howse and Langille consider the seal products ban to be non-instrumental in the sense that it might go beyond what is required to protect animal welfare. This “excess”, according to Howse and Langille, is justified as an expression of EU citizens’ moral disapproval of the seal hunt. Such regulation could also be interpreted as the collective choice of a society not to be complicit through consumption by individual citizens in what it considers a moral wrong. This collective choice may only fully be realized through a ban and not by enabling each individual to make an informed consumption decision, for example on the basis of information provided by a label.

Where such a ban has a more detrimental impact on foreign goods as compared to domestic goods or where it differently impacts goods from different members the question arises, as Howse and Langille acknowledge, how “to assure that the measure is not a pretext for protectionist, discriminatory treatment of imports” (p. 418). To identify the sincerity of a moral measure the authors argue “WTO officials and adjudicators need to become familiar with and have the imagination to see the workings of a system of values that may be alien to their own moral sensibilities, especially at first glance. This is in part an exercise of imagining otherness” (p. 430); they further claim that “[t]here is no requirement that, just because they affect trade, all of a member’s policies be rational.” Whilst I am sympathetic to the claim that WTO law should allow for noninstrumental measures that restrict trade I am rather skeptical of the view that such measures should not be submitted to a rationality test.

Rationality requirements such as the giving of reasons to support the adoption of a measure or the requirement that the consistency of the measure with other government policies be explained may not only allow for scrutiny as to protectionist motivations, but also bolster the legitimacy of the measure vis-à-vis the member’s own citizens. At the same time a rationality test may take better account of the pluralist membership of the WTO than other proposals to widen WTO members’ “policy space” (e.g. by Pascal Lamy or Dani Rodrik) that refer to democratic credentials for the justification of trade measures that contravene trade disciplines. Rationalization may indeed be more difficult and should not be required with respect to religiously motivated measures; this in my view does not weaken the case for a rationality requirement with respect to moral measures not based on religion.

The authors’ own argumentation seems to indicate support for a rationality test. In their article they go to great lengths to demonstrate the rationality of the seals ban. They provide explanations for the EU approach to seal protection by pointing to international policies on animal welfare and the animal welfare traditions within the EU, they explain why the attitude towards seals may differ from attitudes towards other animals, how the exceptions for Inuit hunt can be reconciled with concerns for animal welfare, why protection standards with respect to animals that serve the production of luxury goods may differ from those with respect to animals that serve the satisfaction of more basic needs. Howse and Langille thus rationalize in moral terms the ban on seals that a cynic like me might have too easily dismissed as a gratuitous act by which the European Parliament sought to demonstrate strength, not based on truly held moral convictions but rather expressive of the double standards of EU citizens moved to tears by their tabloids’ images of white seal pups bleeding in the snow.