YJIL Symposium: The Seal Products Dispute and the Boundaries of Trade Law

[Simon Lester is the President of WorldTradeLaw.net and a trade policy analyst at the Cato Institute.]

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.

Over the past two decades, there has been an effort by many trade law academics and others to define the boundaries of international trade rules in a way that disciplines trade restrictions, while allowing sufficient policy space for governments to regulate in legitimate ways. Rob Howse has been at the forefront of this effort, having written numerous articles, on a variety of trade law topics, that address various aspects of these issues. In their YJIL article on the WTO Seal Products dispute, Rob and Joanna Langille continued this effort, by trying to address this problem in the context of a specific kind of measure, one that involves what they refer to as “expressions of intrinsic moral or spiritual beliefs”. (In the case of the seal products ban at issue, it is “the community’s ethical beliefs about the nature of ‘cruelty’ in the unacceptability of consumption behavior that is complicit with that cruelty.”) They argue that WTO law should allow such measures, even if trade is restricted as a result. More generally, they articulate a vision of “pluralism” under the trade regime that “recognizes the importance of expressive, non-instrumental rationales for state decision-making”.

A specific focus of the piece is the distinction between “instrumental” and “non-instrumental” measures. The authors note that while a traditional means/ends analysis can be used to deal with trade concerns arising from instrumental measures, such as those intended to promote human health, this kind of analysis cannot simply be transposed to non-instrumental regulation, which expresses moral, spiritual or ethical beliefs. The means do not relate to the ends in the same way with such measures. One of their goals, then, is to ensure that non-instrumental regulation does not fall through the cracks of the usual approach to setting appropriate boundaries for the trade regime. If the typical means/ends analysis will not suffice, they say, it must be adjusted to deal with the special situation of non-instrumental regulation.

In response to this point, it could be argued that a means/ends analysis is not always ideal even where instrumental measures are at issue. It evaluates the effectiveness of the measure more than its true purpose or trade impact. I don’t mean to suggest that such a test is completely irrelevant for evaluating trade restrictions. Rather, I wonder whether other factors are perhaps more important and should be the focus.

Along these lines, I also wonder if there is perhaps a better solution to dealing with any controversy over non-instrumental measures. As I read the article, it seems to me that much of their focus is on refining the typical “exceptions”-type analysis (under which certain policies are explicitly “permitted” even where they violate the rules). Measures “expressing intrinsic moral or spiritual beliefs” are the focus here, but more generally they seem to accept the view that we should identify those domestic preferences or policy areas that are important, and provide explicitly for their use.

This exceptions-based approach, though, may not be the best way to deal with the problem of the intrusion of international rules into domestic policymaking. If we rely on exceptions for permitted policies, then we need them for all of the various policies that we want to make sure governments can pursue. This leads to a number of problems: identifying all of these policies, agreeing on what policies should be included, and deciding how each should be evaluated. The limited set of exceptions in GATT Article XX illustrates these problems, as the provision only lists certain policies, leading to strained efforts to fit other, non-listed policies into the designated categories. A better approach might be to focus less on what policies should be permitted through exceptions, and concentrate instead on what policies international trade rules should prohibit. For example, if the basis for the international trade regime was to limit protectionism, and the focus of the rules was on identifying protectionism, then we would not need to develop a specific “exceptions” approach for issues such as the “expression of intrinsic moral or spiritual beliefs.” Rather, inherent in the rules would be a goal of rooting out protectionist policies. If any other policy were being pursued, including the expression of intrinsic moral and spiritual beliefs, it would not violate the rules. This general solution could deal with all issues of this type (i.e., ensuring the ability of governments to pursue certain policies), rather than having to address them on an individual basis. With such an approach, many of the same elements would be considered, but the nature of the examination might make it easier to pursue legitimate (i.e., non-protectionist) policies. Arguably, existing rules such as GATT Article III and the Article III ad Note allow for such an approach (although the jurisprudence has left some uncertainty). The authors do argue that the measures at issue in the seal products dispute do not violate these or other obligations. But it is worth noting that if you have a non-discriminatory domestic regulation and there are no violations, the means-ends difficulties they point to may not play such a big role, as these have tended to be more important under various exceptions provisions.

I also see in the authors’ description of these issues the use of certain terms that I think may contribute to the problem of an overbroad scope for the trade regime. For example, on page 161, they state: “The WTO has a narrow remit: regulating international trade to ensure that there are not unnecessary or discriminatory barriers to trade.” To me, the distinction between “unnecessary” and “discriminatory” trade barriers is a crucial one. Prohibiting “discriminatory” trade barriers provides a good basis for establishing boundaries to the international trade regime. By contrast, I worry that a prohibition on “unnecessary” trade barriers is broad, vague, and runs the risk of striking down domestic measures that pursue a variety of non-protectionist policies, including expressions of intrinsic moral or spiritual beliefs at issue here. Later, on page 166, they refer to policies that are “either discriminatory or gratuitously trade restrictive” as ones that are to be avoided. As with “necessary,” I am concerned that rules prohibiting “gratuitously trade restrictive” measures go too far, at least in the absence of a clear definition of what is covered.

Of course, relying on discrimination/protectionism as the basis of the trade regime is not as simple as it may sound. There is much debate, in trade law and other areas of law, as to what constitutes discrimination. But I do think that a test can be articulated for discrimination that properly evaluates the effect and intent of the measure, in a way that preserves the ability of governments to regulate. Putting this in the authors’ terms, such an approach would “respect pluralism” and allow for the “expression of intrinsic moral and spiritual beliefs.”