Morality Play at the WTO

by Roger Alford

“[N]othing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures … necessary to protect public morals.” Article XX(a), GATT 1994

The long-awaited WTO panel decision on the EU’s ban of seal products is now available. The case raises one of the most interesting unanswered questions regarding WTO jurisprudence: to what extent may Member States impose trade restrictions based on moral or ethical concerns? Can a Member State impose a trade ban because the manner in which a product is produced violates the State’s own subjective understanding of public morals? The answer from the WTO panel is a resounding yes.

The case arose out of the EU’s concern for animal welfare. Seal hunting often involves the inhumane killing of seals resulting in needless suffering. The EU banned the importation of seal products, but exempted hunting by Inuit communities (IC hunts) and in furtherance of marine resource management where seals threatened fishing stocks (MRM hunts). Canada and Norway objected to the ban on seal products, and filed a case before the WTO. A WTO panel issued their report last week.

The case required the WTO to assess whether public morals can justify the ban on seal products. Under WTO jurisprudence, the standard for what constitutes “public morals” is exceedingly easy to satisfy. As stated in US–Gambling, “public morals” are “standards of right and wrong conduct maintained by or on behalf of a community or a nation.” The content of public morals “can vary in time and space, depending upon a range of factors, including prevailing social, cultural, ethical and religious values.” (See para. 7.380). In essence, the WTO panel must assess whether there is public concern about a particular issue and whether that concern is animated by that particular Member State’s public morals. (See para. 7.383).

In EU–Seal Products, the WTO panel examined the text of the regulation and the legislative history as evidence that there was public moral concern about the issue. Ethical concerns expressed in the text of a regulation combined with legislative debate about the morality of the issue appeared to be sufficient for the panel. (The panel dismissed public surveys as inconclusive). On finding that there was a EU concern, the panel held that the:

EU seal regime’s objective is to address the moral concerns of the EU public with regard to the welfare of seals, including the incidence of inhumane killing of seals and EU participation as consumers in and exposure to economic activity which sustains the market for seal products derived from inhumane hunts. EU public concerns on seal welfare appear to be related to seal hunts in general and not to any particular type of seal hunts. In other words, all inhumane seal hunts are of concern, not just commercial hunts. (See para. 7.410).

The key holding was that seal welfare is a matter of EU public morals that justifies the ban on seal products. (See para. 7.505; 7.631). As for the exceptions, the WTO panel rejected the EU’s exemptions for IC hunts, finding that Inuit hunts in Greenland were large-scale commercial operations that were similar to the Canadian and Norwegian commercial hunts covered by the rule. In addition, the exception for MRM hunts was rejected because the EU did not apply the exception in an even-handed way as compared to Canadian and Norwegian hunts. (See 7.650).

Several points are worthy of emphasis. First, the WTO has embraced moral pluralism. This includes what Rob Howse and Joanna Langille describe in this YJIL article as “noninstrumental moral beliefs” grounded in philosophical or religious beliefs. Islamic countries may ban alcohol, Hindu countries may ban bovine meat, and Israel may ban non-kosher meat. Not because there is anything inherently harmful about those products, but simply because they violate the public ethic of that community. As Howse and Langille put it, “public morals” may be justified either as “instrumental regulation designed to counter certain social ills, or as expressive regulation designed to express or give force to intrinsic moral intuitions or shared values.” The fact that there is not universal concern for seal welfare, or that Canada and Norway do not share EU’s concerns, is irrelevant for WTO purposes.

Second, the public moral concerns may derive from conduct that is wholly extraterritorial to the Member State. Under this reasoning, a Member State should be free to impose a ban on products that destroy the rainforest in the Amazon, harm child laborers at rubber plantations in Africa, or advance blatant government corruption in Asia. Personally, that makes sense to me in light of the prison labor exception (Art. XX(e)) included in the original GATT 1948 to address extraterritorial evils such as products manufactured in concentration camps and gulags. But it is nonetheless a controversial proposition.

Third, satisfying a WTO panel that a matter is of ethical concern requires little more than the sponsor of the legislation making sure to include appropriate language in the preamble of the draft regulation and raising moral concerns on the floor of the legislature. The test is easily met in the hands of a skillful legislator. The indeterminacy of establishing a genuine moral or ethical public concern regarding a particular practice is fraught with uncertainty.

Fourth, determining whether a restriction is “necessary” to protect public morals requires the WTO panel to determine the efficacy of a means in pursuit of an intangible goal. How does one determine whether a trade ban is necessary to further moral objections to inhumane hunting? The WTO panel indicated that as long as the trade restriction materially contributed to the objective of reducing demand and avoiding exposure, it satisfied the “necessity” requirement. (7.636-7637).

Fifth, the public morals exception may become the new battleground for WTO litigation. Rather than consistently ignoring this exception and rushing to litigate Article XX(b) (protection of human, animal, or plant health or life) or Article XX(g) (protection of exhaustible natural resources), the new litigation strategy may be to identify how a trade restriction advances ethical concerns of the Member State. In the future, we may see IP piracy restrictions justified as a reflection of public concern about the morality of stealing, a carbon tax implemented out of moral concerns for the ethics of sustainable development, and restrictions on any number of Chinese products justified out of concern that Chinese workers are subjected to a mandatory one-child-per-family policy implemented through forced abortions. After EU–Seal Products the public morals argument is open for creative interpretation.

To be clear, I support a liberal reliance on public ethics to justify legitimate trade restrictions. But the difficulty is how to cabin the morality exception to avoid abuse. EU–Seal Products is now before the WTO Appellate Body for review and clarification.

http://opiniojuris.org/2013/12/05/morality-play-wto/

4 Responses

  1. Hi Roger,
    Those are all good points relating to the role of morality.  I just wanted to add something about the nature of the “trade bans” that may be under consideration.
    I see two very different kinds of trade bans, with different implications for possible violation and justification.
    First, you may have a pure import ban, which inherently discriminates against foreign products.
    Second, you may have a general product ban, which stops all international trade, but only in the context of shutting down all sales of a product.
    The EU seal products measure was closer to the latter, although it was not a total ban because of certain exceptions.
    The key point here is that, generally speaking, import bans would be much harder to justify on moral grounds than overall product bans would be.  There is still some uncertainty as to how the legal analysis should be done, and it may vary depending on the provision, but at some point you would look at the design, structure, even-handedness, etc. of the measure.  In that context, product bans will often be allowed, whereas import bans are less likely to be. 

  2. But quid the banning of the international slave trade (seeing slaves a goods in that apocryphal vision of the time and the central aspect of international trade as part of the triangular trade) in the early 1800’s and the importing of slaves by the US in 1808 under this theory – while the internal market for slaves was protected.  Under a Lord Wilberforce vision the international slave trade ban was the only thing that could get wide acceptance and maybe leaving a “degree of appreciation” for each country at that time that evolved (with our Civil War for the US) to a domestic ban also was the best that could be reasonably done within the context of sovereignty.
    Best,
    Ben

  3. I wonder if we’ll see any revisiting of the product/process distinction. It seems like a country could follow the example of the EU and ban a product for moral reasons, making exceptions for situations where the moral impetus was not felt to apply–for example, when a particular process or device was used that eliminates or limits the moral harm.

  4. Excellent!  A few further thoughts:

    You are right to suggest that Art XX(a) will become a new battleground for WTO litigation – just as Art XX (b) gained increased relevance some 20 years ago in the context of growing environmental concerns. By comparison, the scope for ArtXX(a) exceptions are almost limitless.
    Art XX(a) is a relic of a bygone era.  In 1947, when it first appeared in the GATT, there were only 23 signatories. Almost of these were like-minded Allied countries of WW2, and their colonial territories. Why it was included, I don’t know, but it would have been a very innocuous provision at the time.  Time marches on and we now have some 159 signatories of widely differing interests and priorities. We have seen a phenomenal rise in scope and power of special interest groups within civil society, and the development of ubiquitous global communications facilities. If we were now writing the WTO agreements from scratch, it is highly unlikely that a provision would be included that allowed trade restrictions “necessary to protect public morals”. But neither could it conceivably be removed anymore without a politically crippling outcry from civil society.
    Given where we are, it will be crucial for the trade law community to think long an hard about how this genie – now out of its bottle – can be sensibly controlled. To that end, a few initial thoughts:
    People, not governments, have moral values. It seems paternalistic and condescending to suggest that people need to be protected in this way. If the moral values are widely held, a trade ban is unnecessary as no one will buy the products. People are quite capable of defending their own moral values. Truly held moral value do not need protection by government – although they may sometimes need protection from government.
    Leaving aside my libertarian moral philosophy, there is a surely world of difference between a measure that merely “contributes to a certain extent to the objective of addressing moral concerns” – as found in the EU Seal case – and a measure that is “necessary to protect public morals”. At the very least there is a range of moral issues, some deeply and profoundly held, others less so, and moral concerns can conflict with one another and change over time.  Moreover, this complex of ever-changing moral concerns will vary from individual to individual – very few can make any claim to be universal. So, whose moral concerns is government purporting to help protect?  A vocal, media-savvy minority? What about other moral concerns that may be undermined by the government action. To allow for trade bans on the basis of some vague contribution to a similarly vague moral concern, is sloppy jurisprudence and risks undermining the whole WTO project.

     

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