[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.
