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.
We would like to thank Professors Perisin, Lester, and Feichtner for taking the time to comment on our piece. Their remarks are extremely thoughtful, and in some instances help us to clarify our claims. We have also had the benefit of their own thinking and writing on this case in preparing our article. Finally, we would like to thank YJIL for organizing this Symposium.
Response to Professor Perisin:
Professor Perisin first suggests that the aim of the EU seal products ban is to protect the fox and mink industries within the EU. This raises the issue of how one ascertains whether the aim (or motive) of a measure is protectionist for purposes of WTO law. It would be helpful to understand better the methodology on the basis of which she claims that this is the likely aim of the measure. For example, is it based on legislative history that we somehow missed? Or were there sizable campaign contributions from the mink and fox fur industries to MEPs?
We also note that there is evidence that the EU has imposed significant regulatory control on the way in which animals are treated in the EU’s own fox and mink industries. The EU has, in the past, taken legislative action to regulate hunting and trapping, such as the EU’s prohibition on the use of leghold traps. It has also subjected fox and mink farming to the general requirements for the protection of animals kept for farming purposes. The EU has demonstrated that it is willing to regulate the domestic fur industry to minimize animal cruelty.
In her second major critique, Professor Perisin argues that determining what constitutes cruelty to animals (in the moral sense) is a scientific issue. This is a ground of deep disagreement between Professor Perisin and ourselves. Our analysis of the normative basis of animal welfare is intended to show that whether a given level or kind of animal suffering crosses the cruelty threshold is ultimately a moral question, one of conscience, of “beliefs that per se cannot be scientifically proven.” Professor Perisin characterizes the concern with the welfare of seals as based on “irrational, emotional attitudes.”