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Permitting Pluralism: The Seal Products Dispute and Why the WTO Should Accept Trade Restrictions Justified by Noninstrumental Moral Values

Written by  Robert Howse & Joanna Langille

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To what extent does the legal framework of the World Trade Organization (WTO) permit trade restrictions that, at least in part, express the moral beliefs of particular societies and have a root in noninstrumental morality?

This Article will consider this question using the current Seal Products dispute as an example. The Seal Products dispute between the European Union, Canada, and Norway will be the first occasion on which the WTO dispute settlement organs are required to consider noninstrumental rationales (expressions of intrinsic moral or spiritual beliefs) as a distinct basis for trade-restrictive measures.  While the WTO dispute settlement system is no stranger to cases regarding the treatment of animals,  the policies at issue in earlier cases related to objectives—such as conservation of exhaustible natural resources—that are anchored in environmental science and international policy, or that are related instrumentally to the protection of human life and health or economic interests.  The EU seal products ban is in part aimed instrumentally at improving animal health and welfare, but it is also based on a level of protection for the animals in question that is grounded in the community’s ethical beliefs about the nature of cruelty and the unacceptability of consumption behavior that is complicit with that cruelty.

We will argue that the WTO legal framework allows countries to adopt trade restrictive measures based on anti-cruelty concerns, both to protect the animals and to express moral censure of those practices. Under WTO law, there is ample policy space for countries to express beliefs concerning the treatment of animals through nondiscriminatory trade measures. Further, and more generally, we deploy our analysis of animal welfare in the Seal Products dispute in order to espouse a conception of pluralism that recognizes the importance of expressive, noninstrumental rationales for state decisionmaking, even if those rationales differ or are understood and articulated differently in different societies and cultures. If noninstrumental considerations were impermissible grounds for trade restrictive action, countries would not be able to restrict trade for many sincerely held philosophical or religious reasons.  For example, Israel would not be able to prohibit the importation of nonkosher foods,  and a state with a large Hindu majority would not be able to prohibit imports of bovine meat.  Adopting this position would constitute considerable overreach on the part of the WTO.