Morality may not be enough: Animal welfare meets International Trade Law

Under European Union regulations that were promulgated with overwhelming popular support, seal products may neither be placed on the European market internally nor imported into the EU. As seal hunting occurs primarily outside the EU, three seal product exporting states, Canada, Norway, and Iceland, complained to the World Trade Organization that the EU’s actions were contrary to its commitments to free trade under international trade agreements. Many animal advocates hope that this will be the first WTO case to establish that the General Exception found in Article XX(a) of the General Agreement for Tariffs and Trade (GATT) – for measures that are “necessary to protect public morals” – can be used to justify animal welfare laws and regulations that otherwise adversely affect trade. Unfortunately, this hope is misplaced. While GATT Article XX(a) might well support some animal welfare measures, the current challenge to the EU seal products ban is not be the case to establish such a precedent for the public morals exception.

The EU seal products import ban poses the question of whether “local” moral, ethical, or popular positions can trump agreed efforts at economic globalization reflected in various treaty instruments. Beyond implicating whether animals should be regarded as “sentient” themselves or simply as products to be used and traded, the seal products import ban touches upon fundamental issues such as the role of legal positivism and relativism, the basic preference for multilateral rather than unilateral action on the international stage, and the tension between the principle of pacta sunt servanda and national sovereignty. On the one hand, if international trade agreements prevail over measures such as the seal products ban, that might well undermine deeply held popular beliefs and national autonomy. On the other hand, if these sorts of local measures prevail over international trade commitments, that may in turn subvert the international application of the rule of law and raises the prospect of trade disputes, sanctions, or retaliation by other states. Thus, the discussion of the applicability of Article XX(a) to the EU seal products import ban implicates much more than animal welfare or rights, and this may not be the best case to address these larger issues.

However, that is not to suggest that animal welfare measures can never be justified under Article XX(a) in appropriate circumstances, or that the WTO Agreements are necessarily incompatible with efforts to promote animal welfare. Rather, as seen in the various environmental cases already decided by the GATT/WTO, it requires ensuring that whatever animal welfare measure is at issue is taken and applied with due regard for the obligations embodied in the WTO Agreements.  A modified version of the seal products ban, however, might well benefit from the Article XX(a) exception for measures that are “necessary to protect public morals”. Moreover, even if this is not the case to establish such a precedent, there are other potential disputes that may be better suited to establishing that the WTO’s trade rules, animal welfare, and morality, can coexist.

The author of the article is Peter L. Fitzgerald, MacCormick Fellow University of Edinburgh School of Law (Spring 2011); Visiting Fellow University of Cambridge Lauterpacht Centre for International Law (Fall 2010); Professor of  Law, Stetson University  College of Law.

The full article is due to be published in the forthcoming edition of the Journal of International Wildlife Law and Policy: [14  J. of Int’l Wildlife Law & Policy ___ (2011)]