New York University Public Law and Legal Theory Working Papers

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This Article examines the extent to which countries can use animal welfare concerns to justify placing restrictions on international trade, under the law of the World Trade Organization (WTO). We argue that non-instrumental moral and religious concerns should be a legitimate source of trade policy. To make this claim, we examine a current WTO dispute between the European Union (EU), Canada, and Norway. The EU has banned seal products from being sold in the EU, because of animal welfare concerns regarding how the animals are hunted and skinned. Canada and Norway have challenged this regulation at the WTO, arguing that animal welfare is not a legitimate rationale for restricting trade under the law of the WTO. First, we show that animal welfare has long been a motivation for legislation, both in Europe and elsewhere. Second, we demonstrate that the EU measure was taken because of the moral belief that animal welfare should be protected, a belief related both to avoidance of actual suffering of animals and about the appropriate human attitude toward their treatment. Third, we argue that the EU measure does not violate any WTO provisions and, even if it did, it could be justified under the General Exceptions clause (Article XX) of the General Agreement on Tariffs and Trade (the primary source of WTO law). Finally, we argue that the WTO should not deny countries the ability to regulate for moral reasons. If the WTO were to do this, it would risk imposing a secular, materialist, instrumentally rational worldview on its member states. Instead, the WTO should permit pluralism – competing notions of righteousness. – and allow countries to regulate for moral reasons. The EU’s seal products ban should be upheld by the WTO. The WTO legal framework, moreover, must be able to accommodate and accept that animal welfare measures may have at the same time both a utilitarian or instrumental aspect (improving animal welfare outcomes) as well as an expressive aspect, indicating moral opprobrium at the inhumane treatment of animals.

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