New York University Public Law and Legal Theory Working Papers

Document Type

Article

Comments

48 Geo Wash Int'l L Rev (2015), pp. 81-150

Abstract

This article examines the relationship between the law of the World Trade Organization (WTO) and morally motivated legislation of the WTO's Member states. Building on our 2012 article entitled Permitting Pluralism, we argue that the WTO should adopt a pluralistic approach to morally motivated legislation of its Member states. That is, WTO law should allow the greatest latitude possible for states to adopt morally motivated legislation, and should permit all types of moral and religious reasons for restricting international trade, including non-instrumental moral reasons. The WTO should not attempt to second-guess the moral and religious commitments of its Members, and it should permit morally complex legislation, involving trade-offs and multiple, possibly competing, motivations. Instead the WTO should confine its role to a thorough analysis of any discriminatory aspects of the measure to determine whether the measure is protectionist. This approach is justified by the WTO's institutional capacity and purpose, when understood in historical context. After articulating this pluralist approach, we analyze the recent EC - Seal Products dispute at the WTO, a watershed WTO case on morally motivated domestic legislation, to determine whether the WTO's adjudicatory bodies adopted an appropriate attitude to the European Union's legislation banning the importation of seal products for explicitly moral reasons, out of concern for animal welfare. We argue that the Seal Products case largely followed our pluralist approach, adapting the law of the WTO to accommodate non-instrumental moral reasons for regulating by WTO Member states. Finally, we defend the Seal Products decision against criticisms that have emerged in the scholarly literature, including those that have criticized our pluralistic approach to morally motivated legislation.

Date of Authorship for this Version

4-2015

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