Sealing Animal Welfare into the GATT Exceptions:
The International Dimension of Animal Welfare in
WTO Disputes
Katie Sykes
1.
Introduction
Canada’s WTO challenge1 to the EU ban on seal products2 engages important
questions about the relationship between international trade obligations and the protection
of animal welfare. The outcome of this dispute could turn on whether animal welfare
concerns are found to be a valid basis for an exception under Article XX of GATT.3 In
determining the answer to that question, a key consideration is the status of animal
welfare as an emerging principle of international law and policy – that is, not solely a
domestic matter.
The international dimension of animal welfare is a significant aspect of the Seals
Dispute, but it has been overlooked, or indeed explicitly denied, in most scholarly
discussions to date. Peter L. Fitzgerald, for example, asserts that ‘animal welfare
measures are primarily the province of domestic law and typically reflect local values and
1
European Communities – Certain Measures Prohibiting the Importation and Marketing of Seal Products,
WTO Doc WT/DS/400/4 (14 February 2011). A panel was established to examine Canada’s complaint on
25 March 2011. Norway had also requested the establishment of a panel in relation to the same action by
the EU (WTO Doc WT/DS/401/5). On 21 April 2011, it was determined that the same panel would deal
with both matters. The dispute is referred to herein as the ‘Seals Dispute.’
2
Commission Regulation 1007/2009, OJ 2009 L 286/36. An implementing regulation was published in
2010: Commission Regulation 737/2010, OJ 2010 L 216/1. These measures are collectively referred to as
the ‘Seals Ban.’
3
General Agreement on Tariffs and Trade, 30 October 1947, 55 UNTS 194, entered into force 1 January
1948.
2
customs rather than a broad international consensus’4 and that the Seals Dispute ‘poses
the question of whether “local” moral, ethical or popular positions can trump agreed
efforts at economic globalization reflected in various treaty instruments.’5
Fitzgerald’s way of framing the issue – a local value preference for animal
welfare measures versus a global commitment to the trade regime – is followed by many
other commentators.6 It is surprising that there has been so little attention so far to the
role that international legal principles concerning animal welfare play in this dispute, and
would also play in other trade cases involving animal welfare standards; there are
potential future disputes looming, for example, in connection with the comparatively
stringent set of EU laws protecting animal welfare.7 In order to do full justice to the
4
P. L. Fitzgerald, ‘“Morality” May Not Be Enough to Justify the EU Seal Products Ban: Animal Welfare
Meets International Trade Law’ 14 Journal of International Wildlife Law & Policy. (2011) 85, at 96.
5
Fitzgerald, ibid., at 86.
6
See (in addition to Fitzgerald, ibid) L. Nielsen, The WTO, Animals and PPMs (2007), at 7, contending
that animal welfare rules ‘are not per se considered part of jus gentium’ because ‘animal welfare primarily
is regulated domestically with domestically defined norms.’ R. Howse and J. Langille, in ‘Permitting
Pluralism: The Seal Products Dispute and Why the WTO Should Permit Trade Restrictions Justified by
Non-Instrumental Moral Values’ (December 7, 2011), Yale Journal of International Law, forthcoming;
NYU School of Law, Public Law Research Paper No. 11-82. Available at SSRN:
http://ssrn.com/abstract=1969567 characterize the central issue in this dispute as pluralism among local
values (including different views on moral matters such as animal welfare) versus a totalizing ‘secular,
materialist, instrumentally rational worldview’ embodied in the WTO rules; persuasive although this
analysis is, it underplays the place of animal welfare as the subject of an emerging, although still contested,
international consensus. S. Lester, ‘The WTO Seal Products Dispute: A Preview of the Key Legal Issues’
14:2 American Society of International Law Insights (2010), online:
http://www.asiLaworg/files/insight100113pdf.pdf, does discuss the role of international law on animal
welfare and actually argues that it might be invoked against, rather than in support of, the EU ban, based on
a kind of inclusio unius est exlusio alterius argument: ‘the complainants may emphasize the role of
international agreements in the protection of animal welfare. In the absence of such agreements on seal
hunting, the claimants may argue that unilateral trade action is not permitted.’ This analysis is
questionable, though; Lester does not mention what international agreements on the protection of animal
welfare he might have in mind, and in fact seals are one species concerning whose welfare there is some
provision in international conventional law, as discussed in Part 4 below.
7
For general discussions of the intersection of animal welfare and international trade law see, e.g., S.
Harrop and D. Bowles. ‘Wildlife Management, The Multilateral Trade Regime, Morals and the Welfare of
Animals’ 1 Journal of International Wildlife Law & Policy. (1998) 64, at 71; P. Stevenson, ‘The World
Trade Organisation Rules: A Legal Analysis of Their Adverse Impact on Animal Welfare’ 8 Animal Law
(2002) 107; and K. Cook and D. Bowles, ‘Growing Pains: The Developing Relationship of Animal Welfare
Standards and the World Trade Rules’ 19 Review of European Community & International Environmental
Law (2010) 227 (the latter article also addresses the Seals Dispute in some detail). More specifically
(outside of the current Seals Dispute), scholars have examined the ‘trade and…’ animal welfare issue in
3
interplay of different international norms that such controversies engage, it is important
to recognize and give due weight to the international dimension of animal welfare.
In this Article I discuss the status of animal welfare in international law and the
role that international principles concerning animal welfare potentially play, both in the
Seals Dispute and in other conflicts between trade rules and animal welfare measures.
Part 2 sets out background information on the Seals Ban and its explicit grounding in
animal welfare concerns. Part 3 looks at how WTO law interacts with non-trade
international law, especially in an era when domestic law-making is increasingly
connected to proliferating international commitments. Part 4 is a brief overview of the
status of animal welfare in international law. Part 5 examines how international
principles concerning animal welfare would factor into the balancing exercise under
Article XX of GATT in determining whether the Seals Ban is justifiable under WTO law.
2.
The EU Seals Ban
In 2009, the EU banned the marketing, trading and importation of all products of
commercial seal hunting (subject to some limited exceptions).8 The ban came into force
in 2010. European public opinion generally has been strongly opposed to commercial
seal hunting since the Canadian seal hunt became the subject of media and activist
relation to the European Community’s 1991 ban on fur and other products obtained by use of inhumane
leg-hold traps (P. V. Michaud, ‘Caught in a Trap: The European Union Leghold Trap Debate’ 6 Minnesota
Journal of Global Trade (1997) 355; A. Nollkaemper, ‘The Legality of Moral Crusades Disguised in
Trade Laws: An Analysis of the EC “Ban” on Furs from Animals Taken by Leghold Traps’ 8 Journal of
Environmental Law (1996) 237); the 1998 US ban on imports of cat and dog fur (G. Miller, ‘Exporting
Morality with Trade Restrictions: The Wrong Path to Animal Rights’ 34 Brooklyn Journal of International
Law (2009) 999); EU law mandating higher welfare standards for chickens (E. M. Thomas, ‘Playing
Chicken at the WTO: Defending an Animal Welfare-Based Trade Restriction Under GATT’s Moral
Exception’ 34 Boston College Environmental Affairs Law Review (2007) 605; P. A. Vesilind, ‘Continental
Drift: Agricultural Trade & the Widening Gap Between EU and US Animal Welfare Laws’ 24 Vermont
Journal Environmental Law (2011) 223); and more humane farming standards adopted in some US states
pursuant to ballot initiatives (Lesley Peterson, ‘Talking ’Bout a Humane Revolution: New Standards for
Farming Practices and How They Could Change International Trade As We Know It’ 36 Brooklyn Journal
of International Law (2010) 265).
8
Seals Ban, supra note 2.
4
attention starting in the 1960s.9 In 1983, responding to this widespread sentiment, the
EEC banned products from ‘whitecoats’ and ‘bluebacks’ – young harp and hooded seals,
respectively, that have not yet been weaned.10 The ban was extended in 198511 and
again, this time indefinitely, in 1989.12 Like the new Seals Ban, it was a very popular
measure; it has been described as the only EC Directive to be universally supported by
the European public.13
The EU has now decided to go further and ban all products of commercial sealing
without regard to the age of the seals. This decision was based on both scientific findings
and on a philosophical position about the nature of animals and of human obligations to
them. The Commission requested the Animal Health and Animal Welfare Panel of the
European Food Safety Authority (EFSA) to prepare a scientific opinion on sealing in
Canada and other countries where it takes place.14 The EFSA Report does not expressly
take a position on the ethics of seal hunting (as this was not in its remit),15 but it surveys
and assesses the evidence on hunting methods and their welfare implications. Among
EFSA’s general conclusions are that seals ‘are sentient mammals that can experience
pain, distress, fear and other forms of suffering’16 and that there is ‘strong evidence’ that
9
A vivid account of how the Canadian harp seal hunt came to international attention and then turned into
an international controversy is in F. Mowat, Sea of Slaughter (1997) (1984), at 392-427
10
Council Directive 83/129, OJ 1983 L 91/30 (‘1983 Directive’).
11
Council Directive 85/444, OJ 1985 L 259/70.
12
Council Directive 89/370, OJ 1989 L 163/037.
13
D. McGillivray, ‘Seal Conservation Legislation in the UK – Past, Present, Future’ 10 International
Journal of Marine & Coastal Law (1998) 19, at 48.
14
Animal Welfare Aspects of the Killing and Skinning of Seals, The EFSA Journal 610 (2007), online:
http://www.efsa.europa.eu/en/efsajournal/doc/610.pdf (‘EFSA Report’).
15
Ibid., at 3.
16
Ibid., at 94.
5
there are occurrences where killing is not ‘effective’ (quick and humane), but the degree
to which this happens is difficult to assess from existing data.17
The new Regulation picks up EFSA’s declaration that seals are ‘sentient beings’
who experience physical and psychological suffering.18 The ban is explicitly based on
moral concern about animal welfare:
[H]unting of seals has led to expressions of serious concerns by members
of the public and governments sensitive to animal welfare considerations
due to the pain, distress, fear and other forms of suffering which the
killing and skinning of seals, as they are most frequently performed, cause
to those animals.19
This is by contrast to the 1983 Directive, which was based on a mix of welfare
and conservation concerns and indeed had something of a slant, at least on the surface,
towards the conservation issue. The Preamble of the 1983 Directive refers to pressure on
seal populations and expresses a desire for ‘further investigation into the scientific
aspects and consequences of the culling of pups of harp and hooded seals’20; in context,
this seems to mean the effect on survival of seal populations rather than the welfare
consequences to the individual animal that are foregrounded in the current Seals Ban.
This change reflects the evolution in the status of animal welfare as a matter of policy
concern from the 1980s to today. The welfare of animals is now expressly enshrined in
the EU’s constitutive treaty as a basis for European policy-making.21
17
Ibid.
Seals Ban, supra note 2, Preamble para. 1.
19
Ibid, Preamble para. 4.
20
1983 Directive, supra note 10 (Preamble).
21
In 1997, the EU member states signed the Treaty of Amsterdam, including the Amsterdam Protocol on
Protection and Welfare of Animals, which requires the Community and member states to pay full regard to
the welfare requirements of animals in implementing policy, and thus provides a legal basis for the EU to
18
6
This development in European law has taken place in a context of growing
attention to animal welfare in public international law. The Seals Ban reflects not just
local European values but also evolving international standards regarding the treatment of
animals. Like many trade quarrels, the Seals Dispute engages not just a tension between
domestic policy and international obligations, but also the complex interrelationship of
trade and non-trade values at the international level.
3.
The Relationship Between WTO Law and General International Law
This section examines how the broader context of public international law affects
the interpretation of the WTO Agreements, with a focus on the Appellate Body’s own
jurisprudence acknowledging the place of WTO law within this wider corpus of
international law. Notwithstanding the view of some scholars that the WTO is a ‘closed’
or ‘self-contained’ regime of pure economic law,22 these days it is very hard not to
acknowledge that ‘there are few truly “self-contained regimes” in international law, no
clear lines separating economic concerns from those of national security, no clean
boundaries between institutions of international governance or btween those
organizations and domestic law making mechanisms.’ 23
A. The New Protectionism
The conflict between Europe and Canada over seal hunting does not fit
comfortably into Fitzgerald’s description of a contest between local values and customs
legislate in relation to ethical concerns about animal welfare. Treaty of Amsterdam Amending the Treaty on
European Union, the Treaties Establishing the European Communities and Certain Related Acts –
Protocol Annexed to the Treaty of the European Community – Protocol on Protection and Welfare of
Animals, OJ 1997 C 340.
22
A. Lindroos and M. Mehling, ‘Dispelling the Chimera of “Self-Contained Regimes”: International Law
and the WTO’ 16 European Journal of International Law (2005) 857, at 862-863.
23
J. Alvarez, ‘The New Treaty-Makers’ 25 Boston College International & Comparative Law Review
(2002) 213, at 213-214.
7
on the side of the ban and the forces of globalization on the pro-sealing side.24 In fact it
could be said that the Seals Dispute turns Fitzgerald’s dichotomy on its head. Former
Canadian fisheries minister John Crosbie25 has described the controversy over seal
hunting as a manifestation of ‘the conflict between the cultures of modern urban society
and traditional rural communities – a conflict that is going to become increasingly
important as world industrialisation and urbanisation continue their unrelenting course.’26
Crosbie’s description could be the mirror image of Fitzgerald’s.
Indeed, it is often the case that domestic measures affecting trade are not purely
based in parochial concerns. Such measures are often connected to international efforts
to address matters that individual nation states cannot deal with effectively in isolation.
There is an ever-increasing supply of issues that fit that description, and the international
norms and principles to which individual nation-states feel obliged to pay attention in
making internal policy have accordingly proliferated. Alvarez, describing this feature of
globalization, speaks of ‘the increased internationalization of domestic law making and
judicial processes, and the domestication of international rules and processes.’27
WTO jurisprudence increasingly has to address conflicts between the trade rules
and domestic measures that themselves reflect internationally recognized principles, not
just local interests. Two observations are important in this type of analysis: first, the
straighforward dichotomy of ‘local values – protectionism’ versus ‘globalization – free
trade’ can be misleading; and second, such conflicts throw the relationship between WTO
law and the broader corpus of international law into the foreground.
24
See discussion accompanying notes 4 and 5, supra.
Crosbie was also a robust supporter of the free trade and the WTO during his career in elected politics.
26
Hon. J. Crosbie, ‘Introduction,’ in D. Barry, Icy Battleground: Canada, the International Fund for
Animal Welfare, and the Seal Hunt (2004) ix, at ix.
27
Supra note 23 at 215.
25
8
B. Harmonizing WTO Law and General International Law
WTO law is part of, and integrated with, the larger system of public international
law. This conclusion is supported both by the text of the WTO Agreements and by the
practice of dispute settlement in the WTO.
Article 3(2) of the WTO Dispute Settlement Understanding (DSU)28 provides that
the WTO’s dispute settlement mechanism ‘serves to preserve the rights and obligations of
Members under the covered agreements, and to clarify the existing provisions of those
agreements in accordance with customary rules of interpretation of public international
law.’ Through this textual door, starting in US – Gasoline,29 the Appellate Body has
imported certain rules of treaty interpretation set out in the Vienna Convention on the
Law of Treaties,30 including Article 31.31 Although not all WTO members have ratified
the Vienna Convention, these principles should govern WTO treaty interpretation because
they have ‘attained the status of a rule of customary or general international law.’32
The Appellate Body construed the reference to ‘customary rules of interpretation
of public international law’ in the DSU to mean that WTO law is ‘not to be read in
clinical isolation from public international law.’33 Claus-Dieter Ehlermann (a former
member of the Appellate Body) has noted that ‘[t]he significance of this statement can
hardly be overestimated. It is of course the starting point and general justification for
28
Understanding on Rules and Procedures Governing the Settlement of Disputes, Marrakesh Agreement
Establishing the World Trade Organization, Annex 2, The Legal Texts: The Results of the Uruguay Round
Of Multilateral Trade Negotiations (1994), 1869 UNTS 401, 33 ILM 1226 (1994).
29
United States – Standards for Reformulated and Conventional Gasoline (Complaint by Venezuela)
(1996), WTO Doc. WT/DS2/AB/R (Appellate Body Report) (‘US-Gasoline’) at 16-17.
30
(1969) 1155 UNTS 331 (‘Vienna Convention’).
31
In US-Gasoline, the Appellate Body referred to Article 31(1) of the Vienna Convention in particular.
Subsequently, in Japan – Taxes on Alcoholic Beverages (Complaint by the European Communities) (1996),
WTO Doc WT/DS8, 10, 11/AB/R (Appellate Body Report) at 10, it recognized the pertinence of Article 31
‘as a whole.’
32
Ibid. at 17.
33
Ibid.
9
frequent references to public international law rules and principles in many Appellate
Body reports adopted since US-Gasoline.’34
Joost Pauwelyn has argued that the rationale for applying principles of public
international law to trade disputes goes further than these textual and doctrinal
foundations, and can be traced to a more profound issue that goes the institutional
legitimacy of the WTO. Understanding trade law as part of the broader framework of
public international law prevents ‘the creation of sub-systems completely delinked from
international law rules agreed upon elsewhere’ and ‘is crucial to avoiding the situation
where a particular regime of international law, say, the WTO, becomes a safe haven …
for states to escape obligations entered into elsewhere.’35
One of the most important roles of non-trade public international law in trade
disputes is as an interpretive aide, a gap-filler and expander of concepts in the interstices
of the WTO Agreements that can provide answers in the many places where the text
leaves questions open. Here, the treaty interpretation principle crystallized in Article
31(3)(c) of the Vienna Convention is of great significance as a bridge between WTO law
and the rest of public international law. This Article sets forth the principle that ‘any
relevant rules of international law applicable in the relations between the parties’ shall be
taken into account in treaty interpretation. It was invoked by the Appellate Body in the
Shrimp-Turtle case to justify the reliance on ‘additional interpretative guidance, as
appropriate, from the general principles of international law.’36
34
C.-D. Ehlermann, ‘Six Years on the Bench of the ‘World Trade Court’: Some personal Experiences as a
Member of the Appellate Body of the World Trade Organization’ 36 Journal of World Trade (2002) 605, at
617.
35
J. Pauwelyn, Conflict of Norms in International Law: How WTO Law Relates to Other Rules of
International Law (2003), at 38.
36
United States – Import Prohibition of Certain Shrimp and Shrimp Products, complaints by India et al
(1998), WTO Doc. DS/58/AB/R (Appellate Body Report), para. 158.
10
Philippe Sands notes that Article 31(3)(c) ‘has a potentially generic application’
and ‘seems to be the only tool available under international law to construct a general
international law by reconciling norms arising in treaty and custom across different
subject matter areas.’37 In the WTO context, it is an important conduit though which the
wider world of public international law can be brought to bear in the analysis of trade
disputes.38 Sands proposes that in WTO adjudication there should be a presumption that
rules of customary international law should be given effect unless their application would
undermine the object and purpose of the WTO system, with the party opposing the
interpretation that would permit application of the customary rule to bear the burden of
showing why it should not apply.39
I would argue that Sands’s proposed presumption, with appropriate modifications,
applies not only to custom but also to principles of general international law – and even,
going a step further, of developing norms that are in the process of emerging, but have
not yet solidified, as binding norms. In the case of weaker international principles or
those that are still in the process of being constructed, the presumption itself should be
weaker and more easily rebutted, and might be reduced to no more than a mode of
interpretation that looks favourably on internationally derived principles, rather than an
outright shifting of the burden of persuasion. But something like the type of preferential
37
P. Sands, ‘Treaty, Custom and the Cross-Fertilization of International Law’ 1 Yale Human Rights &
Development Law Journal (1999) 85, at 87.
38
Article 32 of the Vienna Convention, supra note 30, provides another potential means of contextual
interpretation and integration of the WTO Agreements with other branches of international law. In the USShrimp case, the Appellate Body invoked Article 32 and looked to the negotiating history to elucidate the
meaning of the chapeau of Article XX (ibid., para. 157 n. 152). It has not yet gone further and used
supplementary means other than those directly related to the negotiation and drafting of the text, although
this clearly is contemplated by Article 32 in appropriate circumstances.
39
Sands, supra note 37, at 104.
11
and sympathetic approach Sands proposes is appropriate for emergent international
norms and values.
4.
Animal Welfare in International Law
Not very long ago, the characterization of animal welfare as a matter of local,
domestic policy, not a subject of international law, would have been unobjectionable.
Over the last few decades, however, there has been a marked escalation of attention to
this matter at the international level. Michael Bowman et al, in the recently issued
second edition of Lyster’s International Wildlife Law, devote an entire chapter to the
international law of wildlife and welfare, and posit that there is a new general principle of
international law concerning animal welfare. 40 They point to a ‘wealth of recent formal
expressions of commitment’ to animal welfare in international treaties and other
instruments,41 some examples of which are discussed below. While these instruments are
not necessarily directly applicable in the context of the Seals Dispute, they are examples
of an evolving development towards recognizing animal welfare and cruelty to animals as
matters significant in themselves, separate from issues of conservation and resource
management.
A. International Animals
International law responds to practical governance problems that individual states
cannot address alone. As Bruce Wagman and Matthew Liebman observe, ‘[j]ust as
international problems require international solutions, so too do “international
animals.”’42 International agreements deal, for example, with animals that migrate across
40
M. Bowman, P. Davies and C. Redgwell, Lyster’s International Wildlife Law, 2d ed (2010), at 678-682.
Ibid., at 680.
42
B. A. Wagman & M. Liebman, A Worldview of Animal Law (Durham, NC: Carolina Academic Press,
2011), at 24.
41
12
borders or inhabit areas outside the jurisdiction of single nations (the high seas, the
Antarctic).43 The focus of such agreements may be on allocating or regulating
entitlements to exploit those animals as resources or on the conservation of species, but
sometimes they also manifest a concern with the welfare of individual animals.
One example where welfare has developed from a peripheral to a central concern
is the 1946 International Convention for the Regulation of Whaling,44 and the
International Whaling Commission (IWC) established thereunder. International
regulation of whaling had its roots in the exploitation of whales as a resource. The
original purpose of the ICRW was to promote ‘the orderly development of the whaling
industry.’45 But the IWC has increasingly focused on reducing cruelty, starting with
regulations in the 1970s on harpoon design (banning the use of cold-grenade harpoons,
which result in a longer time to death and often acute suffering). 46 The IWC has had an
advisory Working Group on Whale Killing Methods and Associated Welfare Issues since
1982. 47 In 1986, the IWC’s moratorium on the commercial hunting of large cetaceans
came into force, and it has been extended (albeit subject to exceptions) to this day. The
decision to call a halt to commercial hunting was motivated as much by concerns about
cruelty and morality as about conservation; the moratorium covers species whether or not
their populations are threatened.48
Perhaps the most important international convention that addresses animal
welfare is the 1973 Convention on International Trade in Endangered Species of Wild
43
Ibid.
2 December 1946, 161 UNTS 72 (‘ICRW’)
45
Seventh recital of the preamble to the ICRW.
46
Bowman et al., supra note 40, at 684.
47
Ibid.
48
Anthony D’Amato and Sudhir K Chopra, ‘Whales: Their Emerging Right to Life’ 85 American Journal
of International Law (1991) 21, at 45.
44
13
Fauna and Flora.49 CITES has been very widely adopted – it has 175 parties – a fact
which tends to support the view that its provisions (including the importance it accords to
animal welfare) reflect a worldwide consensus. 50 CITES is primarily a conservation
treaty, but Michael Bowman has highlighted the importance of the animal welfare
dimension in the convention.51 It is ‘replete with provisions relating to the welfare of
individual living specimens,’52 including requirements that export permits can only be
granted if the responsible authorities are satisfied that the specimen will be ‘so prepared
and shipped as to minimize the risk of injury, damage to health or cruel treatment’53 and
provision for confiscated illegally shipped animals to be sent to a rescue center where
their welfare will be looked after.54 These commitments to the welfare of individual
animals manifest a concern that is distinct from, although related to, the conservation
goals of CITES. CITES does not directly apply to the Seals Dispute, of course; harp and
hooded seals are not listed under CITES, and the animals are not being transported live.
But the broader principle of concern for animal welfare manifested in CITES is evidence
of commitment to this principle by the international community, which is relevant to
sorting out the international norms at issue in the Seals Dispute.
49
3 March 1973, 993 UNTS 243 (‘CITES’).
Convention on International Trade in Endangered Species of Wild Fauna and Flora, ‘What is CITES?’
online: http://www.cites.org/eng/disc/what.shtml.
51
M. Bowman, ‘Conflict or Compatibility? The Trade, Conservation and Animal Welfare Dimensions of
CITES’ 1 Journal of International Wildlife Law & Policy (1998) 9.
52
Ibid., at 10.
53
Articles 3(2)(c) (export of Appendix I species); 3(4)(b) (re-export of Appendix I species); 4(2)(c) (export
of Appendix II species); 4(5)(b) (re-export of Appendix II species); 4(6)(b) (introduction from the sea of
Appendix II species); and 5(2)(b) (export of Appendix III species). In addition, while Article 7 of CITES
provides for discretionary waivers from the normal documentation requirements for certain specimens
being transported as part of a zoo, circus, menagerie, plant exhibition or traveling exhibition, such a waiver
can only be granted if the relevant authority ‘is satisfied that any living specimen will be so transported and
cared for as to minimize the risk of injury, damage to health or cruel treatment’ (Article 7(7)(c)).
54
Articles 8(4)(b) and 8(5).
50
14
Marine mammals, including seals, have been treated in international law as
something of a special category with a heightened a moral claim to be protected from
unnecessary cruelty. As far back as 1958, the UN Conference on the Law of the Sea
unanimously adopted a resolution requesting states ‘to prescribe, by all means available
to them, those methods for the capture and killing of marine life, especially of whales and
seals, which will spare them suffering to the greatest extent possible.’55 The 1972
Convention for the Conservation of Antarctic Seals56 includes, in an Annex, a
commitment to develop rules ‘with a view to ensuring that the killing or capturing of
seals is quick, painless and efficient.’57
The special attention given to the welfare of marine mammals in international law
may be connected to a number of factors. Marine mammals are ‘international animals’ in
Wagman and Liebman’s sense, so domestic welfare law may not be adequate to protect
them. Because they are large animals often living in environments that are unusually
challenging for humans, hunting and killing them engages special concerns: it is
inherently difficult to kill them in a quick and humane manner, and also difficult to
monitor and control hunters’ activities.58
55
Resolution 5, on the Humane Killing of Marine Life, 1958 UN Conference on the Law of the Sea,
Official Records 144, Doc. A/CONF.13/L56, Vol II, Annexes at 109, cited in Bowman et al., supra note 40
at 679.
56
1 June 1972, 1080 UNTS 175.
57
Annex Article 7(a).
58
Whales are especially difficult to kill without cruelty, simply because they are so large. Bowman et al
question whether it is realistically possible to kill them ‘in an acceptable, humane fashion.’ Supra note 40,
at 685.
15
B. A Shared Moral Concern
More recently, there is evidence that the humane treatment of animals is a matter
of common moral concern to the world community, whether or not the activities at issue
traverse or are outside of national boundaries. The draft Universal Declaration on
Animal Welfare (UDAW)59 is an initiative of the World Society for the Protection of
Animals, which proposes that the UN General Assembly should adopt the declaration as
a resolution, as it did the Universal Declaration on Human Rights. The text of the draft is
not finalized, but among the basic principles it expresses are recognition that animals are
sentient beings whose welfare should be respected; that the welfare of animals should be
a common objective for states; that there should be improved measures for animal
welfare both nationally and internationally; that animals should be cared for and treated
in a humane and sustainable manner; and that appropriate policies should be developed
for specific situations such as farming and experimentation. The UDAW ‘is premised on
the idea that all animals, even those who reside solely within national borders, are entitled
to basic welfare protections.’60 It thus ‘models international human rights principles,
which make human rights an international issue, even if the objectionable conduct, such
as torture or religious persecution, occurs entirely within national borders.’61
In a similar vein, the 1991 revision of the World Conservation Strategy
commissioned by the UN, Caring for the Earth, identifies the protection of animals from
cruelty as a common moral concern and an aspect of sustainable living: ‘People should
59
The provisional draft text of the proposed UDAW as of 2011 is available at
http://s3.amazonaws.com/media.animalsmatter.org/files/resource_files/original/Latest%20draft%20UDAW
%20Text%20-%202011.pdf?1314177486.
60
Wagman and Liebman, supra note 42, at 25.
61
Ibid.
16
treat all creatures decently, and protect them from cruelty, avoidable suffering, and
unnecessary killing.’62
C. A General Principle of International Law
Bowman et al. argue that the ‘pervasiveness of concern for animal welfare’
expressed in both domestic and international legal instruments indicates ‘a convergence
upon a general principle of law’ concerning animal welfare.63
General principles of international law (as distinct from principles borrowed from
domestic law, which are usually well established in domestic legal systems) have been
described as an ‘unperfected’ versions of stronger international legal obligations,
especially custom.64 The establishment of customary international law requires both a
general practice of states and recognition of its legal character; by contrast, general
principles require recognition, but not practice.65 An international custom that is ‘not
evidenced by sufficient or consistent practice’ to qualify as customary international law
may be a general principle of international law.66
Joost Pauwelyn observes that general principles of law are ‘demonimated
“principles” instead of “rules” with reason,’ because they tend to be ‘broad and opentextured;’ at the same time, general principles are unquestionably part of international
law and legally binding, just as other international rules are.67
62
IUCN/UNEP/WWF, Caring for the Earth: A Strategy for Sustainable Living (1991), at 14.
Supra note 40, at 680.
64
M. C. Bassiouni, ‘A Functional Approach to “General Principles of International Law”’ 11 Michigan
Journal of International Law (1990) 768, at 768.
65
Bin Cheng, General Principles of International Law as Applied by International Courts and Tribunals
(1987) (1953), at 24.
66
Bassiouni, supra note 64, at 768.
67
Supra note 35, at 128-129.
63
17
A powerful articulation of the important role general principles play international
law is found in the separate opinion of Judge Weeramantry of the ICJ in the 1997
Gabcikovo-Nagymaros dam case.68 Judge Weeramantry describes general principles as
flowing from ‘those pristine and universal values which command international
recognition.’69 Such values represent common ground among the world’s great diversity
of legal traditions, including unwritten and traditional legal systems.70
Bowman et al. argue that there are ‘ample grounds for recognizing concern for
animal welfare both as a principle widely reflected in national legal systems and as a
universal value, in the broader sense indicated by Judge Weeramantry.’71 They propose
that international statements of commitment to animal welfare evidence ‘convergence
upon a general principle of law’ with both procedural and substantive content. Animal
welfare has substantive legal significance as a ‘meta-principle’ brought to bear in treaty
interpretation, including in the WTO context: ‘the protection of animal welfare might
have to be considered as an aspect of general public policy or morality, potentially
justifying restrictions on treaty-based guarantees protecting free trade or human rights,
for example.’72
5.
The Article XX Balancing Exercise: What Role Does an International Animal
Welfare Principle Play?
The remainder of this Article focuses on how a general principle of international
law regarding animal welfare would affect the determination of whether a measure like
the Seals Ban is justified under Article XX of GATT. For the sake of argument, I have
68
Case Concerning the Gabcikovo-Nagymaros Project (Hungary v Slovakia), ICJ Reports (1997) 7.
Ibid., at 109.
70
Ibid.
71
Supra note 40 at 678.
72
Ibid., at 681.
69
18
assumed here that the Seals Ban constitutes a prima facie violation of one or more
provisions of the WTO Agreements, without meaning to imply that this is necessarily the
correct conclusion. The Article XX analysis is important because, either in this case or in
a future one, the WTO is likely to be called upon to address the question of whether an
animal welfare measure is permissible under the exceptions it sets forth.
The Article XX analysis is also where the recognition of relevant principles of
international law supporting an impugned domestic measure is especially important. In
assessing the a measure’s validity under Article XX, the WTO carries out the critical
exercise of weighing the different policy considerations at play. In this balancing
exercise, the fact that a measure being challenged expresses international, as well as
local, norms is an important consideration that could tip the balance in favour of the
measure in question. Furthermore, the text of Article XX is full of open-ended, valueladen language susceptible to a range of interpretations, which might be more or less
generous towards the impugned measure. Taking into account relevant aspects of the
broader international legal context in interpreting this language may make all the
difference.
There are several specific points in the analysis of the Seals Dispute under Article
XX where the international status of animal welfare is relevant. The first and most
obvious is the moral exception under Article XX(a), which is the textual descendant of
older trade provisions that made space for animal welfare concerns as well as other
morality-based policy. The second is the reference to animal health in Article XX(b),
where the evolutionary aspect of interpretation – understanding how cognate terms in
general international law have changed over time – is particularly important. A third key
19
textual provision is the reference in the Marrakesh Agreement73 to sustainable
development, which, while not part of Article XX (or of GATT), expresses an important
aspect of the purpose of the whole WTO system, in turn shaping the interpretation of
Article XX. Finally, the balancing or limitation language internal to Article XX itself –
the test of ‘necessity’ in Articles XX(a) and XX(b), and the Article XX chapeau – are
likely to be critical to the outcome of the Seals Dispute or any trade dispute involving
animal welfare, and it is here that interpretating the text with an eye to the status of
animal welfare in general international law may be of the greatest importance.
A. The Moral Exception: Article XX(a)
The most obvious textual foothold for animal welfare measures in Article XX is
the public morals exception in Article XX(a). To locate animal welfare in this exception
does not even require evolutionary interpretation. Steve Charnovitz has demonstrated
that humanitarian concerns and safeguards for the wellbeing of animals in international
transit were among the matters contemplated by drafters who included ‘public morals’
exceptions in GATT, following on from predecessor provisions in earlier trade
agreements.74 Charnovitz cites treaty provisions relating to the welfare of animals being
imported and exported dating back to the 1930s.75 In other words, animal welfare has
been recognized as a justification for exceptions to trade disciplines for a long time, and
trade law is probably one of the first sources of conventional international law to address
73
Marrakesh Agreement Establishing the World Trade Organization, 15 April 1994, The Legal Texts: The
Results of the Uruguay Round of Multilateral Trade Negotiations (1994), 1867 UNTS 154, 33 ILM 1144
(1994).
74
S. Charnovitz, ‘The Moral Exception in Trade Policy’ 38 Virginia Journal of International Law (1998)
689, at 705-716.
75
Ibid., at 712 (referring to the 1935 International Convention concerning the Transit of Animals, 20
February 1935, 193 LNTS 39, Article 5, which requires exporting countries to take steps to ensure that
animals in transit are properly loaded, suitably fed and receive all necessary attention ‘in order to avoid
unnecessary suffering’).
20
animal welfare concerns. Considering this textual history, it should be uncontroversial
that animal welfare is at least included in the ambit of ‘public morals’ under Article
XX(a). Interpreting Article XX(a) in an evolutionary manner would also mean
recognizing the developing significance of animal welfare as part of international law.
Today the international understanding of animal welfare means taking animal sentience
more seriously than in the past, thinking of animal welfare as a globally shared moral
concern, and aiming to minimize cruelty and avoid the unnecessary infliction of harm.
B. Animal Health: Article XX(b)
Another potential textual location for animal welfare concerns is the Article
XX(b) exception for measures ‘necessary to protect human, animal or plant life or
health.’ Here, the changing meaning of the term ‘animal health’ considered in the light
of international law and policy is especially relevant.
At the time that Article XX(b) was originally drafted, ‘animal health’ almost
certainly referred to diseases that threatened human health and economic wellbeing. It is
highly unlikely that the drafters had in mind an ‘animal-centric’ view of animal health as
worthy of protection because it matters to the animals, or as encompassing general animal
wellbeing including the reduction of suffering.
Two decades before the GATT was finalized, the World Organisation for Animal
Health (Office International des Epizooties, or OIE) was created76 to address the need for
international cooperation in controlling outbreaks of disease in livestock, to minimize
economic losses and the danger that infections would jump to humans. The original
mandate of the OIE is congruent with what the drafters of the GATT would have
76
The constitutive instrument is the 1924 International Agreement for the Creation at Paris of an
International Office for Epizootics (25 January 1924), 57 LNTS 135.
21
understood by the term ‘animal health’ in Article XX(b). The OIE is also recognized as a
source of expertise in the WTO system; it is named in the SPS Agreement as the ‘relevant
international organization’ for animal health.77
Today, the mandate of the OIE is significantly different from what it was in 1924,
and emphatically does include animal welfare issues. The OIE’s Terrestrial Animal
Health Code includes Guiding Principles on Animal Welfare,78 which recognize that
human use of animals ‘carries with it an ethical responsibility to ensure the welfare of
such animals to the greatest extent practicable.’79 OIE Director-General Bernard Vallat
has said that ‘the OIE must also conduct a new mission that has not yet been undertaken
at worldwide level, namely to convince all the decision-makers in its member countries
of the need to take into account the human–animal relationship in favour of a greater
respect for animals.’80
In evolving practice of the OIE, the meaning of ‘animal health’ has shifted over
time. A term that originally referred exclusively to the interests of human beings in
being protected from the risks of zoonotic disease has expanded it to incorporate respect
for animals, ethical duties towards animals, and animal welfare. Where the identical term
is used in Article XX(b), ‘animal health’ in the GATT should be construed consistently
with what it in the practice of the OIE (the WTO reference organization for animal
health) today.
77
Article 12(3), Annex A Article 3(a).
OIE, Terrestrial Animal Health Code, online:
http://www.oie.int/index.php?id=169&L=0&htmfile=chapitre_1.7.1.htm Article 7.1.2.
79
Article 7.1.2(6).
80
‘Foreword,’ in Proceedings of the Global Conference on Animal Welfare: An OIE Initiative (Paris, 23-25
February 2004), online:
http://www.oie.int/fileadmin/Home/eng/Conferences_Events/docs/pdf/proceedings.pdf.
78
22
C. Sustainable Development: Preamble to the Marrakesh Agreement
The Marrakesh Agreement Establishing the World Trade Organization establishes
the framework of the modern international trade regime. It also expresses some of the
basic principles that the system is supposed to promote. The preamble enshrines
sustainable development as one of the ultimate objectives of the trade regime,
recognizing the importance of ‘allowing for the optimal use of the world’s resources in
accordance with the objective of sustainable development.’81
For Fitzgerald, this reference to sustainable development is a textual basis for
supporting national measures for environmental protection.82 By contrast, he says, ‘there
is no obvious language [in the treaties] that would invite a broadening interpretation of
the WTO Agreements to encompass animal welfare interests.’83 But arguably the
concept of sustainable development itself includes recognition of the inherent moral
standing of other sentient creatures. It has been suggested that the changes in vision that
will be needed in order to achieve a genuinely sustainable way of living necessarily
include acknowledgment of our relationship with animals as beings with intrinsic moral
significance, rather than mere things.84 The reference in the UN World Conservation
Strategy Caring for the Earth to the protection of animals from cruelty, avoidable
suffering and unnecessary killing supports the proposition that humane treatment of
animals is an aspect of sustainability.85 This is an example of how an evolutionary
interpretive approach that pays attention to the changing understanding of open-textured
concepts like ‘sustainable development’ would indeed reach an understanding of the
81
Supra note 73.
Supra note 4, at 112.
83
Ibid.
84
K. Rawles, ‘Sustainable Development and Animal Welfare: The Neglected Dimension’ in in J. Turner
and J. D’Silva (eds), Animals, Ethics and Trade: The Challenge of Animal Sentience (2006) 208.
85
Supra note 62.
82
23
WTO Agreements that encompasses animal welfare interests. If animal welfare is
viewed as an aspect of sustainable development, a fundamental value of the trade system,
then there is a basis for interpreting specific provisions of the WTO Agreements in a way
that leaves policy-making space for animal welfare measures.
D. Balancing: Necessity, Arbitrariness, Unjustifiability
Both Article XX(a) and Article XX(b) require that national measures be
‘necessary’ to achieve the specified ends. The Article XX chapeau imposes the proviso
that even if a measure falls within one of the enumerated exceptions it cannot be ‘a means
of arbitrary or unjustifiable discrimination where the same conditions prevail, or a
disguised restriction on international trade.’
The Appellate Body has said that determning whether a measure is “necessary”
involves balancing various factors, ‘particularly the importance of the interests or values
at stake, the extent of the contribution made by the measure to the relevant objective, and
the measure’s trade restrictiveness.’86 One important factor is whether the measure under
consideration is consonant with objectives embraces by general international law.
Because WTO law is to be interpreted in harmony with non-trade international law, not
in isolation from it, the ‘interests or values at stake’ should be adjudged more important
(other things being equal) if they form part of international law and policy than if they do
not.
Indeed, Charnovitz argues that giving a privileged place to international
objectives should be at the heart of our understanding of the moral exception, as this
86
Ibid., para. 241.
24
approach would go a long way toward resolving the potential problem of trade measures
being used to export morality or impose one country’s moral predilections on another:
The best solution would be to internationalize Article XX(a)…Thus, the
moral exception could validate trade actions based on international norms
while rejecting trade actions based on nationalistic aims. This solution
would recognize the symmetry in our pursuit of both global commerce and
global values. It would be a bold statement that the WTO is not
predicated on morally-blind trade.87
The Article XX chapeau is a somewhat mysterious provision on its face. The text
presents adjudicators with the conundrum of determining what the difference is between
just a restriction on trade (which any measure that must be justified under Article XX is
by definition) and a ‘disguised’ restriction on trade, which categorically cannot be
justified under Article XX for any reason. As a practical matter, this interpretive exercise
too involves a form of proportionality analysis, a test of whether the challenged measure
goes further than it needs to or is not appropriately targeted to achieve its legitimate
objectives.88
Here, there is an important role for Sands’ proposition that rules of general
international law should be given effect unless that would defeat the object and purpose
of the WTO system – or, as I would restate and expand the proposition, a domestic
measure that is based on international obligations or even on emerging international
mores is entitled to an appropriately calibrated degree of deference. 89 That calibration
would depend, here, on whether the adjudicator concludes that animal welfare is already
87
Supra note 74, at 742-743.
Fitzgerald, supra note 4, at 124.
89
See text surrounding note 39, supra.
88
25
an established general principle of international law concerning animal welfare, as
Bowman et al. argue, or it is still in the process of emerging, and also on the extent to
which the measure in question is congruent with the international legal norm.
6.
Conclusion
Commentators who describe animal welfare as a purely domestic or local matter
have missed a marked development in international law over the last few decades. There
may already exist a general principle of international law concerning animal welfare.
Alternatively, the increasing presence of animal welfare concerns in international
documents and practice may amount only to a new principle, a policy direction, that falls
short of a binding rule of positive law. In either case, the animal welfare principle is still
in a relatively early stage of evolution, and its precise nature and implications are still in
the process of being worked out.
The chances are good that the WTO will be the first international adjudicator to
have the opportunity to address those implications. The Appellate Body has declared its
commitment to interpreting the trade rules in harmony with general international law, and
to evolutionary interpretation of the WTO Agreements. Giving the emerging
international principles protecting animal welfare due weight in the Article XX balancing
process will contribute to the further growth of a WTO jurisprudence integrated with,
rather than at odds with, general international law.
Such an approach would not, of course, lead to finding that every domestic
measure based on animal welfare is permissible under the WTO Agreements. Other
things being equal, it would increase the likelihood of such a finding. In the case of the
Seals Ban, which appears to be based on a genuine and strong moral motivation to
26
prevent suffering of animals that have something of a special status in international law,
it should tip the balance in favour of upholding the measure to an appreciable degree.