Seals, public morality and public opinion

We are all familiar with the EU Seal case at the WTO. One of the main pivots around which the case revolves at the dispute settlement proceeding is the applicability of Article XX GATT which deals with General Exceptions. More specifically it is the "public morals" clause which does not prevent States from adopting or enforcing any measures "necessary to protect public morals". I have blogged about it earlier here, here and here.

Came across this report of a survey conducted in Europe on what Europeans think about the seal trade ban using the public morals clause. The study titled "European Opinion on Animal Use and Trade" came to one of these conclusions:

• 75% of respondents saw the use of animals as acceptable, so long it is done in a way that protects animal welfare and sustainability of the resource   

• Half of respondents (50%) agreed that a country or group of countries should not be able to ban a commercial product from being imported based on moral grounds unless the evidence used is fact-based and agreed upon by a credible independent third-party organization.  

 • A majority of respondents (57%) agreed that if the EU’s ban on the import and sale of seal products is allowed to stand it could set a dangerous precedent for other animal products or natural resources   

• A majority of respondents felt that seal hunting was acceptable under in some circumstances compared with a third (33%) who felt that no form of seal hunting is acceptable.  

 • There was less division when it come to opinions about wild boar hunting: 82% of respondents supported wild boar hunting in some capacity while 14% were completely opposed. 

Of course, people will challenge the timing and veracity of this data study. But interesting to evaluate how such "evidences" of public opinion can influence the debate on what is "public morality". 

Also was quite interesting to note the significant difference between attitude towards seals vs a vis wild boars.

Public Morality as an exception - More shades of grey

Roger Alford has this brilliant piece in Opinio Juris on the scope and limitations of the "public morals" exception in Article XX(a) of the GATT contextualising it in the aftermath of the Seals dispute case. He rightly observes:

"Fifth, the public morals exception may become the new battleground for WTO litigation. Rather than consistently ignoring this exception and rushing to litigate Article XX(b) (protection of human, animal, or plant health or life) or Article XX(g) (protection of exhaustible natural resources), the new litigation strategy may be to identify how a trade restriction advances ethical concerns of the Member State. In the future, we may see IP piracy restrictions justified as a reflection of public concern about the morality of stealing, a carbon tax implemented out of moral concerns for the ethics of sustainable development, and restrictions on any number of Chinese products justified out of concern that Chinese workers are subjected to a mandatory one-child-per-family policy implemented through forced abortions. After EU–Seal Products the public morals argument is open for creative interpretation."

While the public moral exception can serve legitimate public concerns, can it become a tool for protectionist policies? Would it be used in the coming decade to justify import restrictions, including import bans of products made "immorally" or "unethically" from national standards? Though import bans seem less likely to be justified due to the inherently discriminatory nature of the measure since the local product is not prohibited, what if it is justified due to the nature of making the foreign product that is against a country's public morality"? Is there is possibility of "subjectivity" being justified in the garb of "objective" public morality? Will trade rules benefit or be a victim of this widely worded exception?

As in many other areas in international trade law, more shades of grey here than black or white.