Moral determinations in international law: lessons from the seals dispute

This was the first webinar of the International Economic Law and Policy Working Group (IELPWG) of Birmingham Law School. The event took place on Monday 18 October 2021.

• Speaker: Dr Ben Czapnik (Chinese University of Hong Kong
• Discussant: Professor Lorand Bartels (University of Cambridge)
• Chair: Dr Luca Rubini (Birmingham Law School)

While GATT Article XX(a) permits WTO Members to implement trade-restrictive measures for moral purposes, it also permits dispute tribunals to review the consistency of those measures with WTO law. In the moral disputes to date, WTO tribunals have managed a delicate balancing act by pragmatically addressing the parties' concerns while avoiding perceptions that they are second-guessing the moral choices of sovereign Members. However, this pragmatic approach has left some critical questions unanswered:

• What does the concept of "public morals" entail?  
• What analytical methods are available to establish the existence of public morals?
• Are non-rationalist measures covered by the moral exception? 

In this session, Dr Czapnik argues that WTO law has failed to clearly resolve these issues and that the WTO's public morals jurisprudence is ambiguous and equivocal. These issues came to the fore in the Seals dispute where there are competing academic views about the EU's underlying policy objective: was the seal products ban a rationalist animal welfare measure inspired by welfarist philosophy or did the EU offer special protection to seals because of their "cuteness" and the "moral feelings" they invoke among EU citizens? "