Environmental Law and International Trade: Public Morality as a Tool for Advancing Animal Welfare

AuthorChad J. McGuire
Pages293-310
293
Chapter 12:
Environmental Law and
International Trade: Public
Morality as a Tool for
Advancing Animal Welfare
Chad J . McGuire
I. Overview of the European Union Seal Product Ban ............................295
II. Article XX of GATT, the Chapeau, and the Public Morality Defense ..296
III. Legitimacy of a Public Morality Defense .............................................298
IV. e Public Morality Defense From an Environmental and Animal
Welfare Perspective ..............................................................................302
V. Recommendations on Animal Welfare Development rough the
Evolution of the Public Morality Defense in International Trade .........305
Conclusion ...................................................................................................308
Environmental law exists at the international level mainly through trea-
ties, protocols, bilateral agreements, and international norms.1 Animal
welfare is the focus of some of these international environmental laws,
such as the Convention on International Trade in Endangered Species of
Wild Fauna and Flora (CITES).2 In the context of international trade, how-
ever, the protection of animals often receives secondary consideration. e
tuna-dolphin trade dispute between the United States and Mexico represents
a historical example of the evolving debate on animal welfare.3 A fundamental
question of morality underlies these disputes regarding treatment of animals
adopted by one nation that is not necessarily embraced by another nation.
1. See generally P S  J P, P  I E
L (3d ed. 2012).
2. Convention on the International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973,
27 U.S.T. 1087, 993 U.N.T.S. 243 [hereinafter CITES].
3. See Hon. R. Kenton Musgrave & Garland Stephens, e GATT-Tuna Dolphin Dispute: An Update,
33 N. R J. 957 (1993).
294 What Can Animal Law Learn From Environmental Law?
e history of environmental law shares many of the same moral under-
pinnings that today confront the legal frameworks aimed at dening and
protecting a nimal welfare. Early national adoptions of environmental pro-
tections were often seen as uni lateral attempts to dene the rights and obli-
gations of other countries.4 O ver time, however, many of these national
principles gained internationa l ac ceptance. Today, there a re both standing
and emerging international agreements on a wide range of environmental
concerns.5 ese agreements exist and continue to develop even as they
impact international trade obligations.6 e ability of these environmental
protections to lawfully impede existing trade agreements depends heavily on
both the evidence that exists to support the environmental concern, and also
the acceptance of that evidence at the international level as a legitimate basis
for protecting the environment.
At the international level, the development of environmental laws and
animal welfare laws is similar in that each uses claims of public morality as
a basis for protection of the environment or animals.7 Sometimes moral-
ity becomes the sole basis for protection. In these cases, the international
community’s general acceptance of the moral arguments provides the means
by which the protection is justied. In other cases, morality supplements
alternate justications. For example, the protection of endangered species
might initially be defended on the basis of moral arguments. However, over
time, improved understanding of biodiversity and ecosystem principles can
supplement the mora l arguments by demonstrating that species protection
is closely a ligned with humanity’s wel l-being.8 W hether standing alone or
supplemented by additional arg uments, morality has proven to be a critical
component during the nascent stages of the development of environmental
and animal law.
e international arena provides a compelling medium for analyzing the
development of new areas of legal protection supported, in whole or in part,
by moralit y claims because the international arena operates via consensu s.
For morality to inuence policy or international agreement, the underlying
moral arguments supporting a claim of protection must generally be accepted
4. See generally Ronald B. Mitchell, International Environmental Agreements: A Survey of eir Feature,
Formation, and Eects, 28 A. R. E’  R 429 (2003).
5. S  P, supra note 1.
6. Id.
7. See omas J. Schoenbaum, International Trade and Protection of the Environment: e Continuing
Search for Reconciliation, 91 A. J. I’ L. 268 (1997). See also Christoph T. Feddersen, Focusing on
Substantive Law in International Economic Relations: e Public Morals of GATT’s Article XX(a) and
“Conventional” Rules of Interpretation, 7 M. J. G T 75 (1998).
8. See generally M E A, E  H W-B: H
S, 11-37 (2005), available at http://www.who.int/globalchange/ecosystems/ecosys.pdf.

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