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A Comment on the Public Morals Exception in International Trade and the EC – Seal Products Case: Moral Imperialism and Other Concerns

Elizabeth Whitsitt

Keywords: Trade law; environmental law; public morals exception

Public morality concerns are ripe for consideration in international trade disputes. The long-awaited WTO decisions in EC – Seal Products afforded the world's leading international trade arbiter the opportunity to consider, among other things, application of the public morals exception in GATT and the TBT Agreement to the EU's 2009 ban on the importation and marketing of seal products. While the EU's seal products ban was ultimately held to be discriminatory and thus did not meet the requirements of GATT Article XX's chapeau, the reasoning enunciated by the Appellate Body (and WTO Panel) would have allowed the ban as being justified under the right to protect public morals. That same reasoning, however, lacked a measured analysis weighing the competing moral considerations about animal (seal) welfare against protecting the traditional and cultural practices (seal hunting) of impacted indigenous communities with short shrift being paid to the indigenous community interests. In result, the WTO's most recent rulings on public morals effectively legitimizes the moral imperialism inherent in the EU's seal products ban.

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