Animal Welfare and the Wto: The Legality and Implications of Live Export Restrictions under International Trade Law

Abstract

In Australia, controversial incidents regarding the treatment of live animals exported from Australia spark regular debate on whether the live export trade should be banned or more tightly regulated. Government responses to public outcry often take the form of restrictions on the trade of the animals concerned, but the legality of unilateral measures of this kind is yet to be directly considered by the World Trade Organization's Appellate Body. This article examines the legality of imposing restrictions on live export under the international trade law regime set up by the General Agreement on Tariffs and Trade 1994 (‘GATT’),¹ and in particular, whether such measures could be justified under Article XX. In exploring this question, special attention is given to the Australian government's new regulatory framework, as introduced by the Export Control (Animals) Amendment Order 2012 (No 1), which imposes an exporter supply chain assurance obligation on Australian suppliers. In addition, in light of the continued calls from animal welfare groups to ban the trade entirely, the legality of a complete moratorium on live exports will also be considered. Although the exceptions in Articles XX(b) and XX(g) of the GATT appear to be relevant to live exports, ultimately any regulation might be best supported under the ‘public morals’ exception in Article XX(a). However, care will need to be taken in the design of any restriction to avoid breaching the strict chapeau requirements of Article XX.