To each his own: the case for unilateral determination of public morality under article XX(A) of the GATT.
ABSTRACT I INTRODUCTION II BACKGROUND TO COMPETING INTERPRETIVE THEORIES Competing Interpretive Theories and the Issue of Human Rights III BRIEF HISTORY OF ARTICLE XX(A) Drafting History Application by Member States IV JURISPRUDENCE ON THE PUBLIC MORALS EXCEPTION US-Gambling China-Audiovisual V PREVIOUS INTERPRETIVE THEORIES Originalism, Transnationalism, and Universalism Evidentiary Unilateralism Restriction-Sensitive Approaches Black Market Regulation Addition VI A DEFENCE OF EVIDENTIARY UNILATERALISM Weaknesses of the Restriction-Sensitive Approach Evidentiary Unilateralism--The Path Forward VII CONCLUSION
The equilibrium between free trade and sovereign state regulation of public morality is a delicate one, and has long been the focus of controversy. Article XX(a) of the General Agreement on Tariffs and Trade ("GATT") (1) and its equivalent provision in Article XIV(a) of the General Agreement on Trade in Services ("GATS"), (2) allow Member States to justify otherwise contravening trade restrictions on the grounds that such restrictions are necessary to protect public morals. The balance between the principle of non-discrimination under international trade law and a state's desire to regulate matters of public morality lies at the heart of the conflict. Of particular consequence is the question of how to allow states to regulate matters of moral importance while ensuring that they do not abuse this freedom by enacting disguised protectionist measures.
Although the public morals exception has been incorporated into trade law for over 50 years, it is only recently--in US-Gambling (3) and China-Audiovisual (4)--that the World Trade Organization ("WTO") has been required to interpret and apply the exception. These landmark cases have nonetheless left many questions unanswered. For example, how are adjudicators to evaluate the legitimacy of a country's claim that the regulation at issue is a matter of public morality? Additionally, who polices the substance and boundaries of public morality? Can a state unilaterally determine the scope of public morality, or does a norm have to be accepted universally as a moral issue to be considered legitimate?
This article will examine these issues in the context of the US-Gambling and China-Audiovisual decisions and in light of the current literature. This article will defend the theory of evidentiary unilateralism, first proposed by Jeremy Marwell, (5) against rival interpretations of the scope of the public morals exception. Particularly, I will argue that to ensure an acceptable level of predictability, and thus stability, in the global trading regime, states should be permitted to unilaterally define public morals; however, to prevent veiled protectionist measures, enacting states should also be required to overcome a number of evidentiary hurdles before they can rely on the public morals exception.
The article is divided into seven parts. Part II provides an overview of the competing interpretive theories concerning the public morals exception. Parts III and IV analyze the legislative history and case law surrounding the public morals exceptions in the GATT and the GATS in order to demonstrate that evidentiary unilateralism is the theory most consistent with how the public morals exception has been understood and applied in practice. Parts V and VI examine the academic debate surrounding the definition of the public morals exception in order to demonstrate that a suitably revised version of Marwell's evidentiary unilateralism theory provides the optimal balance between trade liberalization and state sovereignty, and Part VII concludes.
II BACKGROUND TO COMPETING INTERPRETIVE THEORIES
The substance of public morals and the appropriate interpretive framework in which to understand it are not self-evident. As discussed below, there is limited legislative history to draw on, and the WTO was not required to interpret the public morals exception until 2005 in US-Gambling. As a result, the academic conversation surrounding the substance and interpretation of the public morals exception has been hotly contested. (6) The scholarly discourse can generally be categorized in one of two ways: (i) advocating for public morals to encompass measures regarding a particular issue, such as human or labour rights; or (ii) aiming to construct an interpretive theory under which any trade-restrictive measure is evaluated by a standard set of objective criteria.
This paper focuses on the two primary interpretive models proposed for the public morals exception: Jeremy Marwell's evidentiary unilateralism, (7) and Mark Wu's restriction-sensitive approach. (8) This section will explore the originalism, transnationalism, and universalism theories, which both Wu and Marwell considered and rejected. It will be shown how these theories would address the issue of human rights coverage to illustrate their differences, and that it is vital for the stability of the global trade regime for an interpretive theory to be developed and applied consistently by the WTO judiciary.
COMPETING INTERPRETIVE THEORIES AND THE ISSUE OF HUMAN RIGHTS
Activists have disagreed over whether the public morals exception should be used to advance human, labour, and women's rights through trade sanctions. Liane Jarvis contends that human rights concerns for women should be addressed through Article XX(a)'s public morals exception because globalization is more harmful to women than men. (9) Michael Trebilcock, Robert Howse, and Antonia Eliason argue that
the very idea of public morality has become inseparable from the concern for human personhood, dignity and capacity reflected in fundamental rights. A conception of public morals or morality that excluded notions of fundamental rights would simply be contrary to the ordinary contemporary meaning of the concept. (10)
Tatjana Eres disagrees, asserting that the WTO is not the appropriate regime for enforcing human rights law. (11)
A retreat to originalism would constrain the possible legitimate public morals exceptions to those explicitly considered by the drafters of the GATT and the GATS. Member States would only be able to rely on the public morals exception to protect a human right if that right was understood, at the time of drafting in the 1940s, to be necessary to maintain public morality. As a result, originalism would likely render Article XX(a) an inappropriate venue for enforcing human rights. Yet as one advocate has argued, and as the exclusion of addressing many more recent human rights under Article XX(a) illustrates, a retreat to originalism would provide clear direction to the public morals exception and potentially be the most successful at ameliorating concerns that the public morals exception will be used to enact veiled protectionist measures. (12)
On a transnationalist model, a state could only rely on the public morals exception to implement a trade-restrictive measure aimed at protecting a human right if similarly situated states could also be shown to support the human right at issue. This model allows some room for the culturally sensitive nature of public morals, while grounding the public morals exception in other sources of international law, such as treaties or widely held customary practices.
Finally, to justify the restrictive measure, universalism would require states to demonstrate universal or near-universal acceptance that the human right is necessary to protect public morals. Accordingly, only human rights that have universal or near-universal acceptance, such as those enshrined in the Universal Declaration of Human Rights, (13) could form the basis of trade-restrictive measures.
This article will argue that originalism, transnationalism, and universalism are all problematic solutions that do not align with WTO jurisprudence. A well-developed interpretive theory for the public morals exception that aligns with the jurisprudence and legislative history of the WTO is imperative to maintaining a stable global trade regime. The theory of evidentiary unilateralism--where each state is able to unilaterally determine which measures, and thus human rights, are necessary to protect public morals subject to evidence of such--is most aligned with WTO jurisprudence and strikes the ever elusive balance between trade liberalization and state autonomy. Under evidentiary unilateralism, Member States are provided a clear rubric that allows for certainty when making legislative decisions regarding measures necessary to protect public morals, and the culturally and socially content-specific concepts of morality are respected. Evidentiary unilateralism also ensures that the WTO has the necessary tools to resolve conflicts in a consistent and transparent manner, encouraging Member States to comply from the outset. Parts III and IV, below, will provide the legislative and adjudicatory context of the public morals exceptions enshrined in the GATT and the GATS in order to demonstrate that evidentiary unilateralism is the theory most consistent with how the public morals exceptions have been understood and applied in practice.
III BRIEF HISTORY OF ARTICLE XX(A)
Article XX of the GATT enumerates ten matters upon which Member States may impose measures that would otherwise be illegal under trade law for violating one of the non-discrimination rights enshrined in the GATT. The range of exceptions includes measures "necessary to protect human, animal or plant life or health"; measures "relating to the products of prison labour"; measures "relating to the conservation of exhaustible natural resources"; and measures focused on stabilizing domestic economies in essential circumstances. (14) Article XX(a) of the GATT and Article XIV(a) of the GATS provide for an exception to the norms of non-discrimination in trade law based on public morality. Along with the chapeau, Article XX(a) of the GATT reads as follows:
Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures ... necessary to protect public morals. (15)
The public morals exception agreed on by the GATS negotiators contains two minor differences. (16) First, in addition to measures necessary to protect public morals, it also covers measures necessary to "maintain public order". Second, an explanatory footnote was added to clarify that the exception "may be invoked only where a genuine and sufficiently serious threat is posed to one of the fundamental interests of society". (17)
Exceptions are incorporated into the majority of trade agreements for both pragmatic and normative reasons. Participation in the international trade regime requires states to forfeit a certain level of autonomy to ensure non-discriminatory treatment for all Member States. But no state would be willing to forfeit all of its autonomy to take part in an international trade regime. To secure widespread acceptance of multilateral trade agreements such as the GATT and the GATS, it is vital to assure states that they will have the autonomy to legislate on matters that are fundamental to their constituents, and that they will be able to adequately address critical domestic situations despite non-discrimination provisions. Normatively, states value and seek to protect a diverse array of issues, especially in light of the culturally and socially content-specific values of morality and other exceptions covered by Article XX of the GATT. Indeed, as I will argue below, the most basic function of the public morals exception is to allow states to regulate issues they deem important.
There is little legislative history on the drafting of Article XX(a). (18) In the wake of World War II, post-war planners and governments began the task of creating a modern international trade regime. The creation of an International Trade Organization ("ITO") was planned as part of the 1944 Bretton Woods Agreement in order to oversee the reconstruction of the world economy in a new system of liberalized trade. The GATT was originally viewed as an interim agreement pending the implementation of the ITO Charter. (19) But the ITO never came to fruition, mainly because the US Congress strongly opposed it, fearing it "would entrench excessively on domestic sovereignty". (20) As a result, the preparatory work for the ITO is viewed as the preparatory work for the GATT. (21) The first outline for the ITO Charter, written by the US government in December 1945, included a list of exceptions, the first of which was measures "necessary to protect public morals". (22) Steve Charnovitz, in his seminal paper detailing the drafting history of the public morals exceptions, writes that there is little legislative history documenting what states understood public morals to mean at the time of drafting. (23) As Charnovitz argues, the lack of debate itself may be illuminating. (24) It suggests that the negotiators all understood the meaning of the exception, perhaps because the public morals exception--along with many of the other Article XX exceptions--was similar to exceptions commonly incorporated into commercial treaties at the time. (25)
APPLICATION BY MEMBER STATES
Despite its inclusion in every subsequent draft of the GATT, (26) the substance of the public morals exception was left unclarified by both drafters and judicial bodies for nearly sixty years (1948-2004). Nevertheless, policymakers continued to rely on the public morals exception throughout this period to justify the legality of certain measures. Marwell lays out an extensive list of accounts in which countries claimed the right to maintain morality-related trade-restrictive measures. (27) The products banned or restricted by Member States vary widely. For example, Israel has a ban on the importation of all non-kosher meat; (28) Indonesia has imposed special restrictions on the importation of all alcohol; (29) and many countries have bans on narcotics, (30) as well as pornography. (31) Other examples include the US ban of all products made by indentured child labour, (32) and the European Community ban on importing furs caught in countries that permit the use of leg-hold traps. (33) As these examples demonstrate, measures necessary to protect public morals have been interpreted and applied by Member States in a broad and diverse manner. Under the theory of evidentiary unilateralism, states maintain the freedom to legislate on matters they consider necessary to protect public morals. Along with being the most consistent with how the public morals exception has been understood in practice, evidentiary unilateralism as an interpretive framework is also best aligned with the WTO's judicial treatment of public morals, as will be seen in the following section.
IV JURISPRUDENCE ON THE PUBLIC MORALS EXCEPTION
The WTO was first required to interpret the public morals exception under Article XIV(a) of the GATS in US-Gambling in 2005. Shortly afterward, China relied on Article XX(a) of the GATT to justify a number of trade-restrictive measures challenged by the US in China-Audiovisual. This section provides a summary of the Panel and Appellate Body holdings, focusing on the tests and reasoning applied in these cases.
In March 2003, Antigua and Barbuda ("Antigua"), a small Caribbean twin-island state, brought a complaint alleging that a US ban on cross-border gambling and betting services was illegal. Specifically, Antigua challenged the implementation of the US federal Wire Act, (34) Travel Act, (35) and Illegal Gambling Business Act (36) (collectively, "the Acts"). Antigua argued that the prohibitions on cross-border gambling implemented through the Acts constituted a violation of the US' Schedule of Specific Commitments under Article XVI of the GATS--namely, the US' unqualified market-access commitment with respect to "other recreational services (except sporting)", which include gambling and betting services. (37) In response, the US argued that the Acts were not in violation of its commitments, but should they be found to be in violation, the Acts were necessary to protect "public morals" and "public order" within the meaning of Article XIV(a) of the GATS. The US argued that "remote gambling is particularly vulnerable to use by minors who are prohibited from gambling or can be used for laundering the proceeds of organized crime". (38) The US also submitted that the measures were necessary to protect compulsive gamblers. (39) Both the Panel and Appellate Body held that the US was in violation of its GATS non-discrimination commitments. They then considered whether this violation could be justified under the public order and morals exception in Article XIV(a). For a Member State to successfully justify an otherwise unlawful trade restriction under the public morals exception, it must demonstrate provisional justification, necessity, and non-discrimination.
The Provisional Justification Test
To determine the appropriate test to use in deciding whether a measure is successfully justified under the public morals exception, the Panel looked to the rulings with respect to Article XX of the GATT in US-Gasoline, (40) Shrimp/Turtle, (41) and Korea-Beef. (42) The Panel applied the test developed in these cases, holding that to justify a measure found to be inconsistent with one (or several) of the substantive obligations of the GATS under Article XIV, the measure must be subjected to a two-tier analysis. Specifically, the measure must
1. fall within the scope of one of the recognized exceptions set out in paragraphs (a) to (e) of Article XIV in order to enjoy provisional justification; and
2. meet the requirements of the introductory provisions of Article XIV, the so-called "chapeau". (43)
As the US was relying on Article XIV(a), the Panel began by defining public morals as "standards of right and wrong conduct maintained by or on behalf of a community or nation". (44) Additionally, the Panel held that "public morals" should be interpreted based on a dynamic, flexible approach:
We are well aware that there may be sensitivities associated with the interpretation of the terms "public morals" and "public order" in the context of Article XIV. In the Panel's view, the content of these concepts for Members can vary in time and space, depending upon a range of factors, including prevailing social, cultural, ethical and religious values. (45)
This language was left intact by the Appellate Body. A dynamic interpretation of the public morals exception was also consistent with the Appellate Body decision in Shrimp/Turtle regarding the interpretation of Article XX(g) of the GATT, which covers measures relating to the conservation of exhaustible natural resources. (46) In Shrimp/Turtle the Appellate Body wrote that Article XX(g) "must be read by a treaty interpreter in the light of contemporary concerns of the community of nations". (47) It is important to note that the Panel in US-Gambling considered gambling to be within the originally intended scope of public morals. (48) The fact that the Panel nonetheless took such a strong stance on the need for dynamic interpretation of the public morals exception is indicative of the adjudicators' firm intention to provide clear direction for future cases.
The Necessity Test
Along with two other general exceptions, the public morals exception can only be applied if the measure is deemed "necessary". (49) To determine the necessity of the measure, the Panel adopted the tripartite framework laid out in Korea-Beef and EC-Asbestos. (50) The test as stated in US-Gambling requires adjudicators to weigh and balance several factors:
1. the importance of interests or values that the challenged measure is intended to protect;
2. the extent to which the challenged measure contributes to the realization of the end pursued by that measure; and
3. the trade impact of the challenged measure. (51)
The Appellate Body in Korea-Beef wrote, in relation to the third prong, that if the measure has a relatively slight trade impact it was more likely to be "necessary", and that adjudicators must take into consideration reasonably available WTO-consistent alternative measures when applying this requirement. (52) The Panel in US-Gambling sided with Antigua, finding that the US had not been able to provisionally justify the Acts as "necessary to protect public morals and/or public order within the meaning of Article XIV(a)". (53) The Panel emphasized that the US "failed to pursue in good faith a course of action that could have been used by it to explore the possibility of finding a reasonably available WTO-consistent alternative". (54)
On appeal, the Appellate Body overturned the Panel's finding that the Acts were not necessary. The Appellate Body ruled that the Panel had erred in its application of the necessity test. The Appellate Body clarified that consultation is not a pre-condition to the application of the necessity doctrine and that the burden falls on the challenging party, not the defending party, to identify alternatives. (55) Only once the challenging party has proven a reasonable alternative exists does the burden of proof shift to the defendant to prove that the alternative would not fulfil its stated public morality goals. The Panel therefore did not have sufficient grounds to declare that the Acts failed the necessity test.
The Non-discrimination Test
In addition to proving necessity, any defence brought under Article XX or Article XIV must also meet the requirements of the chapeau. In particular, a state must establish that the measure has not been implemented in a way that would "constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail". (56) A long line of cases have addressed the substance of non-discrimination. (57) In Shrimp/Turtle the Appellate Body clarified that the chapeau restricts not only overtly discriminatory measures, but also those that are facially non-discriminatory but that create discriminatory effects, regardless of the restricting state's intent. (58)
The Appellate Body upheld, though only in part, the Panel's finding that the Acts were de facto discriminatory, thereby violating Article XIV's chapeau and invalidating the US' defence. (59) The Panel's decision was based on two instances that allegedly revealed that the Acts discriminated between foreign and domestic service suppliers. The Appellate Body rejected the Panel's finding that the Acts themselves were discriminatory, but upheld the finding that the ambiguity relating to the scope of application to the Acts of the Interstate Horse Racing Act ("IHA") (60) resulted in discriminatory application. (61) Under the IHA, off-track betting systems in the US could accept an "interstate off-track wager", defined in [section] 3002 of the IHA as a legal wager "placed or transmitted by an individual in one State via telephone or other electronic media and accepted by an off-track betting system in the same or another State". Antigua argued that the IHA was facially discriminatory as it authorized domestic, but not foreign, suppliers to offer remote betting services in relation to certain horse races. The Panel agreed with Antigua, holding that, in the light of the existence of the IHA, the US had not demonstrated that the Acts are applied consistently with the requirements of the chapeau. The Appellate Body upheld this conclusion, finding that the US had not established that the measures in question satisfied the requirements of the chapeau, thereby invalidating their defence under Article XIV(a). In other words, the Acts, and their relationship with the IHA, could not be justified under Article XIV in their current form. If the US was able to remove the discrepancies between domestic and foreign suppliers under the IHA, the restrictions would be allowed to stand. Antigua was permitted to impose retaliatory trade measures of $20 million per year, allowing Antigua to suspend its TRIPS commitments to the US. (62)
In China-Audiovisual, China sought to justify its requirement that all importers of foreign publications and audiovisual products channel their products through state-run companies, which censored goods deemed to be offensive to Chinese public morals. It is important to note that the US challenged specifically China's import restrictions, distribution restrictions, and the failure to afford national treatment to imported materials, and not China's censorship practices as such. (63) The US alleged that China's refusal "to permit any foreign enterprises or foreign individuals to import the [products at issue], and likewise only allow[ing] a subset of enterprises in China--[namely,] wholly state-owned Chinese enterprises approved or designated by the Chinese Government--to import the [products at issue]",64 was a violation of their commitments under the Accession Protocol and Working Party Report.
China countered that the measures were not in violation of their commitments, but should they be, the measures were justifiable under Article XX(a) because they were necessary for the protection of public morals, were applied in a reasonable manner, and were in full compliance with the requirements of Article XX's chapeau. (65) In its second written submission, the US discounted China's public morals defence, arguing that China's restriction that only wholly-owned government subsidiaries be granted censorship capabilities was not necessary to protect Chinese public morals under Article XX(a). (66) The US contended that China had numerous "reasonably available WTO-consistent alternatives". (67) For example, the US proposed that foreign-invested companies could conduct the censorship reviews after developing the expertise to do so, either by training existing staff or hiring experts as employees. (68) Further, China failed to show that the measures were consistent with the chapeau of Article XX. The US argued that the process for selecting which entities are allowed to conduct the censorship reviews produced results that were "both arbitrarily and unjustifiably discriminatory and a disguised restriction on trade". (69)
China responded that the strict regulations were necessary to maintain the desired high level of protection. China also rejected the US' alternative, arguing that foreign entities would not be able to fully comprehend or appropriately apply the concept of Chinese morals. The required censorship was also costly, and China felt that the cost could only be imposed on wholly-owned state enterprises. Finally, as foreign companies are not subject to Chinese law, these enterprises could not be properly held liable for any failures to restrict materials offensive to China's public morals. (70) The Panel found that the provisions limiting import rights to wholly state-owned enterprises for reading materials, audiovisual home entertainment products, sound recordings, and films for theatrical release were inconsistent with China's obligations to the WTO. (71) The Panel then moved on to consider Article XX(a).
Provisional Justification and Necessity
The Panel applied the same two-tiered analysis to China's defence as laid out in US-Gambling. Specifically, for a defence to succeed, it must fall within one of the exceptions listed in Article XX and satisfy the requirements of the chapeau. To qualify for recourse under Article XX(a), the Panel reiterated that the restriction must be designed to protect public morals and necessary to protect the implicated morals. The Panel found that as Article XX(a) of the GATT uses the same concepts as Article XIV(a) of the GATS, there was no reason to depart from the interpretation of "public morals" developed by the Panel in US-Gambling. The Panel specifically accepted the definition and dynamic interpretation of public morals used in US-Gambling. (72)
The Panel also used the necessity test laid out in US-Gambling and Korea-Beef as formulated in Brazil-Tyres. (73) The Panel found that China either (i) had not made a prima facie case that the measures were necessary, or (ii) had not demonstrated that the US' proposal to allow foreign enterprises to conduct the content review was not a genuine alternative or not reasonably available to China. (74) As a result, China's restrictive import measures were not justified under Article XX(a). The Panel therefore did not consider whether the measure satisfied the requirements of the chapeau. (75)
The Appellate Body upheld the Panel's conclusion that China had not demonstrated that the measures were "necessary" to protect public morals, and as a result, had failed to justify the measures under the public morals exception. (76) As China failed to clear the necessity hurdle of Article XX(a), the Appellate Body also did not consider whether the measures satisfied the requirements of Article XX's chapeau.
V PREVIOUS INTERPRETIVE THEORIES
While the US-Gambling and China-Audiovisual cases were ground breaking--being the first time that the WTO was required to rule on the public morals exceptions under the GATS and the GATT, respectively--many of the questions that scholars previously struggled with still linger. Perhaps the most important residual question is who has the authority to define public morality? Further, what distinguishes "public morals" from morals simply held by a group of people? How many people, and which people, have to consider an issue to be one of public morality for it to qualify under Article XX(a)? To address these questions, this section considers the strengths and weaknesses of a number of previously proposed interpretive models. originalism, transnationalism, and universalism
As outlined earlier in this paper, originalism, transnationalism, and universalism are all possible interpretive frameworks that the WTO could apply to the public morals exception. All these frameworks, however, seem to be problematic solutions that are not aligned with WTO jurisprudence and that may result in a destabilisation of the global trade regime. Application of any one of these three frameworks would result in a direct conflict with the statements regarding public morality made by the Panel in US-Gambling and adopted in China-Audiovisual.
A retreat to originalism would constrain the concept of public morals to how it was understood at the time of the treaty's negotiation. This is problematic for a number of reasons. As discussed above, there was little discussion regarding the denotation of public morals during the drafting process. The Panel in US-Gambling also explicitly stated that public morals and public order should be interpreted dynamically, emphasizing that "the content of these concepts for Members can vary in time and space, depending upon a range of factors, including prevailing social, cultural, ethical and religious values". (77) Additionally, a retreat to originalism would be directly inconsistent with WTO interpretations of other enumerated exceptions under Article XX.
Transnationalism espouses the idea that certain morals are shared universally. Under such a framework, a country seeking to justify a measure using the public morals exception would have to provide evidence that the public moral in question was widely held by a group of similarly situated countries. The Panel in US-Gambling, however, defined public morals as "standards of right and wrong conduct maintained by or on behalf of a community or nation". (78) The Panel's decision to include nation, along with community, in its definition of public morals strongly suggests that the public morals exception can apply even if the moral at issue is held by only a single country. Universalism, which would require states to demonstrate universal or near-universal practice, also fails on the same reasoning.
Marwell first advanced the proposal of applying evidentiary unilateralism to the public morals exception. Since then, other scholars have also encouraged the WTO to utilize a similar methodology for evaluating public morals claims, although without evoking the title evidentiary unilateralism. (79) Under evidentiary unilateralism, states are permitted to unilaterally define public morals, subject to justifying their restrictions by overcoming a number of evidentiary hurdles. The advantage of Marwell's proposal is that it creates a transparent and predictable system while side-stepping "the most problematic and value-laden issue: whether a particular interest is vital enough to fall under the GATT and the GATS public morals exception". (80)
Marwell acknowledges that the most powerful criticism of his proposal is that it risks being overly broad, allowing countries to enact protectionist measures under the guise of public morality. He points to the role of two doctrinal constraints to limit the potential misuse of the public morals exception: the least restrictive means test, and the requirement that the restriction be applied in a non-discriminatory manner. (81) These constraints correspond to the necessity and chapeau analyses, respectively, in US-Gambling and China-Audiovisual. The least restrictive means test "harnesses the complainant's self-interest in further trade liberalization as an engine to identify and eliminate inefficiently trade-restrictive measures", as it is the complaining party who carries the burden to propose an alternative to the challenged measure. (82)
Criticisms of Evidentiary Unilateralism
Wu challenges Marwell's proposal, writing that it "falls short when one considers whether its adoption would enhance or undermine the global trade regime". (83) To highlight what he determines are weaknesses in Marwell's proposal, Wu proposes the following hypothetical:
Select Arab countries enact a labeling requirement that any company with a connection to the multinational forces in Iraq must attach a prominent sticker stating that "this product is made by a company that supports the Iraqi occupation." (84)
This hypothetical restriction would pass Marwell's least restrictive means test because the restriction is not a total ban, merely a labelling requirement. Additionally, as the goods may originate in any country, including the implementing Arab states, it would pass the non-discrimination test. Finally, Marwell's evidentiary requirements would also be easily met through opinion polls, which "would likely show strong public support for such measures", or through proclamations by religious leaders. (85)
As a result, Wu contends that a "unilateral system, even one with constraints, would still allow countries to enact restrictions under the rubric of public morality, even as their underlying motive remains political". (86) Over time, countries hurt by the inevitable tit-for-tat political one upping would withdraw their support from an "increasingly politicized" WTO. (87) Wu concludes that "Marwell's vision of 'unilateralism with constraints,' if enacted, could gradually destabilize and politicize the international trade regime". (88) Tyler Smith largely agrees, writing that Marwell's framework is "deficient because it allows for too many situations that could permissibly undermine the global trade regime". (89) I will return to these criticisms after summarizing Wu's and Smith's proposals.
RESTRICTION-SENSITIVE APPROACHES (90)
Wu contends that the most important doctrinal question left unaddressed by US-Gambling is whether the public morals exception covers only restrictions by a government to protect its own citizens (inward-directed), or whether it can also be extended to encompass extraterritorial applications (outward-directed). (91) To frame his discussion, Wu suggests dividing public morality restrictions into three categories, Types I-III.
Type I restrictions are those used by a state to directly safeguard the morals of the inhabitants within its borders. The US ban on gambling, as well as bans on pornography, narcotics, and alcohol would fall into this category. Type II restrictions aim to protect those involved in the production of the products or services in the exporting state. This could, for example, take the form of a ban on products made using child labour. Finally, Type III restrictions are "aimed at products or services produced in an exporting state whose practices are considered morally offensive by the importing state, but where the practices are not directly involved in the production of the products or service being banned" (92)--for example, a total ban on importing goods from Zimbabwe because of the government's ongoing human rights violations. Wu asserts that while US-Gambling explicitly endorsed Type I restrictions, it left the legality of Type II and Type III restrictions uncertain: "Without an explicit endorsement by the WTO that either type of restriction is legal, governments will continue to be reluctant to employ trade restrictions to spur social change in other countries." (93)
Wu advances a number of propositions as a way to move forward from US-Gambling, with the propositions aimed at reducing the ambiguity surrounding which restrictions can be justified under Article XX(a)'s exception. Particularly, the WTO should apply a bifurcated approach in which inward- and outward-directed measures are treated differently by adjudicators. Should the WTO extend Article XX(a) to encompass Type II and Type III measures, Wu argues for the imposition of an additional set of requirements that would need to be satisfied for such measures to be saved.
Type I Restrictions
Wu proposes that WTO adjudicatory bodies apply a four-part test for Type I (inward-directed) measures. (94) First, Wu argues that there needs to be a more concrete method to determine whether a measure falls within the public morals exception than the US-Gambling language of "standards of right and wrong", which offers little guidance. Adjudicators should consider whether the measure at stake fits within a category of morality as understood by the GATT drafters, such as gambling. If it does not, the adjudicators should then consider whether the measure falls within a jus cogens norm or a category widely recognized as a moral issue. Wu does not define what he means by jus cogens norm. For a "category widely recognized", he provides the example that states may differ on the specific restrictions imposed on imports of food or beverages for religious reasons, "but most would recognize that the category writ large qualifies as an issue of public morality". (95) Accordingly, Wu's proposal is for the imposition of a quasi-universalist requirement, in the sense that it requires a consensus as to the relevance of a category of conduct, while leaving the specifics within each universal category to be determined at the local level.
Provided the measure falls within the public morals umbrella, the adjudicators would then move on to the second and third parts of the test--necessity and non-discrimination--as applied in US-Gambling. Finally, Wu proposes that a fourth step be added as "a guard, albeit an imperfect one, against disguised protectionism". (96)
He suggests that "only measures which are, in effect, statutes passed through a legislative process, be allowed to qualify under the public morals exception". (97) He argues that this additional limitation, although not flawless, creates additional costs that will hopefully deter some states from enacting protectionist measures under the guise of morality. Wu asserts that his approach, while allowing public morals to evolve dynamically, also eliminates the risk of overbreadth, as the scope can only expand so far as there is near-universal agreement that a certain category falls within public morality.
Type II and III Restrictions
Wu then moves on to his proposals for Type II and Type III restrictions (outward-directed), for which he suggests three additional requirements. First, the enacting state must "provide direct proof", in the form of "opinion polls or a direct referendum, that a significant percentage of its citizens" care "strongly about the moral issues at hand". (98) Second, "the moral norm at stake must itself have been codified by an international organization through a treaty, guideline, code, or other document that has been explicitly endorsed by a majority of WTO members". (99) Wu provides the examples of the International Labour Organization's guidelines on child labour and the UN Convention on Genocide. (100) Finally, Wu argues that outward-directed restrictions should only be valid in cases where the enacting state can demonstrate that the affected state or states have explicitly embraced the moral norm in question. (101) Wu argues that this is normatively fair because reasonable expectations are created among trading partners that a state will abide by the commitments it makes in ratified treaties. (102)
BLACK MARKET REGULATION ADDITION
Smith approaches the public morals exception from a slightly different perspective. Smith argues that the current public morals exception jurisprudence "fail[s] to account satisfactorily for the presence of non-state actors, most notably domestic black markets and underground economies". (103) Specifically, he asks how the WTO should address states that benefit from non-state actors and black markets that illegally circumvent trade agreements. (104) Smith provides the example of the US prohibition on alcohol from 1920 to 1933, which he argues would pass through all parts of Wu's Type I restriction test. (105) While the US imposed a blanket prohibition on all imports of alcohol, its domestic alcohol black market flourished during this period, with dramatic increases in consumption and price. Wu's model would therefore legitimize a trade-restrictive measure that, in its effects, kept out foreign imports of alcohol while allowing domestic bootleggers to reap massive economic benefits. As the jurisprudence has held that measures can be discriminatory in their intention and their effects, (106) trade-restrictive measures that in effect allow for benefits to domestic black market producers are in violation of trade law.
To avoid the pitfall of trade-restrictions whose effects allow billions of dollars of trade to be circumvented by black market economies every year, Smith argues that Wu's fourth requirement of Type I restrictions be amended--namely, adjudicatory bodies should inquire into the substance and enforcement of internal legislation, rather than simply inquiring whether the legislation has been enacted. (107) Additionally, states would have to provide evidence of an executive enforcement component, demonstrating good-faith prosecutorial attempts at reducing the illegal activity in question. (108) Smith believes these additions would close the loophole and "give the public morals analysis more teeth". (109)
While Smith points to what could amount to a gap in the application of Article XX(a), his assertion that the public morals exception is being used by "protectionist regimes that conveniently overlook that black markets in consumer goods are thriving within the state, so much so that allowing foreign exports into its ports is unnecessary" (110)--such as for black market films and music--is overstated. It is unlikely that a state would determine that the best protectionist practice is to enact trade restrictions and protect the restrictions using the public morals exception in order to allow a black market to flourish, especially since the state itself likely receives little benefit from black market activity, which fails to generate tax revenues, promotes organized crime, and undermines the legitimate economy. That said, Smith's proposal could be useful for adjudicators in certain circumstances, as I will discuss below.
VI A DEFENCE OF EVIDENTIARY UNILATERALISM
Having surveyed the existing case law and the work of prominent scholars, this section will argue that the substance of public morality should be unilaterally decided by Member States, but then subjected to a series of checks and balances. Such a solution, while still susceptible to abuse, comes closest to staying true to WTO jurisprudence on the public morals exception while striking the ever elusive balance between trade liberalization and state autonomy. I will first address what I see as the shortcomings of Wu's (and by adoption, Smith's) proposal. Next, I will re-examine Marwell's evidentiary unilateralism proposal and argue that China-Audiovisual's application of US-Gambling aligns the jurisprudence in favour of his methodology. Finally, I will argue that certain aspects of Wu's and Smith's proposals should be included at the evidentiary requirement stage of Marwell's proposal to create the most robust and transparent solution.
WEAKNESSES OF THE RESTRICTION-SENSITIVE APPROACH
(i) The Three-Category Division
Wu's reliance on, and Smith's acceptance of, a three-part distinction between different "types" of measures is flawed. Wu justifies the additional evidentiary barriers he proposes for Type II and Type III measures because the legality of these measures "was left uncertain" by US-Gambling, which explicitly endorsed only Type I restrictions. (111) As Trebilcock, Howse, and Eliason write, "Wu creates a distinction absent from the jurisprudence on, and contrary to the structure of, Article XX, between 'inward-directed' and 'outward-directed' measures." (112) To illustrate, they point to the fact that it is widely accepted that a ban on importing child pornography can be justified under Article XX(a). (113) This ban could be interpreted as an outward-directed ban because it aims to protect the children exploited in films located outside of the importing state, as much if not more than the citizens of the importing state. (114) Under Wu's analysis of US-Gambling, the legality of such a ban is unclear. Additionally, the Appellate Body in Shrimp/Turtle explicitly addressed the legality of outward-directed restrictions:
It appears to us, however, that conditioning access to a Member's domestic market on whether exporting Members comply with, or adopt, a policy or policies unilaterally prescribed by the importing Member may, to some degree, be a common aspect of measures falling within the scope of one or another of the exceptions (a) to (j) of Article XX.... It is not necessary to assume that requiring from exporting countries compliance with, or adoption of, certain policies (although covered in principle by one or another of the exceptions) prescribed by the importing country, renders a measure a priori incapable of justification under Article XX. (115)
Accordingly, it is clear that Wu's assertion that only inward-directed measures have been explicitly recognized as legal under Article XX(a) is incorrect.
Wu's framework is also structurally defective. Smith, who ultimately accepts Wu's basic approach as the best available framework, (116) states that reliance on the "easily kaleidoscopic Type I, II, and III restrictions is inappropriate, or at least misguided". (117) He argues that the category approach suffers from the major flaw of looking at the intent of the restriction rather than fully addressing the effects. Smith states that what Wu's three-category distinction "fails to address is that calling a restriction inwardly-oriented is simply an issue-framing exercise". (118) Indeed, as Trebilcock, Howse, and Eliason highlight, a ban on child pornography could be framed as either an inward- or outward-directed measure. (119) Wu's categories are exceptionally fluid, and differentiating between them is largely an exercise in nomenclature. Accordingly, Wu's differentiation between Type I, II, and III measures should be abandoned, and all measures should be examined on their merits under the same rubric of tests.
(ii) Step 1 of Wu's Proposal
I will now return to the hypothetical labelling requirement for companies supplying goods to troops in Iraq, discussed above. Wu writes that his proposed approach differs from Marwell's because it imposes a quasi-universalist requirement, rather than allowing Member States to unilaterally define public morals. (120) As a result, Wu contends that his proposal "significantly lessens the potential risk that the public morals exception could be hijacked by geopolitical or protectionist interests, at least insofar as Type I restrictions are concerned". (121) He argues that the hypothetical labelling restriction for companies providing goods to troops in Iraq would fail the first part of his test as there is no agreement about which widely recognized category of public morality the opposition to war would fall within. (122) In fact, there are arguably a number of widely recognized categories of public morality that the opposition to the Iraq war could fall within--most notably, norms against aggression, unlawful use of force, and unilateral declarations of war.
Wu's suggestion that adjudicators look to jus cogens norms as a source of public morality is also problematic, especially in light of the fact that he provides no indication of what he means by jus cogens. Article 53 of the Vienna Convention on the Law of Treaties defines jus cogens as "a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character". (123) While there is no firm agreement on which norms qualify as jus cogens, the International Law Commission, in its final report to the Vienna Convention, included a number of examples put forward by its members as guidance. (124) These include the principles of the Charter of the United Nations prohibiting the unlawful use of force, (125) international laws that prohibit any other act illegal under international law, and international laws that oblige states to cooperate in the suppression of certain acts such as piracy, genocide, torture, or trade in slaves. (126) The US' invasion of Iraq is viewed by many, in both Arab and non-Arab states, as an illegal war. (127) Indeed, scholars have argued that the US violated the jus cogens norm against wars of aggression when it invaded Iraq. (128) Accordingly, Wu's assertion--that the hypothetical restriction imposed by states against the Iraq war would fail the first step of his test because such a restriction was not contemplated by the drafters of the GATT and is not a jus cogens norm or widely accepted--is likely false. Wu's primary criticism of evidentiary unilateralism is that it would lead to politicization. The above discussion demonstrates that a quasi-universalist approach is just as susceptible to political manipulation.
Wu proposed his additional first step because in his opinion, the US-Gambling "language of 'standards of right and wrong' offers little concrete guidance as to what measures fall within the scope of the exception". (129) As I have demonstrated, his proposal lacks clarity and provides little guidance as to the boundaries of public morals given the amorphous and undefined nature of jus cogens norms, and norms "widely recognized" as moral issues. Additionally, the sentence Wu points to as inconclusive--quoted simply as "standards of right and wrong"--reads, in its entirety, "...standards of right and wrong conduct maintained by or on behalf of a community or nation." (130) The words "community" and "nation" do not translate to necessitating quasi-universal approval. Indeed, the Panel in both US-Gambling and China-Audiovisual explicitly held that states should be given scope to define and apply for themselves the concepts of public morals, (131) providing firm guidance as to what they envision public morals to include. Disentangling contemporary moral and political issues will be problematic under any theory. (132) The best way to approach this challenge is therefore to step away from considering whether the issue is political or moral from an outsider's perspective, and instead allow states to determine their own public morals, but require that they furnish evidence proving that the public moral is one widely held by their constituents, as discussed below.
(iii) Summary of Weaknesses
Wu's proposed solution needlessly complicates the public morality inquiry. The basis of his three-part distinction is contradicted by WTO jurisprudence, and the categories themselves are extremely fluid and devoid of independent meaning. His proposal of an additional first step to determine whether a measure falls within the concept of public morality is also flawed. As discussed above, WTO jurisprudence clearly adopts a dynamic and fluid understanding of public morals. Finally, Wu's suggestion that adjudicators rely on jus cogens or a category widely recognized as a moral issue to determine whether a measure falls within public morals should not be implemented. Both of these concepts are amorphous and are likely to lead to more confusion than clarity. Additionally, the WTO has explicitly stated that public morals are those maintained by or on behalf of a community or nation. To require a state to prove quasi-universal acceptance of a norm strips public morality of its most basic function--to allow states to regulate issues they deem important. Allowing states to unilaterally define public morality is more consistent with WTO jurisprudence and will provide the greatest degree of certainty in the international trade regime.
EVIDENTIARY UNILATERALISM--THE PATH FORWARD
(i) Unilateral Determination of Public Morals
Marwell argues that because the Panel in US-Gambling considered historical facts and the public morals regulations of other states, the case, "at least implicitly, suggests that States invoking a public morals defence will be expected to present evidence of similar practice by other states". (133) Marwell posits that taken to an extreme, the doctrine created in US-Gambling could be utilized to restrict the autonomy of Member States from passing measures that protect legitimate moral interests by barring them from unilaterally defining public morals. (134) In light of the Appellate Body's application of US-Gambling in China-Audiovisual, however, Marwell's reading is overstated. While the Panel in US-Gambling undertook a careful consideration of the substance of "public morals", looking to drafting history and state practice, the Panel was explicit in its conclusion that there are sensitivities associated with the interpretation of public morals and that "the content of these concepts for Members can vary in time and space, depending upon a range of factors, including prevailing social, cultural, ethical and religious values". (135) The Panel in China-Audiovisual did not make any inquiries into other states' practices, or the historical or original understanding of public morals; it simply quoted the above discussion and adopted the US-Gambling position that public morals denote standards of right and wrong conduct maintained by or on behalf of a community or nation. Indeed, the Panel went further, holding that Member States "should be given some scope to define and apply for themselves the concepts of 'public morals'... in their respective territories, according to their own systems and scales of values". (136) This application leans toward unilateral determination of public morals.
As alluded to by the Panel in US-Gambling, assessing whether an issue is vital to a culture or nation that is not one's own is a very sensitive undertaking. Marwell rightly points out that one of the most attractive features of unilateral determination of public morality is that adjudicators will no longer be required to opine on whether a country's asserted norm is important enough to fit under the public morals exceptions in the GATT and the GATS. Additionally, as Wu's hypothetical demonstrates, determining whether a restriction is based on politics or a matter of public morality is a difficult and impractical process. Attaining the appropriate balance between trade liberalization and states' regulatory autonomy therefore begins with a unilateral determination of public morality. However, the elusive balance cannot be reached without imposing certain restraints to help ensure that states do not enact protectionist measures under the guise of morality.
(ii) Evidentiary Requirements
The strongest counterargument to unilateral determination of public morals is the potential for overbreadth and misuse. Both Wu and Smith suggest that unilateralism would inevitably lead to "tit-for-tat" political manoeuvring, allowing for too many situations where states could destabilize and undermine the international trade regime. (137) While their descriptions are sensationalized, one must recognize that there is a real concern that allowing states to unilaterally define public morals could shield inefficiently trade-restrictive or disguised protectionist measures from WTO scrutiny. To combat such a possibility, I suggest that a state should be required to clear three evidentiary hurdles to qualify for protection under the public morals exception.
The defending state should be required to prove that (1) the public moral claimed is one widely held by its constituents; (2) the impugned measure is necessary and is the least trade-restrictive means for achieving its goal; and (3) the measure satisfies the chapeau requirements that the measure is not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination. Taken together, these evidentiary burdens create an effective system of checks and balances that impose costs large enough to dissuade states from foul play, and that ensure the WTO adjudicatory bodies have the tools to adequately measure compliance.
Proof of the Public Moral's Existence
To rely on the public morals exception, a state should be required to provide evidence that the public moral at issue is widely held by its constituents. This differs from Wu's proposition that the issue pass a quasi-universal threshold, as under evidentiary unilateralism, the state invoking the exception would not have to provide evidence that other states share the public moral at issue. Requiring evidence that the public moral at issue is widely held by the constituents of the state invoking the public morals exception decreases the likelihood that a single powerful actor within the state would be able to enact protectionist measures. As Marwell suggests, substantial evidence of internal conditions may include historical practices, contemporary public opinion polls, or referendum results. (138) At this step, adjudicators would not be required to make normative judgements about public morality--they must simply make an objective decision about whether the evidence furnished demonstrates that the issue is accepted as one of public morality in the state in question.
Wu's proposed fourth step--that only statutes passed through a legislative process be allowed to qualify under the public morals exception--should be used as a reference point. Such a measure would assist in ensuring some degree of debate about the necessity of the measure within the instating country. It would also promote transparency and ideally create a legislative record of internal discussions that adjudicators could examine as evidence. (139) As Wu acknowledges, such a process may be compromised in certain states with less than ideal democratic track records. However, he maintains, and I agree, that this proposed limitation creates additional transaction costs, which would hopefully deter some states or individuals from enacting disguised protectionist measures. (140)
In addition to inquiring into whether relevant legislation has been enacted, adjudicators could also utilize Smith's proposal of inquiring into the substance and enforcement record of the legislation to assist in determining whether the enacting state legitimately holds the issue as one that threatens public morality. (141) For example, if the state cannot provide evidence that it has taken good faith steps to address illegal domestic markets that threaten the public moral--such as black market alcohol, pornography, films, or music--adjudicators may find that this is sufficient proof that the measures are protectionist rather than grounded in a legitimate concern for public morality.
Necessity Test/Least Restrictive Means
The necessity and least restrictive means tests are also an important and effective check on trade-restrictive measures. The requirement that a measure be "necessary to protect public morals" is explicitly incorporated in both the GATT and the GATS. (142) As described above, the WTO in US-Gambling adopted the tripartite framework laid out in Korea-Beef and EC-Asbestos. (143) The test requires adjudicators to weigh and balance several factors:
1. the importance of interests or values that the challenged measure is intended to protect;
2. the extent to which the challenged measure contributes to the realization of the end pursued by that measure; and
3. the trade impact of the challenged measure. (144)
Christopher Doyle undertook an in-depth examination of the application of the necessity test under all the exceptions in Article XX to which the test applies. (145) Of the six focal cases Doyle discusses in his article, only EC-Asbestos resulted in an ultimate finding of justification under Article XX. (146) Doyle discusses the role of the "means-end analysis" or "least restrictive trade means" test in a number of cases. (147) Marwell also highlights the importance of the least restrictive means test as a counterbalance to the unilateral determination of public morals. (148) This test was expanded in China-Audiovisual, in which the Panel held that adjudicators should weigh the restrictive effect of the measures on those who wish to engage in importing the products at issue, in addition to the impact on the importation of the products themselves. (149) Doyle argues that this is favourable to the complainant because it increases the restrictive nature of a measure, (150) and hence the burden of justification. Accordingly, the necessity examination provides an important evidentiary burden in the public morals analysis.
The final hurdle a state should be required to pass is the non-discrimination test. As Trebilcock, Howse, and Eliason aptly write,
The kind of case-by-case scrutiny under the chapeau to ensure that public morals-based trade measures are not arbitrarily or unjustifiably discriminatory belies Wu's greatly exaggerated claim that .." [the] strength of the WTO system might slowly come undone as it is inundated with tit-for-tat, geopolitically motivated sanctions". (151)
Non-discrimination extends to both measures that are facially discriminatory, as well as those that are discriminatory in their effects. The evidentiary threshold for proving that a facially discriminatory measure does not in fact discriminate is a high bar. As evidenced by the Appellate Body in US-Gambling, if a measure is facially discriminatory, evidence of actual discrimination as a result of the measure is not necessary; rather, the defendant has the heavy burden of proving that the measure does not discriminate in effect. The Appellate Body was clear in its holding that ambiguous evidence will not satisfy the evidentiary burden. Marwell also points out that, with regard to categorical bans, the non-discrimination doctrine will "filter out protectionist and non-protectionist but inefficiently trade-restrictive measures, because many categorical regulations apply to both domestic and foreign products". (152) The high level of scrutiny under the chapeaux of the public morals exceptions in the GATT and GATS is vital to maintaining balance within the system.
The jurisprudence of the WTO explicitly highlights the shifting and culturally sensitive nature of public morals, and suggests that states should be provided with the scope to define and apply, for themselves, the concepts of public morality in their respective territories, according to their own systems and scales of values. Attempting to classify measures by type of restriction, instead of subjecting each impugned measure to the same analysis, is problematic as such categories are intrinsically fluid, and the framing itself is merely an exercise in nomenclature. Allowing states to unilaterally define public morals, and treating each measure on its facts on a case-by-case basis, is an important first step to ensuring transparency and legitimacy in the WTO. The balance between free trade and sovereign state regulation of public morality is a delicate one. While no proposal is impervious to abuse, I have argued that, taken together, requiring evidence that shows that the public moral is a legitimate issue in the enacting state, that the measures are necessary and applied in the least trade-restrictive manner, and that the restrictions are not arbitrarily or unjustifiably discriminatory, will provide a level of predictability and stability in the global trading regime, while also ensuring appropriate sovereignty to culturally and socially content-specific concepts of morality.
* Many thanks to Michael Trebilcock for his insight and guidance on earlier drafts of this paper. Thanks also to Stephen Aylward and the Senior Board of the University of Toronto Faculty of Law Review for their editorial suggestions.
(1) 30 October 1947, 58 UNTS 187, Can TS 1947 No 27 (entered into force 1 January 1948) [GATT].
(2) 15 April 1994, 1869 UNTS 183, 33 ILM 1167 (entered into force 1 January 1995) [GATS].
(3) United States--Measures Affecting the Cross-Border Supply of Gambling and Betting Services (Complaint by Antigua) (2005), WTO Doc WT/DS285/AB/R (Appellate Body Report) [US-Gambling--AB Report].
(4) China--Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products (Complaint by the United States) (2009), WTO Doc WT/DS363/ AB/R (Appellate Body Report) [China-Audiovisual--AB Report].
(5) Jeremy C Marwell, "Trade and Morality: The WTO Public Morals Exception After Gambling" (2006) 81:2 NYUL Rev 802.
(6) See e.g., Liane M Jarvis, "Women's Rights and the Public Morals Exception of GATT Article 20" (2000) 22:1 Mich J Int'l L 219; Tatjana Eres, "The Limits of GATT Article XX: A Back Door for Human Rights?" (2004) 35:3 Geo J Int'l L 597; Miguel A Gonzalez, "Trade and Morality: Preserving 'Public Morals' Without Sacrificing the Global Economy" (2006) 39:3 Vand J Transnat'l L 939; Nicolas F Diebold, "The Morals and Order Exceptions in WTO Law: Balancing the Toothless Tiger and the Undermining the Mole" (2008) 11:1 J Int'l Econ L 43.
(7) Marwell, supra note 5.
(8) Mark Wu, "Free Trade and the Protection of Public Morals: An Analysis of the Newly Emerging Public Morals Clause Doctrine" (2008) 33:1 Yale J Int'l L 215.
(9) Jarvis, supra note 6 at 220, 230-33, 236-38.
(10) Michael Trebilcock, Robert Howse & Antonia Eliason, The Regulation of International Trade, 4th ed (London, UK: Routledge, 2013) at 733.
(11) Eres, supra note 6 at 602.
(12) Gonzalez, supra note 6 at 971-72.
(13) GA Res 217 (III), UNGAOR, 3d Sess, Supp No 13, UN Doc A/810, (1948) 71.
(14) GATT, supra note 1, arts XX(b), (e), (g), (i), (j).
(15) Ibid, art XX(a).
(16) Article XIV(a) along with the chapeau of the GATS, supra note 2 reads as follows:
Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where like conditions prevail, or a disguised restriction on trade in services, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any Member of measures ... necessary to protect public morals or maintain public order.
(17) Ibid, art XIV(a), n 5.
(18) Steve Charnovitz, "The Moral Exception in Trade Policy" (1998) 38:4 Va J Int'l L 689 at 704 (Charnovitz provides an excellent historical study of art XX(a)).
(19) Ibid at 703.
(20) Michael J Trebilcock, Understanding Trade Law (Cheltenham: Edward Elgar, 2011) at 10-11 [Trebilcock, Understanding Trade Law].
(21) Charnovitz, supra note 18 at 703.
(22) Ibid at 704, citing William L Clayton, Letter of Assistant Secretary Clayton: Proposals for Consideration by an International Conference on Trade and Employment, 13 Department of State Bulletin (No 328) (Washington, DC: United States Government Printing Office, 1945) 914 at 923.
(23) Charnovitz, supra note 18 at 704-05.
(24) Ibid at 705.
(26) Wu, supra note 8 at 218, citing Report of the First Session of the Preparatory Committee of the United Nations Conference on Trade and Employment, 1947, UN Doc E/PC/T/33, at 60, art 32(a); Report of the Drafting Committee of the Preparatory Committee of the United Nations Conference on Trade and Employment, 1947, UN Doc E/PC/T/34, at 31, art 37(a); Report of the Second Session of the Preparatory Committee of the United Nations Conference on Trade and Employment, 1947, UN Doc E/PC/T/186, at 37, art 43(a).
(27) Marwell, supra note 5 at 840-42.
(28) WTO, Trade Policy Review, Report by the Secretariat: Israel, WTO Doc WT/TPR/S/157 (2005) at 30.
(29) WTO, Trade Policy Review, Report by the Secretariat: Indonesia, WTO Doc WT/TPR/S/184 (2007) at 46.
(30) See Wu, supra note 8 at 250-51.
(32) Treasury and General Government Appropriations Act, 2002, Pub L No 107-67, [section] 619, 115 Stat 514 at 550.
(33) EC, Council Decision 97/602/EC of 22 July 1997 concerning the list referred to in the second subparagraph of Article 3(1) of Regulation (EEC) No 3254/91 and in Article 1(1)(a) of Commission Regulation (EC) No 35/97,  OJ, L 242/64; EC, Council Regulation (EC) 3254/91 of 4 November 1991 prohibiting the use of leghold traps in the Community and the introduction into the Community of pelts and manufactured goods of certain wild animal species originating in countries which catch them by means of leghold traps or trapping methods which do not meet international humane trapping standards,  OJ, L 308/1. For more background on the import ban, see Gillian Dale, "The European Union's Steel Leghold Trap Ban: Animal Cruelty Legislation in Conflict with International Trade" (1996) 7:2 Colo J Int'l Envtl L & Pol'y 441.
(34) 18 USC [section] 1084.
(35) 18 USC [section] 1952.
(36) 18 USC [section] 1955.
(37) United States--Measures Affecting the Cross-Border Supply of Gambling and Betting Services (Complaint by Antigua) (2004), WTO Doc WT/DS285/R at paras 3.30-31 (Panel Report) [US-Gambling--Panel Report]. The definition of "other recreational services" comes from the United Nations Central Product Classification System.
(38) Ibid at para 6.444. It should also be noted that the US did not make any mention of public morals or public order in their first written submission; it was only after the first oral round that the US raised this defence.
(39) Ibid at para 6.514, n 960.
(40) United States--Standards for Reformulated and Conventional Gasoline (Complaint by Venezuela) (1996), WTO Doc WT/DS2/AB/R at 22 (Appellate Body Report) [US-Gasoline].
(41) United States--Import Prohibition of Certain Shrimp and Shrimp Products (Complaint by Thailand et al) (1998), WTO Doc WT/DS58/AB/R at paras 115-19 (Appellate Body Report) [Shrimp/Turtle].
(42) Korea--Measures Affecting Imports of Fresh, Chilled and Frozen Beef (Complaint by Australia and the United States) (2000), WTO Doc WT/DS161, 169/AB/R at para 156 (Appellate Body Report) [Korea-Beef].
(43) US-Gambling--Panel Report, supra note 37 at para 6.449.
(44) Ibid at para 6.465.
(45) Ibid at para 6.461.
(46) GATT, supra note 1, art XX(g).
(47) Shrimp/Turtle, supra note 41 at para 129.
(48) US-Gambling--Panel Report, supra note 37 at para 6.472-74.
(49) See GATT, supra note 1, arts XX(a), (b), (d).
(50) Korea-Beef, supra note 42 at paras 162-63; European Communities--Measures Affecting Asbestos and Asbestos-Containing Products (Complaint by Canada) (2001), WTO Doc WT/DS135/AB/R at para 172 (Appellate Body Report) [EC-Asbestos].
(51) US-Gambling--Panel Report, supra note 37 at para 6.477.
(52) Korea-Beef, supra note 42 at paras 163, 166.
(53) US-Gambling--Panel Report, supra note 37 at para 6.535.
(54) Ibid at para 6.531.
(55) US-Gambling--AB Report, supra note 3 at para 309.
(56) GATT, supra note 1, art XX.
(57) See e.g., Shrimp/Turtle, supra note 41; US-Gasoline, supra note 40.
(58) Shrimp/Turtle, supra note 41 at paras 165, 172.
(59) US-Gambling--AB Report, supra note 3 at para 369.
(60) 15 USC [section] 3001-3007.
(61) US-Gambling--AB Report, supra note 3 at para 369.
(62) Trebilcock, Understanding Trade Law, supra note 20 at 120.
(63) China--Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products (Complaint by the United States) (2009), WTO Doc WT/DS363/R at para 2.3 (Panel Report) [China-Audiovisual--Panel Report].
(64) Ibid at para 4.32.
(65) Ibid at paras 4.113-20.
(66) Ibid at para 4.319.
(67) Ibid at para 4.320.
(69) Ibid at para 4.321.
(70) Ibid at paras 4.439-64.
(71) Ibid at para 7.706.
(72) Ibid at para 7.759.
(73) Ibid at para 1.186, citing Brazil--Measures Affecting Imports of Retreaded Tyres (Complaint by the European Communities) (2001), WTO Doc WT/DS332/AB/R at para 118 (Appellate Body Report).
(74) China-Audiovisual--Panel Report, supra note 63 at para 7.911.
(75) Ibid at para 7.912.
(76) China-Audiovisual--AB Report, supra note 4 at para 331.
(77) US-Gambling--Panel Report, supra note 37 at para 6.461.
(78) Ibid at para 6.465.
(79) See e.g., Diebold, supra note 6; Robert Howse & Joanna Langille, "Permitting Pluralism: The Seal Products Dispute and Why the WTO Should Accept Trade Restrictions Justified by Non-instrumental Moral Values" (2012) 37:2 Yale J Int'l L 367 at 413-19 (the authors argue for a pluralistic interpretation of Article XX(a)).
(80) Marwell, supra note 5 at 825-26.
(81) Ibid at 826.
(82) Ibid at 828.
(83) Wu, supra note 8 at 238.
(84) Ibid at 239; see also Tyler M Smith, "Much Needed Reform in the Realm of Public Morals: A Proposed Addition to the GATT Article XX(a) 'Public Morals' Framework, Resulting from China--Audiovisual" (2011) 19:3 Cardozo J Int'l & Comp L 733 at 761 (Smith repeats Wu's hypothetical).
(85) Wu, supra note 8 at 239.
(88) Ibid at 240.
(89) Smith, supra note 84 at 761.
(90) I have borrowed this name for Wu's approach from Smith, ibid at 763, as Wu does not provide one.
(91) Wu, supra note 8 at 235; this distinction between inward- and outward-directed measures was first proposed by Charnovitz, supra note 18.
(92) Wu, supra note 8 at 235.
(93) Ibid at 236.
(94) Ibid at 243.
(98) Ibid at 245.
(100) Ibid at 245-46.
(101) Ibid at 246.
(102) Ibid, citing Kyle Bagwell, Petros C Mavroidis & Robert W Staiger, "It's a Question of Market Access" (2002) 96:1 Am J Int'l L 56 at 73-74.
(103) Smith, supra note 84 at 737.
(104) Ibid at 766.
(105) Ibid at 768 (Smith also provides China's pornography black market as an example. Despite China's importation ban on pornography, the industry generated $27 billion of revenue in 2006).
(106) Shrimp/Turtle, supra note 41 at paras 165, 172.
(107) Smith, supra note 84 at 769.
(108) Ibid at 769-70.
(109) Ibid at 772.
(111) Wu, supra note 8 at 236.
(112) Trebilcock, Howse & Eliason, supra note 10 at 735.
(115) Shrimp/Turtle, supra note 41 at para 121.
(116) Smith, supra note 84 at 769.
(117) Ibid at 766.
(118) Ibid at 765.
(119) Trebilcock, Howse & Eliason, supra note 10 at 735.
(120) Wu, supra note 8 at 244.
(123) Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331, art 53, 8 ILM 679 (entered into force 27 January 1980).
(124) "Reports of the Commission to the General Assembly" (UN Doc A/6309/Rev.1) in Yearbook of the International Law Commission 1966, vol 2 (New York: UN, 1967) 169 at 248 (UN Doc A/CN.4/ SER.A/1966/Add.l).
(125) Charter of the United Nations, 26 June 1945, Can TS 1945 No 7, art 2.4.
(126) For an excellent discussion of the origins and substance of jus cogens norms, see Rafael Nieto-Navia, "International Peremptory Norms (Jus Cogens) and International Humanitarian Law" in Lal Chand Vohrah et al, eds, Man's Inhumanity to Man: Essays on International Law in Honour of Antonio Cassese (The Hague: Kluwer Law International, 2003) 595. The International Court of Justice addressed jus cogens directly for the first time in the Case Concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of Congo v Rwanda),  ICJ Rep 6 at paras 64, 125, in which it acknowledged the prohibition on genocide to be a peremptory norm, but did not offer any guidance for how to determine other peremptory norms.
(127) See e.g., "Iraq war illegal, says Annan", BBC News (16 September 2004), online: BBC News <http://news.bbc.co.uk/2/hi/3661134.stm>; "The war begins", The Economist (20 March 2003), online: The Economist <http://www.economist.com/node/1649065>.
(128) See e.g., Ronald Kramer, Raymond Michalowski & Dawn Rothe, "'The Supreme International Crime': How the U.S. War in Iraq Threatens the Rule of Law" (2005) 32:2 Social Justice 52 at 75, n 2.
(129) Wu, supra note 8 at 243.
(130) US-Gambling--Panel Report, supra note 37 at para 6.465 [emphasis added].
(131) China-Audiovisual--Panel Report, supra note 63 at para 7.759, quoting US-Gambling--Panel Report, supra note 37 at para 6.461.
(132) Aside, perhaps, from originalism, where "legitimate" morals are confined by the drafters' intent; however, these morals are already parcelled with politicization at the time of drafting.
(133) Marwell, supra note 5 at 817.
(135) US-Gambling--Panel Report, supra note 37 at para 6.461.
(136) China-Audiovisual--Panel Report, supra note 63 at para 7.759, quoting US-Gambling--Panel Report, supra note 37 at para 6.461.
(137) Wu, supra note 8 at 239-40; Smith, supra note 84 at 761.
(138) Marwell, supra note 5 at 824-25.
(139) Wu, supra note 8 at 244.
(141) Smith, supra note 84 at 769-70.
(142) GATT, supra note 1, art XX(a); GATS, supra note 2, art XIV(a).
(143) Korea-Beef, supra note 42 at paras 162-63; EC-Asbestos, supra note 50.
(144) US-Gambling--Panel Report, supra note 37 at para 6.477.
(145) Christopher Doyle, "Gimme Shelter: The 'Necessary' Element of GATT Article XX in the Context of the China-Audiovisual Products Case" (2011) 29:1 BU Int'l LJ 143.
(146) Ibid at 164.
(147) Ibid at 159, 162-63.
(148) Marwell, supra note 5 at 828-29.
(149) China-Audiovisual--Panel Report, supra note 63 at para 7.788.
(150) Doyle, supra note 145 at 163.
(151) Trebilcock, Howse & Eliason, supra note 10 at 734.
(152) Marwell, supra note 5 at 834.
TAMARA S NACHMANI, B.A. (McGill), J.D. (Toronto), e-mail: email@example.com.
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|Author:||Nachmani, Tamara S.|
|Publication:||University of Toronto Faculty of Law Review|
|Date:||Jan 1, 2013|
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