In 2009 the WTO Panel China-Audiovisual Products was the first to rule on an Article XX lit a) GATT defence used to legitimize trade restrictions on moral grounds. So far countries have been reluctant to employ the vaguely defined public morals clause, but trends suggest that an augmented use is to be expected. The WTO has provided little indication as to which and whose morals are covered by the exception which has led to the widespread fear that the public morals clause might be abused to enforce unilateral policies against the principles of free trade.
This paper takes an abstract approach to the scope and content of the public morals exception of the GATT. Critically examining the drafting history, legal practice and current scholarly research the note concludes that a large variety of different values are covered by the concept of public morality. However the note suggests that an abuse of the exception is not to be expected as the high boundaries set by the WTO to the application of the exception render the legalization of most policy objectives highly unlikely.
Table of Contents
1. Introduction
1.1 Research Problem
1.2 Relevance of the Topic
1.3 Scope of the Study
2. China-Audiovisual Products (WT/DS363)
2.1 The Dispute
2.2 China’s Legalization under Article XX lit a) GATT
3. Content and Scope of Article XX lit a) GATT
3.1 Vienna Convention on the Interpretation of Treaties
3.1.1 Ordinary Meaning
3.1.2 Object and Purpose
3.1.3 Context
3.1.3.1 Preparatory Work
3.1.3.2 Prior Treaties
3.1.3.3 Perceived Need
3.1.3.4 Moral Trade Restrictions in Enforcement
3.1.3.5 Scholarly Research
3.2 The Question of Extraterritoriality
3.3 Summary
4. Boundaries to the Application of the Public Morals Clause
4.1 Burden of Proof
4.2 Means of Evidence
4.2.1 Originalism
4.2.2 Universalism
4.2.3 Moral Majority
4.2.4 Unilateralism
4.3 Necessity Test
4.4 Chapeau Clause of Article XX GATT
5. Conclusion
5.1 Summary
5.2 Outlook
Objectives and Topics
This paper explores the scope and content of the "public morals" exception under Article XX lit a) of the General Agreement on Tariffs and Trade (GATT). It investigates how this clause balances a nation's right to protect its cultural and moral values against the principles of free trade and non-discrimination, specifically in the context of recent WTO jurisprudence.
- The interpretation of Article XX lit a) GATT using the Vienna Convention on the Law of Treaties.
- Analysis of the China-Audiovisual Products dispute (WT/DS363).
- The legitimacy of extraterritorial application of the public morals exception.
- Examination of the "Burden of Proof," "Necessity Test," and the "Chapeau Clause" as boundaries to the exception.
- Evaluation of scholarly arguments regarding human rights, animal welfare, and labor rights within the moral exception.
Excerpt from the Book
3.1.3.2 Prior Treaties
Multilateral discussions on an international trade treaty from 1927 might shed more light on the understanding of public morals at the time (Convention for the Abolition of Import and Export Prohibitions and Restrictions 1927). First of all the drafting committee noted that the moral exception has been “admitted through long established international practice, as recorded in a large number of commercial treaties, to be indispensable and compatible with the principle of freedom of trade.” (League of Nations 1927: 21) The moral exception was seen as absolutely necessary in cross-border trade back then. (Charnovitz 1999: 9)
In a later review of the treaty the U.S. negotiators stated that “American prohibitions or restrictions imposed for moral or humanitarian reasons or to suppress improper traffic relate inter alia to intoxicating liquors, smoking opium and narcotic drugs, lottery tickets, obscene and immoral articles, counterfeits, pictorial representations of prize fights and the plumage of certain birds." (U.S. Foreign Relations 1942: 254) There is no secured source stating that these topics are actually covered by the moral exception, but the list reflects what topics where considered to be public morals at the time of the drafting. The last item is particularly interesting as the trade restriction was designed to protect birds outside of the own territory. (Charnovitz 1999: 9) In the discussion the Canadian government raised the concern if the admission of opium was covered (League of Nations 1928: 95) and Ireland noted that they prohibited the import of obscene pictures. (League of Nations 1928: 108) The president of the conference stated that these fall under the exception as well as the prohibition of foreign lottery tickets as demanded by Egypt. (League of Nations 1928: 110) Without question did opium, pornographic material and lottery tickets fall under the GATT exception for public morals.
Summary of Chapters
1. Introduction: This chapter introduces the research problem surrounding regulatory autonomy versus free trade, highlighting the China-Audiovisual Products case as a prime example of the tensions within the WTO system.
2. China-Audiovisual Products (WT/DS363): This chapter provides the background of the dispute, detailing the US challenge to Chinese content review mechanisms and the Panel’s findings regarding the Accession Protocol and GATT Article III.
3. Content and Scope of Article XX lit a) GATT: This chapter employs the three-step interpretation method of the Vienna Convention to analyze the ordinary meaning, object, purpose, and context of the moral exception.
4. Boundaries to the Application of the Public Morals Clause: This chapter evaluates the procedural and substantive hurdles, such as the Burden of Proof, Necessity Test, and the Chapeau Clause, that a member must overcome to justify trade restrictions.
5. Conclusion: This chapter synthesizes the findings, concluding that while the public morals exception is broad, the strict boundaries set by the WTO render the abuse of this clause for protectionist ends unlikely.
Keywords
GATT, Article XX lit a), Public Morals, WTO, Trade Restrictions, Sovereignty, China-Audiovisual Products, Necessity Test, Vienna Convention, Moral Relativism, Extraterritoriality, Burden of Proof, Chapeau Clause, Free Trade, Dispute Settlement.
Frequently Asked Questions
What is the primary focus of this research?
The work examines the legal scope and content of the "public morals" exception found in Article XX lit a) of the GATT, specifically how this provision is interpreted by the WTO and applied by member states.
What are the key themes addressed in the publication?
Key themes include the balance between state sovereignty and free trade, the evolving nature of "public morality," the procedural requirements for justifying trade measures, and the potential for the moral exception to be used as a "back door" for other interests like human or labor rights.
What is the main research question of this study?
The study asks how the scope of the public morals exception is defined and whether its inherent vagueness leads to a high risk of abuse by member states to justify trade-restrictive policies.
Which scientific methods are employed?
The research uses a legal-theoretical approach, applying the treaty interpretation rules from the Vienna Convention (Ordinary Meaning, Object and Purpose, and Context) alongside an analysis of past and current WTO case law.
What does the main body cover?
The main body covers the analysis of the China-Audiovisual Products dispute, the application of treaty interpretation to Article XX, and a detailed examination of the boundaries of the public morals clause, including the Necessity Test and the Burden of Proof.
Which keywords characterize this paper?
The core keywords include GATT, WTO, Public Morals, Trade Restrictions, Sovereignty, and Dispute Settlement.
How does the author view the potential for abusing the public morals clause?
The author suggests that while there is an initial fear that states might abuse the clause, the strict criteria set by WTO panels (the Necessity Test and the Chapeau Clause) act as strong deterrents against such misuse.
Does the paper specifically discuss the extraterritorial application of the moral exception?
Yes, Chapter 3.2 is dedicated to the controversy of extraterritoriality, discussing whether states can use the moral exception to protect values or enforce standards in other countries, as seen in cases like U.S.-Tuna-Dolphin.
- Arbeit zitieren
- Thea Freese (Autor:in), 2010, Morality and Culture in International Trade Law, München, GRIN Verlag, https://www.grin.com/document/159686
