Censoring the Censors in the WTO - Southwestern Law School

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26 J. Int’l Media & Entertainment Law Vol. 3, No. 1 Section II of this article discusses various government measures, which, if challenged in the WTO, could lead the government maintaining that measure to assert a defense under the public morals exception in which one or more of the above-stated questions is raised. Section III presents a history of the public morals exception, including a discussion of China — Media 39 and U.S .– Gambling , 40 the two cases to date in which a WTO panel or the Appellate Body has addressed the meaning of the public morals exception. Section IV reviews previous scholarship regarding the public morals exception. Section V presents a normative analysis of a morals exception to the WTO rules, based on socio-economic legal theory. Finally, Section VI concludes. I. Potential WTO Cases in Which the Public Morals Exception Might be Clarified In the next few years, the public morals exception is likely to be raised as a defense in a number of WTO cases, and in the panels and Appellate Body hearing these cases likely will be required to clarify both the “public component” and the “morals component” of this exception. At the same time, because the citizens of a nation theoretically can hold a moral belief that warrants the trade restriction in question and a member’s reliance on the exception for protectionist reasons usually can be ascertained by whether it restricts a “like” 41 domestic good or service, the range of inquiries relevant to the “morals component” of the exception is likely to be limited. 42 As some commentators have argued, a WTO member can implement a measure that violates its market access commitment to the other WTO members, even in the absence of a protectionist motivation. 43 However, the temptation to defend a trade barrier on an insincere moral objection would at least appear to be naturally self-limiting due to the difficulty any WTO member would principle [.]” Id. at 24. The human rights or cosmopolitan view of international law shares many of the theoretical bases of the natural law theory of law generally. See, e.g., Robert Fine, Cosmopolitanism 22-28, 56-58 (Routledge 2008). 39. Supra note 4. 40. Supra note 27. 41. Supra note 23. 42. In other words, when a WTO member claims that a particular trade barrier is justified under the public morals exception, application of the National Treatment Principle should reveal any protectionist motivation for the restriction. This was illustrated in U.S.–Gambling, supra note 27, which is discussed further below in this section of the article. 43. See, e.g., Kyle Bagwell, Petros C. Mavroidis & Robert W. Staiger, It’s A Question Of Market Access, 96:1 A.J.I.L. 56, 75-76 (2002). 3058-088-3pass-02_Wright-r03.indd 26 6/30/2010 12:01:58 PM
Censoring the Censors in the WTO 27 encounter in attempting to craft a specious moral objection without casting too wide an exclusionary net. For the sake of argument, assume that an EC nation that has not justified its bans on various genetically-modified foods on the ground that they pose a health hazard 44 reinstates those bans and then attempts to excuse them under the public morals exception. This EC nation likely would find it very difficult to articulate a moral belief that would justify its exclusion of the genetically-modified foods in question but not any other item that it might wish to allow its nationals to import or produce ( e.g. , a life-saving medication that contains a genetically modified ingredient). In other words, the difficulty of devising a sufficiently narrow but false moral objection to the entry of a foreign good or service would appear to outweigh the advantages of attempting to do so in most cases. 45 At the same time, a number of cases are likely to arise during the next few years regarding the “public component” of the public morals exception, as the definition of “public morals” adopted by the Appellate Body in U.S .– Gambling and set forth above does not clarify precisely “whose moral beliefs” a WTO member is entitled to protect or what evidence a WTO is required to produce to prove those people’s moral beliefs. In one manner or another, these cases are likely to present the three seminal questions stated in the introduction to this article. Moreover, it is highly likely that the U.S. will challenge a number of prohibited content laws in various countries. This is the case, because a number of WTO members maintain extensive censorship regimes 46 and the U.S. considers media goods and services to constitute its “comparative advantage” 47 in the global economy. 48 44. For example, the panel in EC—Measures Affecting the Approval and Marketing of Biotech Products, WT/DS292/R (adopted on November 21, 2006), concluded that France, Greece, Italy, Austria, Luxembourg, and Germany all maintained such bans. Id. at 4.2230, 4.570, and n.163. 45. It also is possible that a WTO member could enact a measure that banned a product such as paper towels, plastic bags, styrofoam cups, or any product with a “carbon footprint” larger than some stipulated maximum, purportedly because the product’s alleged propensity to cause global warming offends its public morals. However, such a ban would almost certainly be excused under either the “health and safety exception” (found in (b) of Art. XX of the GATT 1994) or the “exhaustible natural resources exception” (found in (g) of Art. XX of the GATT 1994) in any case. 46. See text accompanying infra notes 50-72. 47. The comparative advantage theory of international trade (first proposed by British economist David Ricardo is discussed further below, in Section V of this article. 48. Edwin Baker, An Economic Critique of Free Trade in Media Products, 8 N.C. L. Rev. 1357 (2000); Tech Law Journal, Tech Law Journal News (Mar. 11-15 2006), available at http://www.techlawjournal.com/home/newsbriefs/2006/03c.asp (accessed 3058-088-3pass-02_Wright-r03.indd 27 6/30/2010 12:01:58 PM
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