Censoring the Censors in the WTO - Southwestern Law School

More documents

Recommendations

Info

$S:\Externship Forms Revised May 2005\EXTERN POLICIES ...$

18 J. Int’l Media & Entertainment Law Vol. 3, No. 1 i. Flaws in the Neo-Classical Trade Theory ................. 89 ii. Flaws in the Classical Trade Theory ......................... 92 E. The WTO Rules Should Contain a Morals Exception that Recognizes Each WTO Member’s Right to Define and Protect its Public Morals Because this Right is a Fundamental Component of Each Member’s National Sovereignty ......................................... 96 F. In Order to Defend a Trade Measure Under a Morals Exception to theWTO Rules, a WTO Member Should be Required to Prove that the Moral Belief in Question is Held by a Majority of its Citizens, as Evidenced by those Citizens’ Articulated Moral Views Because Only Autonomous Human Minds Can Ever Discover, Devise, Adopt, or Hold any Moral Belief ..................................... 107 V. Conclusion .............................................................................. 118 Introduction On December 21, 2009, the Appellate Body of the World Trade Organization (WTO) issued its decision affirming the great majority of the panel’s conclusions and ruling in the U.S.’ favor in the case of China — Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products ( China — Media ). 4 Predictably, Hollywood media companies were elated with the Appellate Body’s decision, 5 and Chinese authorities expressed great disappointment regarding it. 6 This case indirectly concerned China’s comprehensive “prohibited content laws,” specifically 4. WT/DS363/AB/R (adopted on Dec. 21, 2009). The Appellate Body’s decision in this case hereinafter is specifically referred to as the “China—Media Appellate Body Report.” The panel report in this case, WT/DS363/R, is specifically referred to hereinafter as the “China—Media Panel Report.” As stated in the text, the case generally is hereinafter referred to as “China—Media” or the “China—Media case.” 5. Joe Flint, Hollywood’s Push to Open Up China Gets a Big Boost from the WTO, latimesblogs.latimes.com, available at http://latimesblogs.latimes.com/entertainment newsbuzz/2009/12/hollywoods-push-to-open-up-china-gets-a-big-boost-from-wto. html (accessed Dec. 23, 2009) (quoting the statement of Dan Glickman, Chairman and Chief Executive of the Motion Picture Association of America, that “[w]ith today’s rejection of China’s appeal, the WTO has taken a major step forward in leveling the playing field for America’s creative industries seeking to do business in China”). 6. Ian Johnson, WTO Ruling May Not Alter Media Sector in China, chinhdangvu. blogspot.com, Dec. 22, 2009, available at http://chinhdangvu.blogspot.com/2009/12/ wto-ruling-may-not-alter-media-sector.html (accessed Dec. 23, 2009) (noting that “China said it regretted the ruling” and “didn’t say if it would implement the ruling”). 3058-088-3pass-02_Wright-r03.indd 18 6/30/2010 12:01:58 PM
Censoring the Censors in the WTO 19 as they apply to foreign media products, such as feature films, home entertainment products, sound recordings, periodicals, newspapers, and books, and initially the case appeared to possess all the hallmarks of a Hollywood blockbuster itself. Media sources tended to portray the case as a “battle between free speech and political oppression” or a “clash between trade and morality,” casting the U.S. or China as the Virtuous Superhero and the other as the Evil Empire. 7 In short, it appeared to be a morality play about the meaning of morality in the global age. Such a culture clash 8 of epic proportions arguably is looming, as the next section of this article explains, but the reality of the China — Media case itself is more mundane. In this case, the U.S. did not directly challenge China’s claim that it is entitled to conduct pre-importation reviews of the content of foreign media items under the “public morals exception” provided in Article XX(a) of the General Agreement on Tariffs and Trade 1994 (the GATT 1994) 9 or a similar provision in other WTO agreements. 10 Rather, the U.S. argued that, even assuming 7. See, e.g., Bridges Weekly: WTO Rules Against Chinese Restrictions on Foreign Books, Movies, Music, International Centre for Trade & Sustainable Development, ictsd. org, Sept. 7, 2009, available at http://ictsd.org/i/trade-and-sustainable- developmentagenda/54208/ (accessed Dec. 17, 2009) [hereinafter “Bridges Weekly”]. 8. The phrase “culture clash” is most commonly associated with political scientist Samuel P. Huntington’s 1996 book The Clash Of Civilizations And The Remaking Of World Order (Simon & Schuster 1996). In these works, Huntington argued that international politics would be dominated by conflicts between cultures, rather than conflicts between nations per se, in the era of globalization. Id. at 321. In recent years, this theory has been “highly controversial . . . as former U.S. President George Bush referred to this theory in a number of speeches as justification for the U.S.’ military actions against various fundamentalist Islamic groups, such as Al Queda and the Taliban (in Afghanistan).” Claire Wright, Reconciling Cultural Diversity and Free Trade in the Digital Age: A Cultural Analysis of the International Trade in Content Items, 41 Akron L. Rev. 397, 478 (2008) [hereinafter “Wright, Reconciling Cultural Diversity and Free Trade”] (citing George W. Bush, President, Address to the Nation (Sept.11, 2006) (transcript available at http://www.whitehouse.gov/news/ releases/2006/09/20060911-3.html)). 9. General Agreement on Tariffs and Trade 1994, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, The Legal Texts: The Results Of The Uruguay Round Of Multilateral Trade Negotiations 179 (1999), 1867 U.T.S. 187, 33 I.L.M. 1153 (1994) [hereinafter “GATT 1994”]. Note that when paragraphs in the GATT 1994 are referred to, these paragraphs relate to the GATT 1994 itself. When Articles in the GATT 1994 are referred to, these articles relate to articles in the General Agreement on Tariffs and Trade 1947, Agreement on Tariffs and Trade, Oct. 30, 1947, 61 Stat. A-11, T.I.A.S. 1700, 55 U.N.T.S. 194 [hereinafter “GATT 1947], which was incorporated into the GATT 1994 per paragraph 1 of the GATT 1994. 10. The public morals exception is also found in a number of other WTO agreements, including Article XIV(a) of the General Agreement on Trade in Services, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1B, The Legal Texts: The Results Of The Uruguay Round Of Multilateral Trade Negotiations 284 (1999), 1869 U.N.T.S. 183, 33 I.L.M. 1167 (1994) 3058-088-3pass-02_Wright-r03.indd 19 6/30/2010 12:01:58 PM
Page 1: Censoring the Censors in the WTO: R
Page 5 and 6: Censoring the Censors in the WTO 21
Page 53 and 54:
Censoring the Censors in the WTO 69
Page 55 and 56:
Page 57 and 58:
Page 59 and 60:
Page 61 and 62:
Page 63 and 64:
Page 65 and 66:
Page 67 and 68:
Page 69 and 70:
Page 71 and 72:
Page 73 and 74:
Page 75 and 76:
Page 77 and 78:
Page 79 and 80:
Page 81 and 82:
Page 83 and 84:
Page 85 and 86:
Page 87 and 88:
Page 89 and 90:
Page 91 and 92:
Page 93 and 94:
Page 95 and 96:
Page 97 and 98:
Page 99 and 100:
Page 101 and 102:
Page 103 and 104:
show all

Censoring the Censors in the WTO - Southwestern Law School

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?