Censoring the Censors in the WTO - Southwestern Law School

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46 J. Int’l Media & Entertainment Law Vol. 3, No. 1 the country. 157 However, their right to vote on any matter, while technically acknowledged, is effectively denied. 158 If a WTO member initiated a case against Saudi Arabia in the WTO, claiming that Saudi Arabia’s many import bans—on items such as nylons, 159 educational media items designed specifically for women, 160 cosmetics, 161 and various foreign movies 162 —violate the prohibition against quantitative restrictions in Article XI of the GATT 1994, Saudi Arabia almost certainly would attempt to justify the bans under the public morals exception in Article XX (a) of the GATT 1994. If Saudi Arabia, in order to establish its defense under this exception, were required to prove that a majority of its citizens, male and female, is morally offended by such products, it could find it difficult to do so, 163 given that women constitute 45.87% of the population, 164 and certainly the majority of consumers, in Saudi Arabia today. 165 With respect to the third of these questions, in 1996, the Massachusetts legislature enacted a law prohibiting state agencies from purchasing goods or services from any company that did business with Myanmar (formerly Burma), with few exceptions. 166 According to pro- 157. Id. 158. Women in Saudi Arabia have legally been granted the right to vote. However, in recent elections, election organizers, perhaps at the behest of some government ministers, have claimed that it still isn’t technically possible for women to vote on account of the need to segregate men and women in public (women are not permitted to be in the presence of a man who is not a relative). In addition, women are not permitted to drive or travel anywhere alone without a man’s permission, so men have been able to effectively prevent women from exercising their right to vote in any case. Christine Lagario, No Women allowed in Saudi Vote, cbsnews.com, Feb. 4, 2005, available at http://www.cbsnews.com/stories/2005/02/04/eveningnews/main671873. shtml (accessed Dec. 21, 2009); Saudi: Why We Punished Rape Victim, CNN, Nov. 20, 2007, available at http://edition.cnn.com/2007/WORLD/meast/11/20/saudi.rape.vic tim/index.html (accessed Dec. 21, 2009). 159. John H. Donboli U Farnaz Kashefi, Doing Business in the Middle East: A Primer for U.S. Companies, 38 Cornell Int’l L.J. 413, 434 (2005). 160. Id. 161. Id. 162. Id. 163. This assumes that the Saudi measures at issue are not otherwise excused under Saudi Arabia’s protocol of accession to the WTO. See Member Information: Saudi Arabia, wto.org, available at http://www.wto.org/english/theWTO_e/countries_e/saudi_ arabia_e.htm (accessed Dec. 30, 1009). 164. The Cia World Factbook 2009, Central Intelligence Agency (Skyhorse Publ’g 2008). 165. Caryle Murphy, Why, Despite a Head-to-toe Coverage Rule, Saudi Women Must Still Buy Their Underwear from a Man, globalpost.com, Mar. 16, 2009, available at http://www.globalpost.com/dispatch/saudi-arabia/090313/your-shoe-size-maam-idjudge-you-c-cup (accessed Dec. 30, 2009). 166. An Act Regulating State Contracts with Companies Doing Business with or in Burma (Myanmar), 1996 Mass. Acts 239, ch.130 (codified at Mass. Gen. Laws §§ 7:22G-7:22M, 40F1/2 (1997)). 3058-088-3pass-02_Wright-r03.indd 46 6/30/2010 12:02:00 PM
Censoring the Censors in the WTO 47 ponents of the law, which was widely referred to as the “Massachusetts Burma Law,” 167 its purpose was to demonstrate Massachusetts’ support for pro-democracy groups in Myanmar and encourage the restoration of democracy there. 168 As the U.S. had committed Massachusetts to complying with the Agreement on Government Procurement (the GPA), 169 the EC and Japan filed suit against the U.S. in the WTO, claiming that the Massachusetts Burma Law constituted a violation by the U.S. of commitments made to the EC and Japan under Articles VIII (b), X, and XIII of the GPA and no exception in the GPA addressed Massachusetts’ concern. 170 Article VIII (b) of the GPA specifically states that “any conditions for participation in tendering procedures shall be limited to those which are essential to ensure the firm’s capability to fulfil the contract in question.” 171 As Article XXIII of the GPA also provides a public morals exception to the commitments made by signatories to the GPA, 172 this dispute proceeding raised the question of whether a WTO member’s “humanitarian concern” for the people of another WTO member can justify the former member’s ban or limit on a product or service from the latter member under the public morals exception to the WTO rules, when people in the former member don’t morally object to the product or service being restricted. After the U.S. Supreme Court struck down the Massachusetts Burma law on the ground that federal sanctions legislation regarding Myanmar preempted it, 173 the EC and Japan allowed their request for the establishment of a panel in the WTO proceeding to lapse. 174 Thus, the question of whether “humanitarian concerns” are encompassed with public morals exception to the WTO rules remains, and, given nations’ 167. See, e.g., International Law in Brief (Nov. 16-27, 1998): Judicial Decisions, National Foreign Trade Council v. Baker, No. 97 12042 (D. Mass. Nov. 4, 1998), asil. org, available at http://www.asil.org/ilib0111.cfm (accessed Dec. 30, 2009). 168. Dan Beeton & Ted Hobart, What is the Massachusetts Law and Does It Matter, peaceworkmagazine.org, available at http://www.peaceworkmagazine.org/pwork/ 0300/0316.htm (accessed Dec. 30, 2009). 169. Note that the U.S. had committed that most, if not all, Massachusetts government entities would comply with the requirements of the GPA. See U.S. Schedule of Commitments under the GPA, App. 1, Anx. 2 (“Sub-Central Government Entities which Procure in Accordance With the Provisions of this Agreement”), at 3, available at http:// www.wto.org/english/tratop_e/gproc_e/usa2.doc (accessed Dec. 24, 2009). 170. See, e.g., U.S.—Measure Affecting Government Procurement, WT/DS88, available at http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds88_e.htm (accessed Dec. 21, 2009) [hereinafter “U.S.—Burma”]. 171. GPA, supra note 10, Art. VIII (b). 172. Id. Art. XXIII. 173. Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000). 174. U.S.—Burma, supra note 170. 3058-088-3pass-02_Wright-r03.indd 47 6/30/2010 12:02:00 PM
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