Censoring the Censors in the WTO - Southwestern Law School

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48 J. Int’l Media & Entertainment Law Vol. 3, No. 1 and their localities’ propensity to utilize their trade laws to effect social change in other countries, 175 WTO panels and the Appellate Body can expect that they will have to provide an answer to this question within the next few years. II. History of the Public Morals Exception The WTO Agreement 176 that was negotiated during the Uruguay Round of Multilateral Trade Negotiations (the Uruguay Round) 177 and established the WTO 178 is considered to be the successor agreement to the 1947 General Agreement on Tariffs and Trade (the GATT 1947), 179 180 which became the de facto international trade agreement in 1947 after the U.S. Congress failed to ratify Havana Charter establishing the International Trade Organization (ITO). 181 The WTO Agreement was signed by 128 nations in 1994, 182 and, on January 1, 1995, the WTO commenced operations. 183 The GATT 1994 (which consists of the GATT 1947, 184 together with various protocols, amendments, and understandings regarding the GATT 1947 that had been entered 175. See, e.g., Executive Order 13126, signed by President Clinton on June 12, 1999 (banning federal acquisitions of products produced with forced or indentured child labor, except from Mexico, Canada, and the signatories of the GPA, based on the uncertainty as to whether the North American Free Trade Agreement (NAFTA) and the GPA permitted such measures); Clif Burns, More States Get into the Sanctions Business, exportlaw.blog.com, Apr. 16, 2009, available at http://www.exportlawblog.com/ archives/490 (accessed Dec. 30, 2009) (discussing state restrictions on trade with other countries and reporting that an article in the Abu Dhabi daily The National stated that more than 20 states in the United States have passed laws, or have legislation pending, to require state pension funds to divest stocks of companies doing business in Iran). 176. WTO Agreement, infra note 422. 177. Id., Preamble, 4. 178. Id. Art. I. 179. GATT 1947, supra note 10. 180. Marrakesh Declaration of 15 Apr. 1994, 6, available at http://www.wto.org/ english/docs_e/legal_e/marrakesh_decl_e.htm (accessed Dec. 30, 2009); Final Act Embodying The Results Of The Uruguay Round Of Multilateral Trade Negotiations, Apr. 15, 1994, The Legal Texts: The Results Of The Uruguay Round Of Multilateral Trade Negotiations 2 (1999), 1867 U.N.T.S. 14, 33 I.L.M. 1143, Arts. 5-6 (1994) [hereinafter the “Final Act”]. 181. Robert E. Hudec, The GATT Legal System and World Trade Diplomacy 11-30 (Lexis Law Pub. 1990); see also From GATT to the WTO and Beyond Research Guide, ll.georgetown.edu, Jan. 2007, available at http://www.ll.georgetown. edu/guides/FromtheGATTtotheWTO.cfm (accessed Dec. 30, 2009). 182. GATT Members: The 128 Countries That Had Signed GATT by 1994, wto.org, available at http://www.wto.org/english/theWTO_e/gattmem_e.htm (accessed Dec. 30, 2009). 183. Final Act, supra note 180, at 3. 184. 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”]. 3058-088-3pass-02_Wright-r03.indd 48 6/30/2010 12:02:00 PM
Censoring the Censors in the WTO 49 into by the parties prior to the signing of the WTO Agreement 185 ), the General Agreement on Trade in Services (the GATS), 186 and the Agreement on Trade-Related Aspects of Intellectual Property Protection (the TRIPS Agreement) 187 are referred to as the three “pillar agreements” of the WTO system. 188 The GATT 1994 is the main agreement governing WTO members’ trade in goods, and it is supplemented by a number of other agreements, each of which addresses either a specific issue concerning the trade in goods or a specific type of good. 189 As their names suggest, the GATS regulates members’ trade in services 190 and the TRIPS Agreement governs the members’ obligations regarding the protection of foreigners’ intellectual property rights. 191 The economic rationale underlying the WTO free trade system is discussed in greater detail in Section V of this article, but, in general, the WTO rules restricting governments’ intervention in trade matters are intended to minimize consumers’ costs and accordingly maximize their wealth in each of the WTO member countries. 192 From the inception of the GATT 1947, however, Article XXI excused “any action which [a contracting party] considers necessary for the protection of its essential security interests taken in time of war or other emergency in international relations . . . [or which is taken] in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.” 193 In addition, Article XX exempted several other types of government measures. 194 In particular, paragraph (a) of Article XX of the GATT 1947 exempted any measure which a nation applied in a non-discriminatory manner and which was “necessary to protect public morals.” 195 185. The GATT 1994 consists of: (a) the provisions of the Agreement on Tariffs and Trade, Oct. 30, 1947, 61 Stat. A-11, T.I.A.S. 1700, 55 U.N.T.S. 194; (b) the provisions of legal instruments which entered into force under GATT 1947 before the date of entry into force of the WTO Agreement; (c) the Understandings on the interpretation of a number of GATT Articles, adopted at the end of the Uruguay Round; and (d) the Marrakesh Protocol to GATT 1994. GATT 1994, 1. 186. GATS, supra note 10. 187. TRIPS Agreement, supra note 10. 188. See, e.g., TRIPS: FAQs, wto.org, available at http://www.wto.org/english/tratop_e/ trips_e/tripfq_e.htm (accessed Dec. 30, 2009). 189. See, e.g., Understanding The WTO: The Agreements, Overview: A Navigational Guide, wto.org, available at http://www.wto.org/english/thewto_e/whatis_e/ tif_e/agrm1_e.htm (accessed Dec. 30, 2009). 190. GATS, supra note 10, at Art. 1, 1. 191. TRIPS Agreement, supra note 10, at Art. 1, 3. 192. See text accompanying infra notes 375-612. 193. GATT 1994, supra note 9, at Art. XXI. 194. Id., Art. XX. 195. Id., Art. XX, (a). 3058-088-3pass-02_Wright-r03.indd 49 6/30/2010 12:02:00 PM
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