Censoring the Censors in the WTO - Southwestern Law School

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54 J. Int’l Media & Entertainment Law Vol. 3, No. 1 services, as set forth in the U.S.’ Schedule of Specific Commitments under the GATS. 227 Turning to the U.S.’ claim that this violation was excused under Article XIV (a) of the GATS, the panel next indicated that the public morals exception in Article XIV (a) of the GATS (with the exclusion of the reference to public order) also existed in Article XX (a) of the GATT 1994. 228 It then followed a standard treaty interpretation analysis of this exception 229 in accordance with the treaty interpretation rules established in the Vienna Convention on the Law of Treaties (the Vienna Convention). 230 Articles 31 and 32, inter alia , of the Vienna Convention provide that Article 31 General rule of interpretation 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 231 . . . Article 32 Supplementary means of interpretation Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable. 232 As is customary in WTO cases, the panel consulted the Shorter Oxford English Dictionary in order to ascertain the ordinary meaning of the terms “public morals” and “public order.” 233 First, the panel pointed out that the word “public” is defined therein as “Of or pertaining to the people as a whole; belonging to, affecting, or concerning the community or nation.” 234 Given this definition, the panel noted (almost apologetically) that it was its belief “that a measure that is sought to be justified 227. Id. at 6.454. 228. Id. at 6.460. 229. Id. at 6.459. 230. Vienna Convention on the Law of Treaties, Arts. 31-32, 23 May 1969, 1155 U.N.T.S. 331, 8 ILM 679 (1969). 231. Id. at Art. 31, 1. 232. Id., at Art. 32. 233. Id. at 6.463. 234. Id. at 6.463 (citing The Shorter English Dictionary, 2002). 3058-088-3pass-02_Wright-r03.indd 54 6/30/2010 12:02:00 PM
Censoring the Censors in the WTO 55 under Article XIV (a) must be aimed at protecting the interests of the people within a community or nation as a whole.” 235 It then stated that the word “morals” was defined in the Shorter Oxford English Dictionary as “[. . .] habits of life with regard to right and wrong conduct.” 236 Accordingly, it concluded that the ordinary meaning of the term “public morals” in the public morals exception to the GATS (and the WTO rules more generally) is “standards of right and wrong conduct maintained by or on behalf of a community or nation.” 237 The panel next indicated that the most appropriate definition of the word “order” offered in the Shorter Oxford English Dictionary is “A condition in which the laws regulating the public conduct of members of a community are maintained and observed; the rule of law or constituted authority; absence of violence or violent crimes.” 238 The panel then elaborated that, in its view, the term “public order” in Article XIV (a) of the GATS refers to “the preservation of the fundamental interests of a society, as reflected in public policy and law[,]. . . . [and] [t]hese fundamental interests can relate, inter alia , to standards of law, security, and morality.” 239 The panel also clarified that, while it considered “public morals” and “public order” to be “two distinct concepts in Article XIV (a) of the GATS [,] . . . both concepts “seek to protect largely similar values [.]” 240 Moreover, it noted, “the content of these concepts [of public morals and public order] for Members can vary in time and space, depending upon a range of factors, including prevailing social, cultural, ethical and religious values.” 241 As indicated above, the Vienna Convention treaty interpretation rules provide that, if the ordinary meaning of a treaty provision is neither ambiguous nor absurd, that ordinary meaning should be followed, 242 and, for this reason, the panel determined that the above-stated ordinary meanings of the terms “public morals” and “public order” should be followed in this case. 243 In its decision, the panel did not further address the “public aspect” of its definition of “public morals” to any greater extent. It simply noted that gambling and betting services have long 235. Id. at 6.463. 236. Id. at 6.464 (citing The Shorter English Dictionary, 2002). 237. Id. at 6.465. 238. Id. at 6.466. 239. Id. at 6.467. 240. Id. at 6.468. 241. Id. at 6.461. 242. Supra notes 230-232. 243. U.S.–Gambling Panel Report, supra note 27, at 6.465-6.467. 3058-088-3pass-02_Wright-r03.indd 55 6/30/2010 12:02:00 PM
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