Censoring the Censors in the WTO - Southwestern Law School

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58 J. Int’l Media & Entertainment Law Vol. 3, No. 1 these statements could be interpreted to mean that a WTO member (if challenged on this point) must demonstrate that a majority of its citizens actually ascribe to the moral belief being asserted by a WTO member relying on the public morals exception to justify a violation of the WTO rules. Strictly from a linguistic perspective, the panel’s statements don’t have to be extended too far to arrive at such a “majority support requirement.” For example, the Oxford English Dictionary (which the Appellate Body traditionally relies on to determine the ordinary meaning of a word or phrase in a WTO agreement) 263 defines the word “prevailing” to mean “As they exist” or “Which are predominant,” 264 and it furthermore defines the word “predominant” to mean “(1) Having supremacy or ascendancy over others; predominating’; or (2) Constituting the main or strongest element; prevailing.” 265 At the same time, it must be conceded that the above-quoted statements of the panel in U.S .– Gambling technically were dicta, as Antigua in that case had not argued that the U.S. state and federal laws prohibiting on-line gambling were not supported by a majority of U.S. or state citizens, as applicable. Accordingly, the Appellate Body in a future case 263. See, e.g., James Bacchus, Appellators: The Quest for the Meaning of And/Or (expanded from remarks made at the annual luncheon of the Advisory Centre on WTO Law in Bellevue, Switzerland, at 12 (June 1, 2005), available at http://www.worldtradelaw.net/articles/bacchusappellators.pdf (accessed Dec. 31, 2009) (noting that “so often has the Appellate Body gone to the Shorter Oxford English Dictionary to seek the meaning of words that some have suggested that the Members of the Appellate Body may see the Shorter Oxford English Dictionary as one of the ‘covered agreements’ of the WTO treaty”). The Appellate Body, itself, however, has cautioned against relying too heavily on dictionary definitions of words. Id. at 12, n.33 (citing See United States– Continued Dumping and Subsidy Offset Act of 2000, WT/DS 217/AB/R (Jan. 27, 2003), 248, stating that “dictionaries are important guides to, not dispositive statements of, definitions of words appearing in agreements and legal documents.” See also United States—Final Counteracting Duty Determination with Respect to Certain Softwood Lumber from Canada, WT/DS 257/AB/R/ (Feb. 17, 2004), 58-59). 264. “Prevailing.” II New Shorter Oxford Dictionary 2347 (Lesley Brown ed. Clarendon Press 1993) (a definition which was cited, for example, by the panel in Canada— Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada, WT/DS257/R (adopted on Feb. 17, 2004, as modified by the Appellate Body report), 7.50, to clarify the phrase “prevailing market conditions” in Article 14 (d) of the WTO Agreement on Subsidies and Countervailing Measures (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 275 (1999), 1867 U.N.T.S. 14 [not reproduced in I.L.M.] [hereinafter “SCM Agreement”]). 265. See, e.g., Sit Kwok Keung vs. Commissioner of Inland Revenue, Hong Kong Special Administrative Region, Court of First Instance, High Court Inland Rev. Appeal No. 1 of 2001, High Court Action File 644/2001, at 5, 15, available at http://legalref.judiciary.gov.hk/lrs/common/ju/ju_frame.jspcurrcount=0&changed_lan=&QS=&FN=& AH=&currpage=&DIS=22958 (accessed Dec. 31, 2009) (citing The New Shorter Oxford English Dictionary (1993)). 3058-088-3pass-02_Wright-r03.indd 58 6/30/2010 12:02:01 PM
Censoring the Censors in the WTO 59 could disavow the above-mentioned statements of the panel and explain that it hadn’t addressed those statements in U.S .– Gambling itself simply because those statements were not relevant to its resolution of the legal issues raised by the parties on appeal. As indicated in the introduction to this article, the Appellate Body has just issued its decision 266 affirming the great majority of the panel’s findings in the China — Media case. 267 The U.S. initiated this case against China in April of 2007, primarily alleging that a number of Chinese measures violated China’s GATS commitments to liberalize its “trading service” and “distribution service” industries, 268 and the specific products at issue in the case were audio-visual items, including feature films, videos, sound recordings, and publications ( e.g. , books, magazines, newspapers, and electronic publications). 269 The U.S. also claimed that, to the extent that any of the Chinese measures actually prohibits or restricts entry of a product, that measures also violates China’s commitment not to impose quantitative restrictions, as set forth in Article XI of the GATT 1994 (with the exception of certain items identified in China’s Protocol of Accession to the WTO). 270 However, as noted above, the U.S. in this case did not directly challenge China’s asserted right to inspect the content of foreign media items before those items enter its territory to ensure that this content does not offend the member’s public morals. 271 China, in turn, denied the U.S.’ allegations, and it furthermore argued that its restrictions in any case were justified under the public morals exception to the WTO rules (specifically, Article XX (a) of the GATT 1994) because they furthered China’s pre-importation review of the U.S. media products at issue. 272 As stated above, in its ruling in China — Media , the panel concluded that, with respect to the great majority of the restrictions on trading (importation) and distribution rights challenged by the U.S., China had failed to establish that they were “necessary” to protect China’s public morals as the products in question had already been approved by 266. China—Media Appellate Body Report, supra note 4. 267. China—Media Panel Report, supra note 4. 268. See World Trade Organization, Dispute Settlement, http://www.wto.org/english/ tratop_e/dispu_e/cases_e/ds363_e.htm (accessed Feb. 18, 2009); China—Media Appellate Body Report, supra note 4, at 1-3. 269. See World Trade Organization, Dispute Settlement, http://www.wto.org/english/ tratop_e/dispu_e/cases_e/ds363_e.htm (accessed Feb. 18, 2009). 270. Id. 271. Text accompanying supra notes 268-70. 272. China—Media Appellate Body Report, supra note 4, at 7. 3058-088-3pass-02_Wright-r03.indd 59 6/30/2010 12:02:01 PM
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