Censoring the Censors in the WTO - Southwestern Law School

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60 J. Int’l Media & Entertainment Law Vol. 3, No. 1 Chinese authorities as being consistent with China’s public morals. 273 According to the panel, China had not proven that the Chinese Government or Chinese-owned companies needed to import and distribute censor-approved U.S. media items in order to protect China’s public morals. 274 Of course, given that the items in question had already been approved for entry in China’s pre-importation content review program, the issue of whether the majority of China’ people actually support China’s the relevant prohibited content laws was not before the panel. On December 21, 2009, the Appellate Body ruled decisively in the U.S.’ favor in this case, affirming the great majority of the panel’s findings in the U.S.’ favor and reversing one of the few findings of the panel in China’s favor. 275 In any case, as indicated above, within the next few years, the Dispute Settlement Body of the WTO likely will be called upon to clarify at least clarify the meaning of the public morals exception in future cases, and these cases are likely to be highly controversial. After all, the WTO rules themselves do not directly concern or prohibit members’ suppression of political dissent or restriction of free speech 276 and a number of WTO members today 277 possess non-democratic forms of government. III. Previous Scholarship Regarding the Public Morals Exception Stephen Charnovitz’ article The Moral Exception in Trade Policy , 278 which was discussed above, was the first major article to address the meaning of the public morals exception to the GATT /WTO rules. In 273. China—Media Panel Report, supra note 4, 8.1-8.4 passim. 274. Id. 275. U.S.—Media Appellate Body Report, supra note 4, at 412–17. Specifically, the Appellate Body reversed the panel’s finding (set forth in paragraph 7.836 of the panel’s report) that the State plan requirement in Article 42 of the Publications Regulation, which restricted the quantity, structure, and distribution of importation entities, is “apt to make a material contribution to the protection of public morals and that, in the absence of a reasonably available alternative, it can be characterized as ‘necessary’ to protect public morals in China.” Id. 415 (b) (iii). 276. See, e,g., Thomas Cottier, The Legitimacy of WTO Law, Swiss National Centre of Competence in Research, NCCR Trade Working Paper 2008/19, Nov. 2008, at 16, available at http://wti.nccr-trade.org/images/stories/publications/IP2/The_Legitimacy_ of_WTO_Law_cottier_final%200808.pdf (accessed Dec. 31.2009) (commenting that “WTO rules . . . are not designed to steer domestic processes of distributive justice. This is partly due to the limits of international law, respecting all forms of government alike.”). 277. See list of 153 current members of the WTO. Understanding the WTO: The Organization, Members and Observers, wto.org, available at http://www.wto.org/english/ thewto_e/whatis_e/tif_e/org6_e.htm (accessed Dec. 31, 2009). 278. Charnovitz, supra note 202. 3058-088-3pass-02_Wright-r03.indd 60 6/30/2010 12:02:01 PM
Censoring the Censors in the WTO 61 addressing the scope of this exception, he essentially interpreted the exception in accordance with the above-discussed Vienna Convention rules. 279 However, he extended his analysis of the travaux preparatoire or “negotiating history” of the exception itself during 1945–1947 to encompass the negotiating history of morals exceptions contained in earlier trade and commercial treaties. 280 As indicated above, he presented a very thorough and insightful history of both the public morals exception in the GATT 1947 and the morals exceptions contained in these earlier treaties, and all subsequent scholars addressing the morals exception to a free trade regime have benefited greatly from his research. For example, many of the examples of products barred from entry by various nations prior to 1947, as well as examples of “morals exception language” incorporated in earlier treaties, discussed in Section III of this article were first discussed in Charnovitz’ article. In addition, in his article, Charnovitz provided a very useful distinction between a government measure used to protect the morals of the people in the importing nation and a government measure used to protect the morals of the people in the exporting nation. 281 He referred to the former as an “inwardly-directed measure” and the latter as an “outwardly-directed measure.” 282 According to his classification scheme, a measure banning pornographic images on the ground that they endanger the morals of the people in the importing nation is an example of an inwardly-directed measure while a measure banning imports of a particular product from a particular nation on the ground that it is produced in an “unethical” or “inhumane” manner is an example of an outwardly-directed measure. 283 Charnovitz conceded, however, that some measures do not fit neatly into one category or the other. 284 By way of example, he noted that an import ban on products that have been produced by indentured children could be an “inwardly-directed measure” and/or an “outwardly-directed measure,” depending on whether the importing nation’s aim in enacting was to protect the morals of the people in the importing nation, the morals of the people in the exporting nation, or both. 285 Still, despite this limitation, his classification scheme greatly facilitates the analysis of a morals exception to a free trade system. 279. Id. at 699–718. 280. Id. at 705-18. 281. Id. at 695. 282. Id. 283. Id. at 695-97. 284. Id. at 695. 285. Id. 3058-088-3pass-02_Wright-r03.indd 61 6/30/2010 12:02:01 PM
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