Censoring the Censors in the WTO - Southwestern Law School

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62 J. Int’l Media & Entertainment Law Vol. 3, No. 1 After the publication of Charnovitz’ article in 1998 and before the publication of the Appellate Body’s ruling in U.S.–Gambling , 286 a few other scholars published papers regarding the meaning of the public morals exception. 287 Typically, they likewise analyzed the public morals exception utilizing the treaty interpretation rules of the Vienna Convention. 288 Then, after the publication of the Appellate Body’s decision in U.S .– Gambling , a number of scholars published papers specifically attempting to explain or critique the panel and/or Appellate Body’s ruling(s) in that case. 289 A couple of the more comprehensive such works are discussed here in order to convey the types of analyses employed by previous authors as well as these scholars’ general conclusions regarding the proper parameters of a morals exception to the WTO rules. For example, in 2006, Jeremy Marwell published his note Trade and Morality: The WTO Public Morals Exception after Gambling . 290 As the title of his paper suggests, Marwell critiqued the decisions of the panel and the Appellate Body in U.S .– Gambling . 291 Rather than analyze the exception in accordance with the Vienna Convention rules of treaty interpretation 292 as the panel and Appellate Body had done, however, he noted his dissatisfaction with the Appellate Body’s implicit suggestion “that States invoking a public morals defense will be expected to present evidence of similar practice by other states.” 293 By this, Marwell meant that the panel in U.S .– Gambling , in addition to ascertaining the U.S. Congress had been motivated by moral concerns in enacting various bans on on-line gambling services, had indicated that numerous countries around the world throughout history have likewise considered gambling to be a moral concern and the Appellate Body had affirmed the panel’s decision without suggesting that the panel’s reference to other countries’ treatment of gambling was irrelevant. 294 In this author’s opinion, there is no evidence that the panel, in referring to other countries’ treatment of gambling services, meant to suggest that these 286. U.S.–Gambling Appellate Body Report, supra note 27. 287. See, e.g., Christoph T. Feddersen, Focusing on Substantive Law in International Economic Relations: The Public Morals of GATT’s Article XX(a) and “Convention” Rules of Interpretation, 7 Minn. J. Global Trade 75 (1998). 288. Id. at 88-121. 289. See, e.g., Miguel Gonzalez, Trade and Morality: Preserving “Public Morals” WithoutSacrificing the Global Economy, 39 Vand. J. Transnat’l L. 939 (2006). 290. Jeremy C. Marwell, Note, Trade and Morality: The WTO Public Morals Exception After Gambling, 81 N.Y.U. L. Rev. 802 (2006) [hereinafter “Marwell”]. 291. U.S.–Gambling, supra note 27. 292. Supra note 230. 293. Marwell, supra note 290, at 818. 294. Id. 3058-088-3pass-02_Wright-r03.indd 62 6/30/2010 12:02:01 PM
Censoring the Censors in the WTO 63 other countries’ moral practices could be determinative on the issue of whether gambling was a moral issue in the U.S. This especially appears to be the case, in light of the panel’s statement that “[m]embers should be given some scope to define and apply for themselves the concept of ‘public morals’ . . . in their respective territories, according to their own systems and scales of values. 295 Marwell also indicated his disappointment that the panel and Appellate Body had only partially answered the two main questions regarding the public morals exception that the U.S .– Gambling case had raised. 296 According to Marwell, these two questions were: First, how should an international tribunal assess a country’s assertion that an issue is legitimately a matter of “public morals,” given that such interests are likely to be strongly held, geographically localized, and diverse across political boundaries Second, assuming a particular regulation is legitimately related to public morality, on what basis can and should an international tribunal such as the WTO Dispute Settlement Body balance interests in regulating public morality against the rights of other Member States in trade liberalization 297 Marwell then set about answering these questions himself, and as he did so he repeatedly emphasized that, as the overall goal of the WTO rules is to discourage members from enacting protectionist measures (measures designed to protect to a domestic industry from foreign competition), the exception, if possible, should be interpreted so as to discourage protectionist abuse of the exception. 298 With regard to the first question of how an international tribunal, such as the WTO, should assess a country’s claim that a particular good or service implicates its “public morals,” Marwell posited that such a claim could be tested against (a) the standards of right and wrong conduct that the 23 countries that negotiated and signed the GATT 1947 recognized as such (which Marwell referred to as the “originalist interpretation” on this issue); (b) the standards of right and wrong conduct to which the great majority of nations subscribe (which Marwell referred to as the “universalist interpretation” on this issue); (c) the standards or right and wrong conduct to which a large number of similarly situated nations subscribe (which Marwell referred to as the “moral majority or multiplicity interpretation” of this issue); or (d) the standards of right and wrong conduct to which the country in question alone subscribes (which Marwell referred to as the “unilateralist interpretation” 295. Id. 296. Id. at 805-06. 297. Id. at 805. 298. See, e.g., id. at 805-06, 826. 3058-088-3pass-02_Wright-r03.indd 63 6/30/2010 12:02:01 PM
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