Censoring the Censors in the WTO - Southwestern Law School

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64 J. Int’l Media & Entertainment Law Vol. 3, No. 1 of this issue). 299 Marwell’s choices (b) and (c) are largely founded on a “human rights” or “cosmopolitan” view of international law, 300 while his choice (d) is largely founded on a “communitarian” view of international law. 301 Ultimately, Marwell concluded that his choice (d)—a unilateralist interpretation of the public morals clause—was the correct answer to this first question. 302 He stated that “[i]t is reasonable to assume that the basic purpose motivating the inclusion of the public morals clauses in GATT and GATS was to protect national autonomy on sensitive moral questions. . . .” 303 He also referenced the above-quoted statement of the U.S .– Gambling panel regarding how members should be granted the power to define their own moral standards as support for his conclusion. 304 However, Marwell himself did not further explore the nature of moral beliefs or tie the nature of such beliefs to the public morals exception. Then, in answer to his second question, he concluded that WTO members’ interests in regulating public morality would be properly balanced against the rights of other WTO members in trade liberalization so long as any WTO member defending a trade-restrictive measure under the public morals exception is required to produce substantial evidence of its asserted public morals concern 305 and furthermore is required to prove that its measure is the least trade-restrictive measure possible to protect its public morals concern and does not discriminate against providers of foreign goods and services. 306 The “least trade-restrictive requirement” is encompassed in the word “necessary” in the public morals exception 307 as well as the “chapeau language” of the public morals exception. 308 The “non-discrimination requirement,” in turn, is incorporated in the “chapeau language” of the public morals defense. 309 The chapeau language limits the public morals defense to a government 299. Id. at 819-24. 300. See supra note 290. 301. See supra note 290. 302. Id. at 824. 303. Id. at 821. 304. Id. at 824. 305. Id. at 824-26. 306. Id. at 826, 836. 307. China—Media Appellate Body Report, supra note 4, at 239-242. 308. Cf. Trade and Human Health and Safety 27 (George A. Bermann & Petros C. Mavroidis eds. 2006). 309. See GATT 1994, supra note 9, Art. XX; GATS, supra note 10, Art. XI. See also U.S.—Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R (Oct. 12, 1998), at 120. 3058-088-3pass-02_Wright-r03.indd 64 6/30/2010 12:02:01 PM
Censoring the Censors in the WTO 65 measure which is not “applied so as to constitute a means of arbitrary or unjustifiable discrimination between countries where like conditions prevail, or a disguised restriction on international trade . . .” 310 Marwell did not address the question of whether a WTO member relying on the public morals exception must prove that a majority of its citizens hold the moral belief in question, but he did indicate that a member’s moral beliefs need not be documented in a legislatively-enacted statute. In particular, he stated that WTO panels are entitled to consider any evidence submitted to it regarding a member’s moral beliefs, as well as any other information “ ‘from any relevant source,’ 311 including experts and ‘any individual or body which it deems appropriate’ 312 such as, for instance, religious or civil society organizations, public opinion firms, local government officials, and individual citizens.” 313 Likewise, he maintained that panels can consider a wide range of information regarding a member’s moral beliefs, including “historical practice, contemporary public opinion polls, results of political referenda, or statements of accredited religion leaders.” 314 While it is true that panels are entitled to consider information from any relevant source on any issue, Marwell does not address the fact that the types of media he mentions may be more likely than a legislatively-enacted statute to reflect the moral beliefs of only the author of that media or a small segment of that WTO member’s population. Given that his answer to the first question that he posed largely was based on his assertion that given that moral beliefs tend to be geographically localized and diverse from community to community 315 ( e.g. , a nation as well as a sub-group within a nation), it seems that at least a brief discussion of the inherent limitations of using such secondary sources of a people’s moral beliefs would have been in order. Marwell also did not explicitly consider whether a WTO member should be able to rely on the public morals exception to enact an outwardlydirected government measure (again, according to Charnovitz’ classification scheme, a measure that is targeted solely at the morals of the people of the exporting nation). An example of an outwardly-directed measure (sometimes referred to as a humanitarian measure) is an import ban on all goods and services from a particular nation on the ground 310. Id. 311. Marwell, supra note 290, at 825. 312. Id. at 825 (citing DSU, supra note 28, Art. 12). 313. Id. at 825. 314. Id. at 824-25. 315. Id. at 805. 3058-088-3pass-02_Wright-r03.indd 65 6/30/2010 12:02:01 PM
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