Censoring the Censors in the WTO - Southwestern Law School

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66 J. Int’l Media & Entertainment Law Vol. 3, No. 1 that it permits slavery or denies or restricts women’s political rights. However, Marwell discusses such measures and never indicates that the WTO members should be prohibited from implementing them, and therefore it can safely be assumed that he endorsed including such measures in his proposed interpretation of the public morals exception. Marwell’s failure to address this last question is confusing, as it would seem that such measures permit a member to impose its moral views on the people of another nation, and, if this is the case, Marwell’s apparent approval of such measures would appear to be inconsistent with his conclusion that each WTO member, in its sole and absolute discretion, is entitled to determine its own moral beliefs on an on-going basis. 316 In his article, Marwell explained some of the denser aspects of the panel and Appellate Body’s rulings in U.S .– Gambling . 317 In addition, he discussed a number of relevant factors that are relevant in an analysis of the proper parameters of the public morals exception to the WTO rules. Arguably, he even arrived at the correct conclusion to both of the major questions that he posed. At the same time, he relied very heavily on the panel and Appellate Body’s rulings in U.S .– Gambling to answer the very questions that he maintained they had left unanswered, and, in general, his article would have benefited from a theoretical perspective that justified his conclusions, especially those that appear to be inconsistent. Finally, in his own 2008 note Free Trade and the Protection of Public Morals: An Analysis of the Newly Emerging Public Morals Clause Doctrine , 318 Mark Wu in general accepted Marwell’s three main categories for interpretations of the public morals exception—originalist, 319 unilateralist, 320 and universalist 321 —as well as Marwell’s premise that the exception should be interpreted so as to limit WTO members’ protectionist abuse of it. 322 He also utilized Charnovitz’ dichotomy of inwardly-directed government measures (which, again, are measures directed at the morals of the people of the importing nation, and which Wu referred to as a “Type I measures”) and outwardly-directed govern- 316. Id. at 824. 317. Supra note 27. 318. Mark Wu, Free Trade and the Protection of Public Morals: An Analysis of the Newly Emerging Public Morals Clause Doctrine, 33 Yale J. Int’l L. 215 (Winter 2008) [hereinafter “Wu”]. 319. Id. at 218, 237-38, 244. 320. Id. at 233, 238, 240-41, 248. 321. Id. at 231, 232-33, 244. 322. Id. at 215-16, 232 (citing Marwell, supra note 290, at 824, 826), 237-38, 241, 243-44, 248. 3058-088-3pass-02_Wright-r03.indd 66 6/30/2010 12:02:01 PM
Censoring the Censors in the WTO 67 ment measures (which, again, are measures directed at the morals of the people of the exporting nation, and which Wu broke down into “Type II measures” and “Type III measures”). A Type II measure, in Wu’s terminology, is an outwardly-directed measure that is designed to protect people in the exporting nation who are directly involved in the good or service in question against a practice that the people of the importing nation find morally offensive. 323 An import ban on a product manufactured by child laborers would be an example of a Type II measure, Wu stated. On the other hand, a Type III measure, according to Wu, is an outwardly directed measure that is designed to protect the people of the exporting nation against a practice that the people of the importing nation find morally offensive but which is not directly involved in the good or service in question. 324 Wu noted that an example of a Type III measure would be an import ban on all products from the Sudan on account of its violation of human rights in the Darfur region. 325 As is discussed further below, Wu also set forth a fourth interpretation, which he labeled the “transnationalist interpretation,” 326 and he critiqued all four of these interpretations, as well as Marwell’s interpretation, before he set forth his own interpretation of the public morals exception. To begin with, Wu stated that a strict originalist interpretation— limiting the moral beliefs protected under the public morals exception to those that the 23 original GATT 1947 contracting parties accepted as such—possessed the advantage that a WTO member’s moral claim could be tested against a strict standard, thereby limiting a WTO member’s ability to utilize the exception for protectionist motives. 327 Ultimately, however, he concluded, however, that a strict originalist interpretation must be rejected, because it possesses several disadvantages, chief among them, according to Wu, being the fact that it is inconsistent with the fact that moral beliefs “vary in time and context, a fact that U.S .– Gambling itself recognized.” 328 On the other hand, he argued, a strict universalist interpretation—limiting the moral beliefs protected under the public morals exception to those that are universally or near universally held by people around the world 329 —also must be rejected 323. Wu, supra note 318, at 235. 324. Id. at 235. 325. Id. 326. Id. at 240-42. 327. Id. at 237. 328. Id. 329. As indicated in connection with Marwell’s article, a universalist interpretation of the exception is largely founded on a “human rights” or “cosmopolitan” view of 3058-088-3pass-02_Wright-r03.indd 67 6/30/2010 12:02:01 PM
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