Censoring the Censors in the WTO - Southwestern Law School

24 J. Int’l Media & Entertainment Law Vol. 3, No. 1
This article addresses the normative question of the proper scope of a
morals exception to the WTO rules from the perspective of socioeconomic
legal theory 29 and this analysis concludes that each of the
above-stated three questions is answered in the negative. It is important
to emphasize that this conclusion does not require each WTO member to
adopt a liberal democratic form of government. Such a requirement would
contravene not only the jus cogens principle of the self- determination
of peoples 30 but the rationale for inclusion of a morals exception in the
WTO agreements in the first place. If a WTO member’s form of government
makes it difficult or impossible for it to rely on the public morals
exception, this is a situation which the member alone has chosen. Moreover,
WTO members with liberal democratic forms of government should
not assume that their form of government automatically means that each
law enacted by that government’s legislature is supported by a majority
of the people. 31 In other words, if the public morals exception to the
WTO rules were to be interpreted or devised as suggested in this article,
each appeal. Id. at Art. 17, 1. Each person may be reappointed to the Appellate Body
once. Id. at Art. 17, 2.
29. See text accompanying infra notes 375-92.
30. Jus cogens (Latin for “compelling law”) refers to a peremptory norm of general
international law, which “is a norm accepted and recognized by the international
community of States as a whole as a norm from which no derogation is permitted and
which can be modified only by a subsequent norm of general international law having
the same character.” Vienna Convention on the Law of Treaties, Art. 53 (entitled “Treaties
conflicting with a peremptory norm of general international law (‘jus cogens’)”),
May 23, 1969, 1155 U.N.T.S. 331, 8 Int’l Legal Materials 679 (1969). Even “[a] treaty
is void if, at the time of its conclusion, it conflicts with a peremptory norm of general
international law.” Id.
31. Public choice theory “appl[ies] scientific economic methods to the “public choice
behavior” of voters, party leaders, and other politicians, lobbyists, and bureaucrats.”
James Buchanan Center for Political Economy, About Public Choice Economics, available
at www.gmu.edu/jbc/aboutpubchoic.html (accessed on Aug. 28, 2007). In general,
public choice theory maintains “that markets are imperfect, but that alternative institutions
(i.e., government) may also have defects.” Id. In particular, James Buchanan’s
public choice theory helped demonstrate that an elected official in a liberal democratic
government might choose to promote the interests of just a few individuals or groups
that appear likely to be able to assist him or her be reelected. A good example of how
lobbyists can disproportionately influence legislation in a liberal democratic government
is the fact that, during the fall of 2009, both Democratic and Republican members
of the U.S. Congress, when discussing a bill proposing the adoption of a national health
care system, inadvertently argued “debate points” on the floor of the U.S. Congress that
had been prepared by Genentech, one of the largest biotechnology companies in the
world. Lawmakers’ health care speeches penned by Genentech lobbyists, San Diego
Union Trib., Nov. 15, 2009, at A8 (“In an interview, Rep. Bill Pascrell Jr., D-N.J., said:
‘I regret that the language was the same. I did not know it was.”). Another example of
the influence of private interest groups’ influence on the development of public policy
in the U.S. was revealed in a Department of Health and Human Services study of 250
outside experts relied upon in 2007 by the Centers for Disease Control and Prevention
(the CDC), the U.S. Government’s top public health agency. This study concluded that
almost none of these 250 outside experts had “properly or completely filled out forms
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