To each his own: the case for unilateral determination of public morality under article XX(A) of the GATT.

• Author: Nachmani, Tamara S.

ABSTRACT I INTRODUCTION II BACKGROUND TO COMPETING INTERPRETIVE THEORIES Competing Interpretive Theories and the Issue of Human Rights III BRIEF HISTORY OF ARTICLE XX(A) Drafting History Application by Member States IV JURISPRUDENCE ON THE PUBLIC MORALS EXCEPTION US-Gambling China-Audiovisual V PREVIOUS INTERPRETIVE THEORIES Originalism, Transnationalism, and Universalism Evidentiary Unilateralism Restriction-Sensitive Approaches Black Market Regulation Addition VI A DEFENCE OF EVIDENTIARY UNILATERALISM Weaknesses of the Restriction-Sensitive Approach Evidentiary Unilateralism--The Path Forward VII CONCLUSION I INTRODUCTION

The equilibrium between free trade and sovereign state regulation of public morality is a delicate one, and has long been the focus of controversy. Article XX(a) of the General Agreement on Tariffs and Trade ("GATT") (1) and its equivalent provision in Article XIV(a) of the General Agreement on Trade in Services ("GATS"), (2) allow Member States to justify otherwise contravening trade restrictions on the grounds that such restrictions are necessary to protect public morals. The balance between the principle of non-discrimination under international trade law and a state's desire to regulate matters of public morality lies at the heart of the conflict. Of particular consequence is the question of how to allow states to regulate matters of moral importance while ensuring that they do not abuse this freedom by enacting disguised protectionist measures.

Although the public morals exception has been incorporated into trade law for over 50 years, it is only recently--in US-Gambling (3) and China-Audiovisual (4)--that the World Trade Organization ("WTO") has been required to interpret and apply the exception. These landmark cases have nonetheless left many questions unanswered. For example, how are adjudicators to evaluate the legitimacy of a country's claim that the regulation at issue is a matter of public morality? Additionally, who polices the substance and boundaries of public morality? Can a state unilaterally determine the scope of public morality, or does a norm have to be accepted universally as a moral issue to be considered legitimate?

This article will examine these issues in the context of the US-Gambling and China-Audiovisual decisions and in light of the current literature. This article will defend the theory of evidentiary unilateralism, first proposed by Jeremy Marwell, (5) against rival interpretations of the scope of the public morals exception. Particularly, I will argue that to ensure an acceptable level of predictability, and thus stability, in the global trading regime, states should be permitted to unilaterally define public morals; however, to prevent veiled protectionist measures, enacting states should also be required to overcome a number of evidentiary hurdles before they can rely on the public morals exception.

The article is divided into seven parts. Part II provides an overview of the competing interpretive theories concerning the public morals exception. Parts III and IV analyze the legislative history and case law surrounding the public morals exceptions in the GATT and the GATS in order to demonstrate that evidentiary unilateralism is the theory most consistent with how the public morals exception has been understood and applied in practice. Parts V and VI examine the academic debate surrounding the definition of the public morals exception in order to demonstrate that a suitably revised version of Marwell's evidentiary unilateralism theory provides the optimal balance between trade liberalization and state sovereignty, and Part VII concludes.

II BACKGROUND TO COMPETING INTERPRETIVE THEORIES

The substance of public morals and the appropriate interpretive framework in which to understand it are not self-evident. As discussed below, there is limited legislative history to draw on, and the WTO was not required to interpret the public morals exception until 2005 in US-Gambling. As a result, the academic conversation surrounding the substance and interpretation of the public morals exception has been hotly contested. (6) The scholarly discourse can generally be categorized in one of two ways: (i) advocating for public morals to encompass measures regarding a particular issue, such as human or labour rights; or (ii) aiming to construct an interpretive theory under which any trade-restrictive measure is evaluated by a standard set of objective criteria.

This paper focuses on the two primary interpretive models proposed for the public morals exception: Jeremy Marwell's evidentiary unilateralism, (7) and Mark Wu's restriction-sensitive approach. (8) This section will explore the originalism, transnationalism, and universalism theories, which both Wu and Marwell considered and rejected. It will be shown how these theories would address the issue of human rights coverage to illustrate their differences, and that it is vital for the stability of the global trade regime for an interpretive theory to be developed and applied consistently by the WTO judiciary.

COMPETING INTERPRETIVE THEORIES AND THE ISSUE OF HUMAN RIGHTS

Activists have disagreed over whether the public morals exception should be used to advance human, labour, and women's rights through trade sanctions. Liane Jarvis contends that human rights concerns for women should be addressed through Article XX(a)'s public morals exception because globalization is more harmful to women than men. (9) Michael Trebilcock, Robert Howse, and Antonia Eliason argue that

the very idea of public morality has become inseparable from the concern for human personhood, dignity and capacity reflected in fundamental rights. A conception of public morals or morality that excluded notions of fundamental rights would simply be contrary to the ordinary contemporary meaning of the concept. (10) Tatjana Eres disagrees, asserting that the WTO is not the appropriate regime for enforcing human rights law. (11)

A retreat to originalism would constrain the possible legitimate public morals exceptions to those explicitly considered by the drafters of the GATT and the GATS. Member States would only be able to rely on the public morals exception to protect a human right if that right was understood, at the time of drafting in the 1940s, to be necessary to maintain public morality. As a result, originalism would likely render Article XX(a) an inappropriate venue for enforcing human rights. Yet as one advocate has argued, and as the exclusion of addressing many more recent human rights under Article XX(a) illustrates, a retreat to originalism would provide clear direction to the public morals exception and potentially be the most successful at ameliorating concerns that the public morals exception will be used to enact veiled protectionist measures. (12)

On a transnationalist model, a state could only rely on the public morals exception to implement a trade-restrictive measure aimed at protecting a human right if similarly situated states could also be shown to support the human right at issue. This model allows some room for the culturally sensitive nature of public morals, while grounding the public morals exception in other sources of international law, such as treaties or widely held customary practices.

Finally, to justify the restrictive measure, universalism would require states to demonstrate universal or near-universal acceptance that the human right is necessary to protect public morals. Accordingly, only human rights that have universal or near-universal acceptance, such as those enshrined in the Universal Declaration of Human Rights, (13) could form the basis of trade-restrictive measures.

This article will argue that originalism, transnationalism, and universalism are all problematic solutions that do not align with WTO jurisprudence. A well-developed interpretive theory for the public morals exception that aligns with the jurisprudence and legislative history of the WTO is imperative to maintaining a stable global trade regime. The theory of evidentiary unilateralism--where each state is able to unilaterally determine which measures, and thus human rights, are necessary to protect public morals subject to evidence of such--is most aligned with WTO jurisprudence and strikes the ever elusive balance between trade liberalization and state autonomy. Under evidentiary unilateralism, Member States are provided a clear rubric that allows for certainty when making legislative decisions regarding measures necessary to protect public morals, and the culturally and socially content-specific concepts of morality are respected. Evidentiary unilateralism also ensures that the WTO has the necessary tools to resolve conflicts in a consistent and transparent manner, encouraging Member States to comply from the outset. Parts III and IV, below, will provide the legislative and adjudicatory context of the public morals exceptions enshrined in the GATT and the GATS in order to demonstrate that evidentiary unilateralism is the theory most consistent with how the public morals exceptions have been understood and applied in practice.

III BRIEF HISTORY OF ARTICLE XX(A)

Article XX of the GATT enumerates ten matters upon which Member States may impose measures that would otherwise be illegal under trade law for violating one of the non-discrimination rights enshrined in the GATT. The range of exceptions includes measures "necessary to protect human, animal or plant life or health"; measures "relating to the products of prison labour"; measures "relating to the conservation of exhaustible natural resources"; and measures focused on stabilizing domestic economies in essential circumstances. (14) Article XX(a) of the GATT and Article XIV(a) of the GATS provide for an exception to the norms of non-discrimination in trade law based on public morality. Along with the chapeau, Article XX(a) of the GATT reads as follows:

Subject to the requirement that such...