Public Morals and Public Order Exceptions under WTO Jurisprudence: Establishing Common Standards of Public Morals and Public Order Exceptions
Date Issued
2011
Date
2011
Author(s)
Wong, Nai-Fang
Abstract
Since the late 1990s, public morals and public order exceptions have increasingly drawn the attation of academica and international organizations. Unfortunatley, even though there are exceptions to public morals and public order for all countries for the maintenance of its unique social value, vague treaty provisions leave the member the right to stand for the exceptions but fail to justify its measures. Despite the fact that its scope and meaning remained unarticalated, each country continuted to look to the exceptions to justify the legality of certain acts. Moreover, more and more countries restrit trade in favor of certain forms such as cultural protection, humanitarian concerns. Therefore, should we call for a boarder reading of public morals and public order that would permit trade restrictions fostering such conserns?
However, Free trade and public morals and public order exception coexist in a precarious balance. On the one hand, the international trading system was founded on the principle of nondiscrimination. Under this principle, Countries could not justify why its measures disadvantage those that fail to share their geopolitical or religious views. On the other hand, the system was also founded on the notion that countries should not be forced to liberalize trade when doing so would threaten their public morality. But how is this balance defined?
As the largest international trade organization, the WTO is now more than 150 Member States also show a high degree of cultural diversity. Thus, the question of whether “humanitarian concerns”, “cultural concerns” and “religion concerns” are encompassed with public morals exception to the WTO rules remains, and, given nations and their localities'' propensity to utilize their trade laws to effect social change in other countries, or, moreover, to utilize international customary as exceptions to justify the legality of their measures. How to moderate claims and inspection of public morals and public order exception is the subject of this thesis. At first, I may explore the original meanings of the public morality and oublic order. By reviewing the previous WTO Panel reports and Appellate Body reports and collatethe practices of several countries, the author tries to find out the common standards and explanations of public morality and public order exceptions.
Subjects
public morals
public order
general exception
two-tier test
GATT Article XX(a)
GATS Article XIV(a)
Type
thesis
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