Abstract
This article is a comprehensive overview of the Public Morals Exception in the WTO. From textual or plain meaning approach, the vagueness of those provisions gives rise to several questions. What type of behavior implicates public morals? Can public morals differ from country to country or is there a uniform international ”moral” standard for all WTO Members? These questions have been arisen in several litigations, e.g., ”Measures Affecting Alcoholic and Malt Beverages”,” Measures Affecting the Cross-Border Supply of Gambling and Betting Services”, and ”Measure Affecting Government Procurement. This article analyzes those disputes in order to discuss the conflict between trade and morality. Contextual interpretation approach and the negotiating history seem to reveal that ”public morals” should be interpreted according to national standards. However, allowing each Member to restrict imports based on its own definition of morality could disrupt trade. Therefore, although Members should be able to define public morals based solely on their internal circumstances, it is also significant to avoid the potential protectionist abuses and trade-regulatory inefficiencies. The clash between trade and morality is the center of this study so as to demonstrate whether and how trade restrictions may be used to promote moral goals. This article argues that the ”proportionality test” adopted by the Panels and Appellate Body to determine whether given trade measure is necessary to protect public morals may improperly impinges on the autonomy of the Members. The author therefore proposes an alternative doctrinal framework for ”the concept of proportionality” in the WTO law which would better protect Members' autonomy. First, from the methodological point of view, when comparing the measure to alternatives, we should be very careful in assuming that a measure is ”equally effective” in achieving the chosen level of protection because such a finding would significantly interfere with a Member's domestic regulatory choices. In addition, when we ”weight and balance” the non-economic values against the costs of the trade restriction, we should be careful in assuming that a measure is disproportionate because such a finding would imply that the Member reduces the level of protection of its legitimate interest. To conclude, we should preserve the essential core of national sovereignty implicated by issues of moral regulation in order to harmonize trade and non-trade values, to promote coherence in the international architecture, and to move liberalization forward.