The Limits of Morality: Application of the Public Morals Exception Beyond the GATT

45 Pages Posted: 8 Jul 2012

See all articles by Tomer Broude

Tomer Broude

Hebrew University of Jerusalem - International Law Forum

Mikella Hurley

affiliation not provided to SSRN

Date Written: July 6, 2012

Abstract

The relationship between the general exceptions found within the General Agreement on Tariffs and Trade (GATT), and the obligations contained in the “specialized” goods texts of Annex 1A of the WTO Agreement has long been a matter of contention and legal uncertainty. Proponents of the “restricted application” approach point to a series of textual features, arguing that the flexibilities of the general exceptions will remain limited to the GATT, unless an express authorization has been included within an individual goods agreement. We explore this contention with particular focus on the public morality exception of GATT XX(a). Due to the Member-driven definition of this clause, the XX(a) exception could have implications far beyond the GATT. It thus provides a perfect test case for the applicability debate as a whole.

This article examines each of the various arguments that have been put forward in favor of a restricted approach to applicability, including those based upon the phrase “this Agreement”, the notion of conflict, and the interpretation of silence. We argue that the twin principles of lex specialis and the “single undertaking” can serve, in many cases, to diminish the weight of these arguments. We argue that the public morality exception will be available for breaches of obligations within the specialized goods agreements of Annex 1A, provided that they apply as part of a single package with GATT rules, or they constitute lex specialis to pre-existing GATT disciplines. We propose a typology of the specialized goods agreements, based upon their relationship with the GATT. Ultimately, we argue that the GATT public morals clause is likely available for the majority of obligations within the specialized goods agreements, thus providing a valuable fail-safe for legitimate regulatory restrictions that, while difficult to foresee now, may arise in the future.

Keywords: WTO, General Agreement on Tariffs and Trade, general exceptions, public morals, Annex 1A, goods pillar, lex specialis, single undertaking, conflict

JEL Classification: F02, F10, F20, F30, F40

Suggested Citation

Broude, Tomer and Hurley, Mikella, The Limits of Morality: Application of the Public Morals Exception Beyond the GATT (July 6, 2012). Society of International Economic Law (SIEL), 3rd Biennial Global Conference, Available at SSRN: https://ssrn.com/abstract=2101713 or http://dx.doi.org/10.2139/ssrn.2101713

Tomer Broude (Contact Author)

Hebrew University of Jerusalem - International Law Forum ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel

Mikella Hurley

affiliation not provided to SSRN ( email )

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
300
Abstract Views
1,825
Rank
185,544
PlumX Metrics