Free Trade vis-à-vis Morality: Revisiting the Public-Morals Exception Clause in the World Trade Organization

Publication Date01 November 2021
AuthorSwargodeep Sarkar
DOI10.1177/00157325211015468
Date01 November 2021
SubjectArticles
Free Trade vis-à-vis
Morality: Revisiting the
Public-Morals Exception
Clause in the World
Trade Organization
Swargodeep Sarkar1
Abstract
The most sanctified obligation of the World Trade Organization (WTO) is the
promotion and facilitation of international trade and liberalisation of the world
economy. Although WTO members are committed to the WTO principle of free
flow of goods and services among its members, the WTO permits its members
to retain certain regulatory powers under its system to impose trade-restrictive
measures based on certain exceptions, like, among other things, public moral-
ity under Article XX(a) of the General Agreement on Tariffs and Trade (GATT,
1994). Nevertheless, the question remains: what is public morality for a WTO
member, and how far may this clause be invoked in defence of adopting trade-
restrictive measures? Recently, the WTO panel on the US tariff case revived the
long-standing debate on international trade versus public morality. Is a WTO
member free to choose any trade-restrictive measure under the cloak of public
morality? Then, what mechanism has the WTO panel/AB (Appellate Body) envis-
aged to check WTO members from adopting any trade-restrictive measure based
on public morals? This article tries to answer these questions by analysing previ-
ous WTO disputes related to trade and morality. Against this background, this
article looks back at the history of the public-morals exception clause, revisits
previous WTO case laws on the public-morals exception and tries to ascertain
the precise meaning of public morality—how the WTO Dispute Settlement Body
(DSB) checks and balances two conflicting principles, that is, the right to regulate
and the principle of free trade—and whether WTO has successfully developed
a coherent jurisprudential approach to deal with contradictory interests, that is,
trade versus morality.
Article
1 Indian Institute of Technology, Kharagpur, West Bengal, India.
Corresponding author:
Swargodeep Sarkar, Indian Institute of Technology, Kharagpur, West Bengal 721302, India.
E-mails: swargodeepsarkariitkgp@gmail.com; lawyerswargodeep@gmail.com
Foreign Trade Review
56(4) 476–490, 2021
© 2021 Indian Institute of
Foreign Trade
Reprints and permissions:
in.sagepub.com/journals-permissions-india
DOI: 10.1177/00157325211015468
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