Study On The Exception Clause Of Public Morals In WTO Rules

The exception clause of public morals in WTO rules only with a dozen of words, in order to balance the free trade and public morality, become the focus of attention from the trading parties, after in silence for more than half a century. It is the reason that the WTO rules have a dual mission:on the one hand, it stressed that the members must adhere to free trade; on the other hand, it stressed that the members have the right to take trade restriction measures, when their public morality have been or may be subject to damages from free trade. However, the key issue is: how to realize the coordination of this relationship between the twos? In other words, how to make the trading parties do in the protection of public morals, without abuse of rights in disguise to implement trade protectionism? The trade practice shows that, the terms of the WTO public morals exception (allowing countries to take "necessary to protect public morals" trade measures) are quite controversial, because of it's expression in simple, so that members of the parties and the DSB served as an expert so far failed to reach a consistent interpretation. This left a lot of thinking space to explore.This article is divided into three parts of the introduction, the body and the conclusion. Among them, the "body" is divided into six chapters discussed next.For the discourse background and discuss basis of the exposition on the body, so that the first chapter introduces the concept, characteristics, the legal basis and formulation of WTO public morals exception. Taking into account the connotation of "public morals" interpretation is the key to understand and invoke the WTO public morals exception clause, the second chapter devoted to the interpretation of the provisions. Within the WTO system of rules, the dispute caused by the "fuzzy terms" is duty by the DSB to explain clarify. The legal basis of this behavior is the Vienna Convention on the Law of Treaties, and the DSB actually following precedent "case rules". The interpretations adopted by the DSB include objective interpretation methods, effective interpretation methods and dynamic interpretation methods. But the problem is, even if there is a legal basis and interpretation methods, the DSB had not clearly explained the connotation of "public morals". In "American Gambling Case" and "Sino-US market access for publications case", DSB is still not explain clearly the connotation of "public morals", but tend to agree with the members of the party some having the autonomy in defining the "public morals". From the legislative and judicial practice of "public morality exceptions", there is not a consistent connotation, but a number of regional consensu based on geographical, historical, cultural or political reasons.In addition, in view of the GATS section14(a) added an concept "public order", therefore, it's necessary for this chapter to discuss the "public morals" and "public order", and described them as a "two different but overlapping" concept.Needless to say, as a rule of law, quoting the "public morals exception" must meet certain conditions, namely:contrary to other WTO rules, in line with the principle of necessity, to meet the purpose of the GATT preamble. The third chapter focuses on the applicable conditions of the WTO public morals exception. To direct at the applicable order of the conditions, the necessity of the elements and the requirements of the preamble, this chapter examines their respective elements and their formation history, combined with case to analyze the applicable conditions, and concluded with the development of conditions of application of the exceptions:consultation and negotiation is no longer the need to test alternative measures; the need to test alternative measures of the burden of proof by a complaint transferred to the complaining party. These developments are clearly beneficial for equitable free trade and the public morality of the relationship.In view of the WTO public morals exception clause does not provide for its scope of application. Chapter IV of this article discusses the scope of application of the public morals exception clause from the horizontal and vertical two levels. To discuss whether the "public morals exception" could be applied beyond the agreement from the horizontal dimension. From the "Sino-US market access for publications case", the applicable scope of Article20of the GATT has been extended to the GATT, applied to the accession package. From the point of view of stare decides, the applicable scope of the "public morals exception" may continue to be extended to other WTO agreements. Vertical level for the "public morals exception" clause can be applied to extra-territorial (measures have been implemented outside of the country), the traditional theory that the original intention of the provision is aimed at protecting members of the party within the territory of public morality, and as public moral connotation continue to contain the factors included human rights, labor standards, animal welfare, including some of the major WTO members (such as the United States) have developed a trade-restrictive measures for the protection of other countries'public morality. Nevertheless, in order to prevent the clause being abused, this paper argues that the country violating of international jus cogens under international law, according to the general provisions on the principle of jurisdiction, may be applied to the "public morals exception" clause.Based on the application situation of the "public morals exception clause" in the WTO, to forcast the future for its application in the fifth chapter. The terms had become concerned about the "hot spots", China and other developing countries also began to actively invoking the general exception clauses to protect themselves; the DSB also committed to a balance of efforts between public morality and the right to trade. To a certain extent, these are the current applicable situation of the provisions of WTO public morals exception.More importantly, with the rapid development of world trade,"public morals exception" will appear in the three major trends:Firstly, the clause will be invoked greatly; Secondly, the public moral connotation will be further expanded and include into the limited human rights (including human rights, labor rights, etc.); Thirdly, in balancing the freedom of trade and public morality efforts, the DSB will continue to play a leading role. In order to safeguard the States to protect public morality demands and effectively prevent the abuse of the terms, the DSB, on the one hand, should be careful to guide the expansion trend of the public of the ethical dimension; on the other hand, moderately use of the applicable conditions of the "public morals exception".In view of the complaints against China increased year by year, to safeguard the trade interests of China, the China government and scholars must strengthen the clause of public moral exception in the WTO. For the "Sino-US market access for publications" exposed major problems, such as legislative existence of the vulnerability and the existence of proof, the sixth chapter of this paper made a number of improvement of legislation, developing the recommendations of the WTO litigation and personnel.