Research On Public Morals Exception Clauses Of WTO

As an international organization devoted to reduce trade barriers and promote economic freedom, WTO Agreements includes provisions on public morality, public health, environmental protection, national security, and other social values, because the Members of WTO widely recognized that one-sided pursuit of economic interests is difficult to achieve coordinated development and overall progress of the international community. Compared with public morals exception, environment and health exceptions are more frequently invoked by Members in previous WTO cases. Along with the development of intercourses between countries, trade frictions are increasing rapidly both in international trade of goods and services, and at the same time public morals as an exception measure comes to be invoked by some Members in recent years. Therefore, it is obvious that public morals exception will play an increasingly important role in international trade relations.On the other hand, WTO Members have a lot of different opinions on its interpretation and application due to the brief rules of exception, coupled with the breadth and unilateralism and abstraction of public morals. In practice, many countries protect their trade in the name of public moral exception with kinds of measures taken to prevent the import of foreign goods. If not prevent the abuse of public morals exception clause, that could become a new means of trade protectionism, then the empty demands of moral will threaten the stable operation of the entire trade system. Therefore, the in-depth study of public morals exception, not only helps to understand WTO rules deeply, but also provides effective advice for China exerting exception clause scientifically and rationally.Through case analysis, historical analysis and comparative analysis, this paper makes in-depth study on the theory and practice of public morals exception clause. Besides the introduction and conclusion, the paper consists of four sections. The first section expounds the basic theory of public morals exception of WTO, including its history and legal sources and essence. Public morals had been brought into international treaty prior to GATT1947 as exceptions to protect unique value of its own. Subsequently it was included in trade of goods and services and trade-related intellectual property rights of WTO. Its essence lies in resolving the conflicts of trade and morals caused by the differences of their real nature, aiming to coordinate the relationship of them.The second section defines public morals theoretically in WTO. First, with the latest dispute settlement practice using public morals exception, the author sets forth the panel and Appellate Body's train of analysis about public morals, that is, national standpoint as the premise of reasoning, interpreting the meaning of public morals, fixing the relevance of disputed measures and public morality and determining the purpose of disputed measures. Second, by comparing public morals and public order with the most similar concept and station, the author points out that no differences exist in practical effects and both often complement each other, despite of some similarities and differences in their meanings.The third section analyzes necessity and non-discrimination, two conditions of invoking public morals exception. There are two requirements for necessity. Consistency, first, needs that trade measures and the protecting goals should accord. Proportionality, second, demands that the implementation of measures taken complies with the specific objectives achieved. Non-discrimination requires that the measures do not constitute a means of arbitrary or unjustifiable of discrimination or a disguised restriction of international trade under the same conditions. The author makes a theoretical analysis and empirical research on the two conditions mainly based on related cases of the GATT and WTO.The fourth section puts forward specific countermeasures on how we understand and use public morals exception, which includes:strengthening research of international treaties and relevant cases, participating in international negotiations on related issues actively, improving relevant domestic laws and regulations, establishing social mechanism for the protection of public morals and forming flexible charge and plea mechanisms.