What Sorts of Things are Public Morals? A Liberal Cosmopolitan Approach to Article XX GATT
| Date | 01 July 2017 |
| Author | Oisin Suttle |
| DOI | http://doi.org/10.1111/1468-2230.12275 |
| Published date | 01 July 2017 |
bs_bs_banner
THE
MODERN LAW REVIEW
Volume 80 July 2017 No. 4
What Sorts of Things are Public Morals? A Liberal
Cosmopolitan Approach to Article XX GATT
Oisin Suttle∗
Existing theories of WTO law cannot adequately explain the form or content of the GATT
exceptions, in particular Article XX(a) Public Morals. Nor, in consequence, can they satisfac-
torily answer the interpretive questions they raise. This article explains Article XX in terms
of self-determination as a political and moral value, and the choices it mandates peoples make
for themselves. Drawing on debates in contemporary political philosophy, it distinguishes three
categories of argument for self-determination: intrinsic, expressive and instrumental, each hav-
ing implications for the scope of the choices a self-determining community must make for
itself. This account of self-determination in trade regulation is used to reconstruct Article XX,
both explaining the individual provisions, and suggesting how these might be developed and
interpreted. It concludes by examining Article XX(a) in detail, highlighting the interpretive
questions public morals pose, and how understanding Article XX in terms of self-determination
suggests these should be answered.
INTRODUCTION
WTO law expresses a recurring tension between multilateral discipline and
unilateral choice. In some cases, that tension falls to be resolved within individ-
ual provisions. In others, such as the General Agreement on Tariffs and Trade,
it is expressed through a balance of rules and exceptions. On one hand, the
GATT comprises a set of restrictions on, inter alia, tariffs (Article II), quantita-
tive restrictions (Article XI), and discrimination, whether against (Article III) or
amongst (Article I) trading partners (together, the ‘Core Disciplines’). On the
other, it provides various exceptions, addressing economic (Article XII Balance
of Payments, Article XVIII Economic Development, Article XIX Safeguards)
∗Lecturer, School of Law University of Sheffield. o.suttle@sheffield.ac.uk This article is based in part
on work completed for a PhD at University College London. I am grateful to my PhD supervisors,
John Tasioulas and Fiona Smith, for discussions and comments. An earlier version was presented
at the Fourth Annual Junior Faculty Forum for International Law, European University Institute,
Florence, June 2015. I am grateful to participants on that occasion, as well as to the editors and two
anonymous reviewers for this journal, for helpful suggestions in improving the article. Parts of the
argument below are developed in moredetail in O. Suttle, Distributive Justice and World Trade Law: A
Political Theory of International Trade Regulation (Cambridge: CUP, forthcoming 2017).
C2017 The Author.The Moder n Law Review C2017 The Modern Law Review Limited. (2017) 80(4) MLR 569–599
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
A Liberal Cosmopolitan Approach to Article XX GATT
and non-economic (Article XX General Exceptions, Article XXI National
Security) concerns. WTO members’ freedom to enact particular measures de-
pends, first, on whether a measure is caught by one of the Core Disciplines, and
second, whether it falls within one of the exceptions. Indeed, it is primar ily
under the exceptions, rather than the rules, that the GATT seeks to accom-
modate such sensitive concerns as environmental protection, public health and
public morals. The exceptions thus play a crucial role in delimiting members’
regulatory sovereignty.
A plausible account of the GATT must therefore explain both the rules and
the exceptions. My concern in this paper is the exceptions, and in particular
Article XX, which I argue is inadequately explained in existing theories of
WTO law. In consequence, those theories have struggled to provideinter pretive
guidance or critical standards for the various exceptions in Article XX, or to
legitimise the - often controversial - decisions of WTOpanels and the Appellate
Body (AB) thereunder. Given the centrality of Article XX in the GATT case-
law, this is a serious failing.
To remedy this I advance a novel account of Article XX, as expressing the
distinctive moral and political value of self-determination. Drawing on vari-
ous existing arguments for self-determination, I show how these can identify
its limits in supporting states’ claims to regulate particular matters, notwith-
standing the effects such regulation may have on outsiders. I show how these
limits can in turn explain the form of the various exceptions in Ar ticle XX.
Finally, I apply this account to explain and cr itique one exception in particular,
Article XX(a), which exempts measures ‘necessary to protect public morals’. I
highlight the interpretive questions this provision raises, the Appellate Body’s
difficulties answering these, and how thinking about Article XX(a) in terms of
self-determination can contribute to their satisfactor y resolution.1
I focus on public morals for three reasons. First, their ambiguity. The scope of
Article XX(a) is open, and the subject of significant controversy.2What exactly
are public morals? What does it mean to protect them? Are they concerned
with qualities of persons, communities, or actions? Whose morals are at stake,
and where? Debates about Article XX(a) have pitted advocates of a maximalist
understanding, motivated by concerns for national autonomy, pluralism and
global subsidiarity; against more minimal interpretations from those worried
about disguised protectionism, international stability, and more generally that
an expansive interpretation of Article XX(a) risks entirely subsuming the Core
Disciplines themselves.3Howse, Langille and Sykes, for example, deny that
1 While my focus is the exceptions, these cannot be fully divorced from our understanding of the
Core Disciplines themselves. For my account of these, see, O. Suttle, ‘Equality in Global Com-
merce: Towards a Political Theory of International Economic Law’ (2014) 25 European Journal
of International Law 1043. There is some interdependence between the scope of the disciplines
and the exceptions, as a broader interpretation of the former inspires calls for broadening the
latter, and vice versa.
2 It is unsur prising that those advocating a broad interpretation of Article XX(a) also advocate
permissive interpretations of the Core Disciplines themselves. See, for example, R. Howse and
D. Regan, ‘The Product/Process Distinction - an Illusory Basis for Disciplining ‘Unilateralism’
in Trade Policy’ (2000) 11 European Journal of Inter national Law 249.
3 For an overviewof the debates, see S. Charnovitz, ‘The Moral Exception in Trade Policy’(1997)
38 Va J Int’l L 689; J. C. Marwell, ‘Trade and Morality: The WTO Public Morals Exception
570 C2017 The Author. The Modern Law Review C2017 The Modern Law Review Limited.
(2017) 80(4) MLR 569–599
To continue reading
Request your trial