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A Study on the Public Morals Exception Clause Under the WTO Framework

Author: ZhaoShuHui
Tutor: MaQian
School: Zhengzhou University
Course: International law
Keywords: the public morals exception clause WTO US—GamblingChina—Publications
CLC: D996.1
Type: Master's thesis
Year: 2013
Downloads: 26
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Abstract


The exception clauses have played a very important role in the WTO system. There are a number of agreements under the WTO system provides for the exceptions clauses, the two important agreements of those agreements named General Agreement on Tariffs and Trade "(hereinafter referred to as the" GATT ") and General Agreement on Trade in Services (hereinafter referred to as "GATS") have listed the special articles to provide that some particular situation can be used as a defense when activity violate the WTO obligations, they are article20of GATT and article14of GATS and these articles are named as the "general exception" clauses. The first provision of these exception clauses is the "public morals exception clause", which is sufficient to see the importance of this exception. In my thesis, I have used the method of historical analysis, case analysis and comparative analysis to analyze the public morals exception clause under the WTO framework.The first part of my thesis describes the formulation and development of the public morals exception clause under the WTO framework. Before the establishment of the WTO, there are many international treaties have chosen the moral exception as one reason for exemption of the international treaty, it can be said this is the background of the WTO public morals exception. The two important WTO agreements GATT and GATS have incorporated into the public morals exception. In stark contrast, after the article have included, this article has not been applied and clarified for more than50years, but the public moral exception clauses are still play a more active role in the international trade law.Considering the interpretation of the conception "public moral" is the key to understood and invoke the terms of the public morals exception properly, therefore, the interpretation of the provisions largely depends on the interpretation and definition of the meaning of "public morals", based on this, the interpretation of the provision is listed separately as the second part of the thesis. In this part, I have interpreted and defined the meaning of the term "public morals" by resorting to the interpretation under the "Vienna Convention on the Law of treaties". In addition, in view of the GATS14(a) has added the concept of the "public order", so in this part I also discussed the relationship of "public moral" and "public order".The third part of the thesis has mainly analyzed the application of the clause by analyzing the two case named the United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Services (hereinafter referred to as the "US—Gambling") and the China—Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products(hereinafter referred to as the "China—Publications"),focusing on the Panel and Appellate Body’s analysis of the specific terms of the public morals exception in these two cases. US—Gambling is the first case to invoke the public morals exception clause in the WTO system, this case established the standard of the analysis of the terms of the public morals exception. China—Publications is the recent case in which the respondent party is China, in this case,China invoke the public morals exception of GATT Article20(a) as a defense of the respondent measures,by analyzing this case, the panel and Appellate body are still used the criteria which established in the previous case.The fourth part of the thesis enumerates some questions in analyzing and the applying the public morals exception, there are some questions as follows:When the WTO Dispute Settlement Body is analyzing the terms of the public morals exception, a key issue is that what is the meaning of the "public moral" as well as how to determine the meaning is still do not have a clear answer; Meanwhile, a sequential "two-tier test" analysis method has rigidly divided the public morals exception clause into two parts, and this is contrary to the interpretation of treaties principles; In addition, the standard which the WTO dispute settlement mechanism applied named the "necessary test" is very strict and uncertain.The last part of the thesis proposes some appropriate strategies to China in case it invokes the public morals exception clause in the future what attitude should be taken. Firstly, I have identified the legal provisions which provide the public morality trade measures provisions in China, and later I have proposed some countermeasures to China in case it invokes the public moral exception clause in the future.

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