There have been few interpretations of Article XX(a) of the General Agreement on Tariffs and Trade (GATT 1994) – the specific exception that justifies what would ordinarily be a State’s GATT-inconsistent measure, unless such measure is deemed “necessary to protect public morals”. As with any of the ten enumerated exceptions under Article XX of GATT 1994, a State invoking GATT Article XX(a) must first meet the requirements of the specific exception (e.g. demonstrating that the challenged measure is indeed “necessary to protect public morals”), and thereafter show that the challenged measure also complies with the overall requirements of ‘good faith’ (Brazil – Measures Affecting Imports of Retreaded Tyres, Appellate Body Report of 3 December 2007, at para. 215) as contained in the chapeau to Article XX (e.g. demonstrating that the challenged measure is not being applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade). The 25 November 2013 Panel Report in European Communities – Measures Prohibiting the Importation and Marketing of Seal Products [hereafter, "EC-Seal Products"] issued the very first decision upholding a State’s right to regulate for public morals as an exception under Article XX(a) of GATT 1994, in relation to ongoing trade arising from seal hunting (pictured above left,) and seal products.
It may be recalled that the 2009 Panel Report in China- Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products [hereafter, "China - Publications and Audiovisual Products"] was the first occasion for a WTO panel to directly interpret the scope and meaning of measures “necessary to protect public morals” under GATT Article XX(a). China had invoked the “public morals” exception in GATT Article XX(a) to justify a set of measures that regulated the entry of foreign publications, audiovisuals and other media forms. China argued that its regulations were designed to protect public morals in China by reviewing the content of foreign cultural goods and forms of expression that could potentially collide with significant values in Chinese society. The China – Publications and Audiovisual Products Panel had little trouble accepting the interpretation of “public morals” (China-Publications and Audiovisual Products, para. 7.759) already laid down in the 2004 Panel Report in United States- Measures Affecting the Cross-Border Supply of Gambling and Betting Services [hereafter, "US-Gambling"], which had defined “public morals” in Article XIV of the General Agreement on Trade in Services (GATS), as “standards of right and wrong conduct maintained by or on behalf of a community or nation” (US – Gambling, para. 6.465). However, the Panel ultimately rejected China’s assertion of GATT Article XX(a) exception (China-Publications and Audiovisual Products, para. 7.911), finding that China had failed to show the “necessity” of its challenged measures for the supposed purpose of protecting public morals. The Appellate Body upheld these findings in its December 2009 Report.