Simo: Trade and Morality: Balancing Between the Pursuit of Non-Trade Concerns and the Fear of Opening the Floodgates

Regis Y. Simo (Univ. of Witwatersrand - Law) has published Trade and Morality: Balancing Between the Pursuit of Non-Trade Concerns and the Fear of Opening the Floodgates (George Washington International Law Review, Vol. 51, no. 3, p. 407, 2019). Here's the abstract:

The liberalization of trade is the main objective of the World Trade Organization (WTO) and its numerous agreements. However, trade liberalization often conflicts with some important societal values and interests. This is the reason why a set of exceptions were devised in WTO-covered agreements to reconcile these conflicting interests. These exceptions allow Members to adopt measures for the protection of a number of values, including the protection of “public morals.” But because the term “public morals” is not defined by WTO agreements, the task of ascribing meaning to such a vague concept is left to the WTO judiciary. Highly ambiguous and subjective, “public morals” introduces a dose of uncertainty into the law of the WTO, which may have to deal with as many different conceptions of morality as there are Member States. Since the scope and limits of “public morals” remain uncertain, the adjudicator is left with a difficult task as it is confronted with cases pleading a public morality defense. This Article reviews the cases in which the adjudicator has indulged in the delicate exercise of balancing the preservation of public morals and the imperative of trade liberalization. This Article also critiques the standard of review and sets out to determine the degree of deference accorded to Members to define what constitutes public morals within their respective territories and whether, by so doing, the adjudicator has acted consistently within the delegated power of the Dispute Settlement Understanding (DSU).