The Origins of the Public Morals Clause in WTO Law

Abstract

As countries continue to join the World Trade Organization (WTO), its diversity, which needs to be preserved, also expands. One way a country can uphold its value is to restrict trade to protect its public morals. The drafters of WTO agreements did not provide a meaning to what constitutes public morals (either by omission or purposefully), simply leaving the task to interpreters when a dispute arises. This paper traces the origins of the vague concept of ‘public morals’ now found in WTO-covered agreements in order to inform the panels and the Appellate Body’s approach to treaty interpretation that takes into account the preparatory works and circumstances surrounding the conclusion of a treaty. While it is taken for granted that GATT Article XX was drafted in 1927, this paper holds the view that ‘the protection of public morals’ which forms part of the general exceptions was actually devised earlier in history.