The Public Morals Exception After the WTO Seal Products Dispute Has the Exception Swallowed the Rules?

Abstract

The public morals exception to the World Trade Organization (“WTO”) trade rules was explicitly invoked for the third time in the trade regime’s history in the WTO dispute over seal products. While shedding further light on the public morals exception, the WTO Appellate Body’s decision in this dispute has raised concerns about an overbroad public morals doctrine that could provide a cloak for protectionism. Some commentators argue that the decision has left the exception with no boundaries, leaving the door open for validation of otherwise illegal trade-restrictive measures disguised as measures intended to protect a public moral. This Note addresses such concerns about the unforeseen but far-reaching implications of the European Communities—Measures Prohibiting the Importation and Marketing of Seal Products (“EC—Seal Products”) decision, and argues that the Appellate Body properly and necessarily left the definition and scope of what constitutes a public moral to the discretion of individual WTO member countries. In discussing the WTO’s treatment of the public morals exception in the context of the trade-morality conflict, this Note argues that the implications of the EC—Seal Products decision are not as severe as they may seem. Given the increasingly diverse values, beliefs, and morals that exist among WTO member countries, as well as the crucial role of the WTO as adjudicator among them all, this Note argues that the decision necessarily protects member countries’ sovereignty as well as the trade regime’s legitimacy and resilience.