Title: Generalization of Public Moral Measures in the Context of International Trade and WTO Legal Regulation — Analysis of the Panel Report on US — Tariff Measures

Authors: Hu Jianguo, Gao Yuxin

Abstract: Since the establishment of WTO and especially in recent years, some Members have frequently invoked public morals exception to justify their trade- restrictive measures. Public moral measures in the context of international trade have increasingly shown the trend of becoming generalized. Since the case of US — Gambling, WTO panels and the Appellate Body have imposed almost no legal check on the “public morals” claimed by responding Member. The Panel on US — Tariff Measures followed a similar approach and basically gave up the “design test”. Despite the Panel’s emphasis on “a genuine relationship of ends and means” between the measures at issue and the protection of public morals during the analysis of the contribution elements of the necessity test as well as its implicit rejection of the “economic pressure” argument putting forward by the United States, there is still a major problem: the US Section 301 tariff measures will probably be justified under WTO public morals exception if they are duly designed. By extension, the United States can lawfully adopt unilateral measures to cope with so-called unfair competition issues, such as industrial subsidies and state-owned enterprises, which will significantly affect China. China should firmly object to infinite expansion of the concept of “public morals” based on the context of Article XX(a) of GATT1994 and an objectively narrowing interpretation. China should also actively use the WTO dispute settlement mechanism to affect jurisprudential developments to restrict the increasing abuse of WTO public morals exception.

Keywords: Generalization of public moral measures, WTO public morals exception, US — Tariff Measures