Defining “Public Morals” Under the WTO

Opinio Juris » Blog Archive » Sex, Religion and Chewing Gum: Defining “Public Morals” Under the WTO

Sex, Religion and Chewing Gum: Defining “Public Morals” Under the WTO

by Roger Alford

Article XX(a) of the GATT allows countries to violate WTO rules if doing so is “necessary to protect public morals.” The “public morals” exception is notoriously elusive, with only one WTO case—the US-Gambling Services case—clarifying the scope of the exception. So in a real sense we don’t really know when “public morals” can or cannot be invoked. According to the Panel report in that case, “the term ‘public morals’ denotes standards of right and wrong conduct maintained by or on behalf of a community or nation.” (Para. 6.465). Okay that really clears things up.

So if one cannot discern public morals based on WTO case law, how about analyzing what countries are actually doing. By good fortune, one of my students just finished working as an account manager at UPS and he informed me that the UPS website provides a handy service that identifies all “restricted or prohibited commodities” in every country in the world. From my perspective this list gives international trade scholars a pretty good sense of what type of products are prohibited in particular countries based on factors such as public morals.

Of course there are some political restrictions, such as a dozen Islamic countries that prohibit the importation of any Israeli products. And there are plenty of products one would expect to be restricted, such as alcohol, drugs, tobacco, weapons, etc. But beyond these categories there also were numerous other prohibited items that took me by surprise. Here is a sample of the kind of products that apparently offend public morals in different parts of the world:

Afghanistan: Any art, books, pictures, statues, and CDs prohibited by Islamic law.

Canada: Paintball and air-soft guns

China: All publications, promotion materials, printed matter and others that threaten the state security, social and political stability

Colombia: Toys of war

Denmark: “Red Bull” energy drink

Egypt: Satanic items

India: Maps depicting incorrect Indian boundaries

Indonesia: Chinese publications

Japan: Christmas ornaments

Kenya: Wildlife trophies

Libya: Any item sensitive to the Moslem culture or the Middle East situation

Malaysia: Any clothing reproducing verses from the Koran

Nepal: All beef products; Information gathering devices such as radios, televisions, telephones and cassette players

Nigeria: Basic hygienic products including soap, toothpaste, and detergent

Pakistan: Ham and pork

Saudi Arabia: Gambling devices, pornography, Bibles, human or animal toy action figures that resemble idols.

Singapore: Chewing gum

Taiwan: Chinese origin goods

Tanzania: Salman Rushdie’s “Satanic Verses”

Tunisia: Condoms

UAE: Religious books

Vietnam: Bikini swimsuit calendars

I’m not sure there’s a discernible pattern from the UPS list of restricted or prohibited commodities. But if one can find it, it offers perhaps the best definition of de facto “public morals” currently available.