The Limits of Morality: Application of the Public Morals Exception Beyond the GATT

The relationship between the general exceptions found within the General Agreement on Tariffs and Trade (GATT), and the obligations contained in the “specialized” goods texts of Annex 1A of the WTO Agreement has long been a matter of contention and legal uncertainty. Proponents of the “restricted application” approach point to a series of textual features, arguing that the flexibilities of the general exceptions will remain limited to the GATT, unless an express authorization has been included within an individual goods agreement. We explore this contention with particular focus on the public morality exception of GATT XX(a). Due to the Member-driven definition of this clause, the XX(a) exception could have implications far beyond the GATT. It thus provides a perfect test case for the applicability debate as a whole. This article examines each of the various arguments that have been put forward in favor of a restricted approach to applicability, including those based upon the phrase “this Agreement”, the notion of conflict, and the interpretation of silence. We argue that the twin principles of lex specialis and the “single undertaking” can serve, in many cases, to diminish the weight of these arguments. We argue that the public morality exception will be available for breaches of obligations within the specialized goods agreements of Annex 1A, provided that they apply as part of a single package with GATT rules, or they constitute lex specialis to pre-existing GATT disciplines. We propose a typology of the specialized goods agreements, based upon their relationship with the GATT. Ultimately, we argue that the GATT public morals clause is likely available for the majority of obligations within the specialized goods agreements, thus providing a valuable fail-safe for legitimate regulatory restrictions that, while difficult to foresee now, may arise in the future.