L'article XX a) du GATT : l'Exception de moralité publique dans le commerce international

Abstract

International market-opening is a force for growth but, as Pascal Lamy has said, whatever its benefits, it also has a destabilising impact on the economic and social fabric, and potentially on societal choices. This situation has opened a debate on the content of and the limits to national sovereignty and, in contrast, on the legitimacy of the WTO in connection with the recognition of fundamental values. At a moment when Member States do not seem able to agree on ambitious new advances, Article XX a) of the GATT is an important element because it offers the only guarantee against an absolutist vision of international trade. After summarizing the methodology whereby the Appellate Body examines policies that intend to be justified on Article XX of the Treaty, this paper brings together the necessary elements to approach the notion of public morals enshrined in its paragraph a). A priori, it is difficult to give a definition of public morals. This is a concept that differs from one country to another and varies over time, and the GATT's preparatory works do not give substantial information about its content. Indeed, in the minds of the drafters of the Treaty, Article XX a) was seen as similar to the clauses that were traditionally included in trade treaties. To better understand this notion, this paper examines the international discussions and agreements that existed before the creation of the GATT. Those were primarily the Economic Commission of the Genoa Conference and the International Convention relating to the Simplification of Customs Formalities concluded on 3rd November 1923 in Geneva. Those texts reveal that the public morals exception was provided by the States, for themselves, to protect their national sovereignty. Besides those elements, another field is examined. The public morals clause is not a prerogative of trade treaties. In fact, it has been a concept existing in international treaties protecting human rights since the Universal Declaration of Human Rights or the International Covenant on Civil and Political Rights and in texts negotiated in several regional organizations (the Convention for the Protection of Human Rights and Fundamental Freedoms, the African Charter on Human and Peoples' Rights, etc.). The analysis of the jurisprudence of the Appellate Body and other international jurisdictions reveals that « public morals » is an evolving concept. It can only receive a generic definition that includes all the rules and principles which are - at a given time - maintained by a community or a country and which establish standards of right and wrong conduct to preserve its fundamental values. We also note that these courts have limited their control over the content of what states consider to fall within their value system. They prefer to insist that « public morals » clause is not isolated from other articles of the treaty in which its protection is provided. Designed as an exception to other values, it goes hand in hand with the demonstration of the necessity of the measure, via the weighing and balancing approach, and its conformity with the Article XX chapeau (i.e. no arbitrary discrimination between countries where the same conditions prevail; no disguised restriction on international trade ; etc.). The exception of public morality is thus a provision meant to ensure national sovereignty. It was conceived during a period when the Nation State was the key element in international relationships and trade, well before the emergence of debates about public governance in the age of globalization that tend to build a new model where the role of States is smaller. It is therefore up to each country to establish its concrete definition to protect its territory. To allow each State to give its own definition of public morals is a wiser decision than it seems at first glance. Undoubtedly, if this could a priori present the risk for the States to be tempted to abuse the definition in order to circumvent their obligations set out in the treaty, this risk is, in fact, controlled by the general principle of good faith and by the other strong conditions imposed by the Appellate Body when it considers a measure that should be justified through Article XX. Finally, this article puts forward the arguments for getting the WTO - through its dispute settlement mechanism - to recognize the general principle that Article XX a) leads to a reading of the GATT which is consistent with the core values of each Member State, without contradicting the fundamental objectives of the Treaty. © De Boeck Supérieur. Tous droits réservés pour tous pays.