The public morals exception: how the teachings of the European Court of Human Rights can lead toward a renewed interpretation within the World Trade Organisation

Since 1995, members have been regularly joining the World Trade Organization, forming a complex mosaic of heterogeneous states that includes a variety of cultures, religions, practices, and customs. This growing diversity poses several important challenges, particularly with regard to the possibility of limiting trade regarding citizen concerns that emanate from all members. How can a state respond to its people’s demands while respecting its commitments toward all members? The public morals exception consisted in a response, which was examined four times by the quasi-judicial bodies of the WTO. While the four measures defended were recognized as public morals, none were able to pass all commercial tests and be justified. The gaps and questions concerning the interpretation of this exception, as well as the new enthusiasm it arouses, merit attention. To this end, this article proposes to revisit the public morals exception in line with the European Court of Human Rights jurisprudence, which also interprets the term “public morals”, and has done so for forty years. Through its jurisprudence, the court has developed a unilateral approach to the moral norm and a consensual perspective on the need for interference. It is postulated that the quasi-judicial bodies of the WTO could do likewise, with the aim of respecting the norm’s nature.