Preserving Morality or Crossing Boundaries? Assessing the Legality of Sanctions on Russia through the WTO’s Public Morals Exception

[Dhaval Bothra is a law student at Symbiosis Law School, Pune.]

Introduction

This blog specifically analyzes the legality of unilateral economic sanctions imposed by Member States, excluding UNSC sanctions. The primary focus is on evaluating the compatibility of these unilateral economic sanctions with the WTO’s Public Morals Exception, with particular emphasis on Article XX(a) of the GATT. It should be noted that invoking the public morals exception under Article XX(a) entails a more rigorous review process compared to invoking Article XXI(b) or (c). Recognizing this potential risk is crucial as it may influence the assessment of the legality of sanctions imposed on Russia within the framework of the WTO’s Public Morals Exception.

Sanctions against Russia have spurred debate over human rights protection and the extent to which international trade laws can take such concerns into account. The World Trade Organization’s (WTO) Public Morals Exception, which gives member nations the power to take the required actions to defend public morals, is regarded as an important part of this research. In this blog, I look at how the Public Morals Exception applies to international trade and whether the sanctions imposed on Russia are in line with the principle outlined under the clause. It would shed light on the legitimacy of sanctions on Russia in light of the protection of public morals and human rights by reviewing the legal framework and considering the implications of the Public Morals Exception.

What is the Public Morals Exception?

The Public Morals Exception is critical for allowing member countries to prioritize the protection of public morality. Countries that invoke the Public Morals Exception can take measures they deem necessary to maintain public morals, including the preservation of human rights.

Article XX of the General Agreement on Tariffs and Trade (GATT) sets forth the ‘General Exceptions’ which include actions recognized as exceptions to GATT substantive obligations.

It states:

“Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures:

(a) necessary to protect public morals;”

There is a two-tier test, wherein, the measure proposed in Article XX must not only fall under one or more of the specific exceptions under Article XX, but it must also meet the standards established by the opening clause. Thus, the requirements are:

1. The applicability of the provisional justification based on the measure’s classification under Article XX

2. The applicability of the chapeau of the Article XX

The Specific Exception Requirement – Article XX(a) for Protection of Public Morals

In WT/DS285/AB/R, Public Morals were defined as the “standards of right and wrong conduct maintained by or on behalf of a community or nation.” Additionally, as per the UN Secretary-General Report, 2000, the GATT General Exceptions call to mind the preservation of human rights such as the ‘right to life’, and hence these rules should arguably be read in conjunction with applicable international human rights norms. Furthermore, any relevant norms of international law applicable to the parties’ relations must be considered when interpreting an agreement as per Article 31(3)(c) of the Vienna Convention on the Laws of Treaties (VCLT). This principle has been demonstrated in cases such as the United States – Standards for Reformulated and Conventional Gasoline, highlighting the importance of taking into account relevant international legal norms in the interpretation of agreements.

Following fundamental principles of International Human Rights Law (IHRL), deliberate and premeditated killings of individuals are considered illegal, except in cases where it is an absolute last resort and urgently necessary to protect against an immediate threat to life. This understanding extends to the concept of ‘Public Morals,’ which encompasses subjects widely recognized as matters of moral judgment and substantial opinion. The global acknowledgement of these legal norms becomes imperative in upholding the principle of prohibiting unlawful killings as enshrined under Article 55 of the United Nations Charter. International human rights treaties, such as the International Covenant on Civil and Political Rights (ICCPR), explicitly prohibit arbitrary deprivation of the right to life, thereby conferring the necessary recognition of such legal norms. Moreover, this includes the prohibition of unlawful killings during armed conflicts, which further underscores the importance of respecting human rights and fulfilling international obligations as stipulated by these treaties and jus cogens norms under Article 53 of the VCLT.

The Chapeau Requirement of Article XX

The chapeau provision of Article XX of the GATT sets forth three criteria for the application of measures that seek justification under Article XX. These criteria require that there should be no “arbitrary” or “unjustifiable” discrimination between countries and no “disguised restriction on international trade.” Interpreting the chapeau involves striking a balance between the right of one party to invoke the exception and the right of the other party to uphold GATT obligations. To determine whether discrimination is arbitrary or justifiable, the focus lies on examining the underlying rationale or logic behind the discriminatory treatment concerning the objective of the measure. If there is a rational connection between the reason and the objective, the measure would not be considered arbitrary or unjustifiable. Moreover, the restrictions imposed must not serve as a concealed means to restrict international trade. Panels have relied on a defined understanding of the term “disguised restriction” to interpret these requirements, where “disguised” denotes actions that are unannounced or intended to be hidden behind misleading appearances.

Justifying the Sanctions on Russia under Article XX of the GATT

It is important to acknowledge from the outset that the consideration of economic sanctions as an issue of public morals has not yet been addressed in any previous WTO decisions. While there may have been a mention of it in a defunct case involving Venezuela, it is essential to recognize that the arguments presented in this blog regarding the legality of sanctions on Russia under the WTO’s Public Morals Exception represent the author’s perspective rather than established legal precedent.

In the author’s view, the imposition of sanctions on Russia can be firmly justified under the requirements outlined in Article XX. These sanctions are a response to protect public morals and address specific incidents that have violated these moral principles. Targeted sanctions have emerged as a powerful tool to ensure accountability and compliance for the preservation of human rights.

The primary justification for imposing sanctions on Russia lies in the imperative to safeguard public morals. Russia’s actions, including severe human rights abuses and flagrant violations of international norms, have gravely undermined the fundamental principles of human dignity and ethical conduct in the Ukrainian territory. These actions include arbitrary killings, detentions, torture, sexual violence, and extensive damage, requiring urgent international attention against civilians. The specific incidents and actions by Russia provide undeniable evidence of the contravention of public morals. These actions strike at the core of public morals by eroding the foundations of a just and peaceful international order.

The imposition of targeted sanctions on Russia serves as a pivotal instrument in promoting accountability and ensuring compliance with international norms, as required by Article XX. These sanctions act as a powerful deterrent, compelling Russia to reassess its actions and align with the expectations of the global community. By employing targeted measures, the goal is to foster a culture of compliance and encourage Russia to uphold the principles of public morals and respect for international norms.

The sanctions imposed on Russia meet the criteria enlisted under Article XX of the GATT, as they establish a clear and rational connection between the reasons for their imposition and the objective of protecting public morals.  Member States need to ensure that the sanctions do not serve as a means to arbitrarily discriminate against Russia or covertly restrict international trade. Any potential criticisms or counterarguments regarding the discriminatory nature or hidden trade restrictions within the sanctions could be adequately addressed and evaluated following the Chapeau requirements by the WTO Dispute Settlement Body.

To justify the evidentiary matter under Article XX, concrete and substantiated evidence must demonstrate that the measures taken are necessary and non-discriminatory. The interpretative notes to Article XX highlight the requirement for a genuine and sufficiently serious public morals concern. The Appellate Body Report in the United States – Gambling case further emphasizes the need to establish a genuine connection between the measures and the objective of protecting public morals. Thus, a strong evidentiary basis, including factual data, documented violations, and a thorough analysis of the measures’ impact and necessity, is essential to establish their legitimacy under Article XX.

Conclusion

This blog has examined the legality of sanctions on Russia under the WTO’s Public Morals Exception, emphasizing the importance of considering public morals and human rights within international trade laws. Future research could focus on the interplay between the Public Morals Exception and other specific exceptions, clarifying their scope and potential overlaps. Additionally, further analysis is needed to explore the evidentiary requirements and burden of proof for invoking Article XX(a), ensuring a thorough assessment of the measures’ necessity and proportionality. Case studies and comparative analyses of similar instances would contribute to a more coherent understanding of invoking the Public Morals Exception. By addressing these research gaps, scholars can enhance the consistency and predictability of decision-making in justifying sanctions under the WTO’s Public Morals Exception.