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장학수 법무부 국제법무정책과 2015 통상법률 Vol.- No.124
The Public Morals Exception Clause of GATT ArticleⅩⅩ was also founded on the notion that countries should not be forced to liberalize trade when doing so would threaten their public morality in the WTO System founded on the Principle of nondiscrimination. It grants states sufficient autonomy to regulate on moral grounds while preventing states from abusing that power to enact protectionist measuring in disguise. But the GATT Article ⅩⅩ remained unarticulated its scope and meaning, which are lack of Textual Clarification, lack of Judicial Clarification, Clamoring for a Broader Interpretation etc. The WTO finally discussed the public morals clause in 2005 in the U.S.-Gambling case. The Case interpreted dynamically arguing the scope can expand over time as issues of public morality emerge. U.S.-Gambling decision appeared to reject both the pure unilateralist and the pure universalist approach on the concept of the public morals for a legal invocation of the public morals exception. It simply demanded that a public moral be “prevailing”. The most important doctrinal question left unaddressed by U.S.-Gambling is the issue: does the public morals exceptions clause cover only restrictions enacted by a government to protect its own citizens? Or can it encompass extraterritorial application? By recognizing the right of a country to use trade-restrictive measures to protect its own citizens, U.S.-Gambling explicitly endorsed TypeⅠrestrictions under the public morals clause. However the decision left almost all of the critical doctrinal questions-ranging from “how is the clause to be interpreted” to “who can the clause be used to protect”-unanswered.