social provision argued against interpreting other apparently wide provisions

Social provision argued against interpreting other

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'social' provision argued against interpreting other apparently wide provisions as including broad social provisions within their ambit. cxii May a state legitimately take measures under the exceptions provisions of the GPA outside of its borders? Even before the decision in US-Gambling, there had been considerable shifts in the GATT/WTO jurisprudence. Tuna I objected to the outward-directed dimension of the measure. In Tuna II, however, the Panel can be taken as implying that extra territorial measures may sometimes be justified under Article XX of GATT. In Shrimp the Appellate Body’s left open the question whether there is a jurisdictional limitation implied in Art. XX(g) and simply noted that there was a close enough “nexus” between the objectives pursued by the United States (the protection of sea turtles) and the extension of U.S. jurisdiction, since all the species of sea turtles protected were also present in U.S. waters. cxiii The Appellate Body did not require that the protected good in its entirety be confined in the jurisdiction of the defending state. In the case of the “public morals” defence, there are further questions to ask. Who constitutes the “public” whose morals or order is at issue? There are principally three possible answers: The public of the targeted state, the public of the applying state, or the global public. In the first case, it would be necessary to argue that the trade measure at issue does really help the public of the targeted state; in the second case, the applying state would only have to assert that its own population is concerned, which should be easy; and in the third case, one would have to make an argument that the measure is in defence of globally accepted standards. There has in the past been considerable academic support for limiting Article XX’s extra-territoriality to international human and core labour rights norms. cxiv We turn, next, to consider the “public order” exception in GPA Article XXXIII. Although Article XX of GATT is similar to Article XXIII of the GPA 1994, there are textual differences. In particular, there is no mention in GATT of 'public order' or 'public safety' as exceptions in Article XX of GATT, unlike in Article XXIII of the GPA 1994. Does the inclusion of the 'public order' provision in the GPA provide an exception that is even wider than “public morals”. To understand the full significance of the public order exception, we need to appreciate
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22 that the French text of the GPA 1994 refers to 'ordre public' in this context. 'Public order/ordre public' is now a well-established concept in many civil law jurisdictions and in European Community law, and in many international treaties. In these contexts, 'public order' refers to the basic values of a domestic legal system encompassing values that are moral, political, or economic in nature. 'Ordre public' originated in French law as a rationale for invalidating private contracts deemed to conflict with fundamental principles of domestic law.
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