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'social' provision argued against interpreting other apparently wide provisions as including broadsocial provisions within their ambit.cxiiMay a state legitimately take measures under the exceptions provisions of the GPAoutside of its borders? Even before the decision in US-Gambling, there had been considerableshifts in the GATT/WTO jurisprudence. Tuna I objected to the outward-directed dimension ofthe measure. In Tuna II, however, the Panel can be taken as implying that extra territorialmeasures may sometimes be justified under Article XX of GATT. In Shrimp the AppellateBody’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 theUnited States (the protection of sea turtles) and the extension of U.S. jurisdiction, since all thespecies of sea turtles protected were also present in U.S. waters.cxiiiThe Appellate Body did notrequire that the protected good in its entirety be confined in the jurisdiction of the defendingstate. In the case of the “public morals” defence, there are further questions to ask. Whoconstitutes the “public” whose morals or order is at issue? There are principally three possibleanswers: The public of the targeted state, the public of the applying state, or the global public. Inthe first case, it would be necessary to argue that the trade measure at issue does really help thepublic of the targeted state; in the second case, the applying state would only have to assert thatits own population is concerned, which should be easy; and in the third case, one would have tomake an argument that the measure is in defence of globally accepted standards. There has inthe past been considerable academic support for limiting Article XX’s extra-territoriality tointernational human and core labour rights norms.cxivWe 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 textualdifferences. In particular, there is no mention in GATT of 'public order' or 'public safety' asexceptions in Article XX of GATT, unlike in Article XXIII of the GPA 1994. Does the inclusionof the 'public order' provision in the GPA provide an exception that is even wider than “publicmorals”. To understand the full significance of the public order exception, we need to appreciate
22that the French text of the GPA 1994 refers to 'ordre public' in this context. 'Public order/ordrepublic' is now a well-established concept in many civil law jurisdictions and in EuropeanCommunity law, and in many international treaties. In these contexts, 'public order' refers to thebasic values of a domestic legal system encompassing values that are moral, political, oreconomic in nature. 'Ordre public' originated in French law as a rationale for invalidating privatecontracts deemed to conflict with fundamental principles of domestic law.