Volume 52 (2018) / Issue 6
Gillian Moon, 'A FundamentalMoral Imperative: Social Inclusion, the Sustainable Development Goals and International Trade Law After Brazil-Taxation.' (2018) 52 Journal of World Trade, Issue 6, pp. 995–1017
In 2017, the WTO Panel in Brazil-Taxation held that a Brazilian program promoting ‘social inclusion’ was designed to protect ‘public morals’ within GATT Article XX(a). The Panel also found, however, that the program was unnecessarily discriminatory and, hence, not justified under that Article Some alarm has been raised that an exceptionally low threshold has been applied by the Panel for identifying a ‘public morals’ measure. Those alarms are unfounded, given the circumstances of the particular dispute. Instead, the Panel’s report indicates a way for trade law to adapt to fundamental demographic changes occurring since 1995. Two-thirds of the world’s more than one billion poor now live in middle-income countries (MICs) and are predominantly ethnic minorities. Forces of social and economic exclusion have obstructed their benefiting from the economic growth which has raised standards of living around them. Action by the MICs involved to lift these communities out of poverty will include assisting them to build enduring economic bases. This is likely to require affirmative action measures favouring local minority producers and suppliers in those MICs. At present, there is little appetite among the industrialized countries for tolerating trade-affecting, affirmative action measures in prospering MICslike India and China. Yet the global community has pledged, in Goal 1 of the Sustainable Development Goals, to halve global poverty, and eradicate extreme poverty, by 2030 – a Goal which has been described as the moral issue of our time. Achieving that Goal depends on internal action taken by the MICs involved to reduce social and economic exclusion. The public morals exception in WTO law (and in most trade agreements) offers a way for trade law to support legitimate domestic measures which are necessary for social inclusion and poverty reduction.
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