Roger Alford has this brilliant piece in Opinio Juris on the scope and limitations of the "public morals" exception in Article XX(a) of the GATT contextualising it in the aftermath of the Seals dispute case. He rightly observes:
"Fifth, the public morals exception may become the new battleground for WTO litigation. Rather than consistently ignoring this exception and rushing to litigate Article XX(b) (protection of human, animal, or plant health or life) or Article XX(g) (protection of exhaustible natural resources), the new litigation strategy may be to identify how a trade restriction advances ethical concerns of the Member State. In the future, we may see IP piracy restrictions justified as a reflection of public concern about the morality of stealing, a carbon tax implemented out of moral concerns for the ethics of sustainable development, and restrictions on any number of Chinese products justified out of concern that Chinese workers are subjected to a mandatory one-child-per-family policy implemented through forced abortions. After EU–Seal Products the public morals argument is open for creative interpretation."
While the public moral exception can serve legitimate public concerns, can it become a tool for protectionist policies? Would it be used in the coming decade to justify import restrictions, including import bans of products made "immorally" or "unethically" from national standards? Though import bans seem less likely to be justified due to the inherently discriminatory nature of the measure since the local product is not prohibited, what if it is justified due to the nature of making the foreign product that is against a country's public morality"? Is there is possibility of "subjectivity" being justified in the garb of "objective" public morality? Will trade rules benefit or be a victim of this widely worded exception?
As in many other areas in international trade law, more shades of grey here than black or white.