Lessons from the Case Law on the Public Moral Exception: Halal and the Debate for Policy Space

This article considers to what extent it is possible for World Trade Organization (WTO) Members to justify domestic measures on the basis of the General Agreement on Tariffs and Trade (GATT) Article XX(a), i.e., how Members’ right to regulate for moral purposes is balanced under the WTO general exception clause. To this end, the article provides an overall analysis of eight cases related to public morals and looks into religiously motivated measures, particularly those concerning halal products. The research findings reveal that the concept of public morals has remained stagnant in case law evolution. Attempts to justify this kind of exception under GATT rules have consistently fallen short, largely because of the stringent requirements outlined in the general structure of GATT Article XX. The article identifies critical (the necessity and chapeau tests) and non-critical (the policy objective test) aspects of GATT Article XX(a) with the aim of explaining, on the basis of the case law analysis, what the real burdens are for the recognition of policy space for morals-related measures under this exception clause and its overall relevance in the WTO system.