particular interests at stake, a panel should then turn to the other factors that are to be
‘‘weighed and balanced.’’
A panel then considers two main factors as it continues in its determination of a measure’s
necessity: ‘‘One factor is the contribution of the measure to the realization of the ends pursued
by it; the other factor is the restrictive impact of the measure on international commerce.’’
37
According to this interpretation, it is the WTO panel itself that is to determine whether a
member’s exceptions are justified. Although a panel pays deference to a member’s decision
to invoke Article XIV,
38 the panel makes its own assessment of the importance of the objective
and evaluates the measure’s effectiveness in accomplishing that objective when balanced
against the measure’s restrictive effect on trade.
39
Extrapolated, the implication is that future trade panels could rule illegal a member’s filtering
practices if the measures conflicted with another member’s trade interest. So, for example,
China’s use of filters to prevent its citizens from accessing Web sites displaying the word democracy could be struck down if a panel did not find the purpose of the measure compelling,
or if it found the approach too heavy-handed given the negative effects on trade.
In light of these WTO provisions, one could argue that the multilateral trading system supports freedom of expression. While a nice effect, it is important to bear in mind that the WTO’s
competence is in the area of market access. In this particular international context, the value
that governments have embraced and empowered panels to adjudicate concerns open trade,
and the effects on freedom of expression are mere offshoots.
To the degree that the institution and its members’ acting through it delve into these social
questions, they do so reluctantly. For one reason, the WTO Dispute Settlement Body has as
its purpose to handle disputes relating to market access; a member is not supposed to bring
a claim for the sake of protecting human rights, and indeed government agencies responsible
for conducting trade policy are typically focused on economic relationships.
Practically speaking, for a filtering case to come to the WTO, a company would need to lobby its home government to bring the case on the basis that another government’s measures
were hurting the home country’s economic interests.
40 However, if a company were hurt economically by the host country’s measures, that economic harm might be due to damage suffered from bad public relations in another market. It would be challenging for a home-country
government to argue that the host government’s measures directly caused these side effects,
and it would be difficult to prove the amount of injury in monetary terms.
41 Moreover, the
home-country government might not wish to spend its international negotiating capital and
dispute settlement resources on such a case.
Although a government might not be inclined to bring such a case before the WTO Dispute
Settlement Body, it is feasible that in the future such a hearing might not be so dependent on
a government’s decision to bring it. For several years now experts have argued that private
parties deserve to have standing before tribunals for WTO-related matters.
42 Such an arrangement could result in a deluge of dispute settlement cases, as states would no longer
Filtering and the International System
89
‘‘weighed and balanced.’’
A panel then considers two main factors as it continues in its determination of a measure’s
necessity: ‘‘One factor is the contribution of the measure to the realization of the ends pursued
by it; the other factor is the restrictive impact of the measure on international commerce.’’
37
According to this interpretation, it is the WTO panel itself that is to determine whether a
member’s exceptions are justified. Although a panel pays deference to a member’s decision
to invoke Article XIV,
38 the panel makes its own assessment of the importance of the objective
and evaluates the measure’s effectiveness in accomplishing that objective when balanced
against the measure’s restrictive effect on trade.
39
Extrapolated, the implication is that future trade panels could rule illegal a member’s filtering
practices if the measures conflicted with another member’s trade interest. So, for example,
China’s use of filters to prevent its citizens from accessing Web sites displaying the word democracy could be struck down if a panel did not find the purpose of the measure compelling,
or if it found the approach too heavy-handed given the negative effects on trade.
In light of these WTO provisions, one could argue that the multilateral trading system supports freedom of expression. While a nice effect, it is important to bear in mind that the WTO’s
competence is in the area of market access. In this particular international context, the value
that governments have embraced and empowered panels to adjudicate concerns open trade,
and the effects on freedom of expression are mere offshoots.
To the degree that the institution and its members’ acting through it delve into these social
questions, they do so reluctantly. For one reason, the WTO Dispute Settlement Body has as
its purpose to handle disputes relating to market access; a member is not supposed to bring
a claim for the sake of protecting human rights, and indeed government agencies responsible
for conducting trade policy are typically focused on economic relationships.
Practically speaking, for a filtering case to come to the WTO, a company would need to lobby its home government to bring the case on the basis that another government’s measures
were hurting the home country’s economic interests.
40 However, if a company were hurt economically by the host country’s measures, that economic harm might be due to damage suffered from bad public relations in another market. It would be challenging for a home-country
government to argue that the host government’s measures directly caused these side effects,
and it would be difficult to prove the amount of injury in monetary terms.
41 Moreover, the
home-country government might not wish to spend its international negotiating capital and
dispute settlement resources on such a case.
Although a government might not be inclined to bring such a case before the WTO Dispute
Settlement Body, it is feasible that in the future such a hearing might not be so dependent on
a government’s decision to bring it. For several years now experts have argued that private
parties deserve to have standing before tribunals for WTO-related matters.
42 Such an arrangement could result in a deluge of dispute settlement cases, as states would no longer
Filtering and the International System
89