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Human Rights Within a Multilayered Constitution: The Example of Freedom of Expression and the WTO

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This article focuses on the interface of the WTO with a quintessential civil and political right, the right to freedom of expression. It analyses both potential synergies and conflicts between WTO law and free speech. Since the WTO operates within a multilayered governance structure, the article adopts a comparative approach, examining the protection and relationship of free speech and free trade on the domestic, regional and global layers. Building on these findings, the article argues that the WTO judiciary should interpret exception clauses broadly and grant members sufficient leeway to implement free speech-enhancing policies. Such “defensive uses” of freedom of expression should be admissible even if they are not underpinned by a universally shared conception of free speech. By contrast, “offensive” uses of freedom of expression require a more cautious approach. They should preclude the justification of a WTO inconsistent measure in two cases: firstly, when it was found in breach of free speech by an international human rights monitoring body, and secondly, when it consists in a policy of state censorship and repression targeting political speech, broadly defined, and thus contravenes customary international law. Both defensive and offensive uses of free speech are ultimately supportive of the WTO’s legitimacy and mandate.


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