Abstract

This paper examines the General Agreement on Trade in Services (GATS), which is one of the World Trade Organisations free trade agreements. In particular, I examine the extent to which the GATS unduly restricts the scope for national democratic choice. For purposes of illustration, I focus on the domestic health system as the subject of policy choice. I argue that signatories to the GATS effectively acquire a constitutional obligation to maintain a domestic health sector with a certain minimum degree of privatisation. Like constitutional obligations, the restrictions the GATS imposes on the freedom of future generations to structure their domestic health sector are (i) very difficult, though not strictly impossible, to alter; and (ii) not chosen in any ordinary sense by the subject generation. To gain democratic legitimacy, therefore, the relevant provisions of the GATS must pass some higher standard of democratic scrutiny, such as ratification by a super-majority. Ordinary legislative ratification does not suffice.