Focusing on the example of the General Agreement on Trade in Services (GATS), this Article begins by describing an important analogy between domestic Bills of Rights and enforceable international trade agreements. Both effectively disable the majority in later generations from certain exercises of its domestic legislative power. While there is some kind of democratic presumption against disabling the majority in any generation from exercising domestic legislative power, various argumentative strategies have been employed to defeat this presumption in the domestic constitutional case. This Article reviews these strategies and argues next that they cannot be generalized to the case of international trade agreements. Hence, there remains a democratic presumption against the effective disabilities that the GATS imposes on majorities in later generations in signatory jurisdictions. In the particular case of the health or education sectors, this Article concludes, more strongly, that the effective disabilities to exercise domestic legislative power imposed by enforceable international trade agreements are substantively unjustified. In these respects, such agreements are not morally binding on later generations.
Does Today's International Trade Agreement Bind Tomorrow's Citizen?,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol81/iss1/8