‘Public Morality’: A Pursuit in Legitimising the WTO via GATT Article XX(a) - Lucas Adrian Brauns
This is the second in our series of outstanding LLM Dissertations from the Class of 2022. In this dissertation, author Lucas Brauns explores the shift in international economic law over the last half century, focussing on Article XX(a) of the General Agreement on Tariffs and Trade to explore issues around the legitimacy of the World Trade Organisation.
Abstract
International economic law has undergone substantial change over the past fifty years, incrementally transitioning from a positivist/ voluntarist to a pluralist international economic law system, i.e., international economic law is no longer dictated by states’ will alone. International organisations, such as the World Trade Organization, have changed to reflect these developments as well. These changes have raised new legitimacy concerns as previously untouched domestic regulations are now increasingly subject to international globalising forces, resulting in states’ loss of discretion over deeply social/political elements of domestic politics, with little transparency concerning the legitimacy with which these new international governing policies are made.
Jurisprudence found within the World Trade Organization Dispute Settlement Body has recently developed, via Article XX(a) of the General Agreement on Tariffs and Trade, a carte blanche exception with which states can protect themselves against some of these globalising trends. Resulting in China, for example, being allowed to continue maintaining a state monopoly over the import of audiovisual products and the European Union being allowed to continue banning the trade of seal products; state practices conventionally understood as contrary to international trade liberalisation. Despite Article XX(a) receiving a controversially broad scope, and returning a degree of political discretion back to states, it is unlikely that Article XX(a) is capable of addressing the various legitimacy concerns raised throughout this dissertation.
This is due to Art XX(a) not actually addressing any of the systemic legitimacy issues, but is rather a simple pass for when the WTO framework becomes too rigid, thus preserving the system generally and unchanged. It can be argued, however, that details found in recent Article XX(a) case law may have the potential to challenge future disputes in such a way, that much-needed amendments to Article XX may become necessary. For example, the judgment in EC - Seal Products potentially triggers virtually every domestic regulation against the backdrop of free markets. This development could be conducive in bringing about reform as the influx of Art XX cases would not only produce an extensive list of case law from which to develop Art XX jurisprudence, but more importantly, it would reflect within the DSB what academics have already described for the past 20 years, namely the pluralist nuance that non-tariff barriers to trade disputes require.
In so doing, the DSB would be inclined to gradually reform Art XX to better reflect states’ needs as a matter of institutional necessity. Art XX(a) can be viewed as a catalyst through which states are given the opportunity to routinely challenge the GATT/WTO on matters of domaine réservé to synthesise domestic values with IEL through international competition.
You can read the full dissertation at: https://www.gla.ac.uk/schools/law/students/publications/
About the author
I’m a recent graduate from the University of Glasgow and the Leuphana University of Lüneburg with a double Master of Laws degree in International Economic Law. Despite being given very broad freedoms concerning which topics I could choose for my dissertation, I decided to maintain a strong connection to the various themes and challenges experienced throughout my two-year LLM programme. Inspired by the German concept of ‘roter Faden’, I aspired to have my dissertation laced with key elements from all four semesters, thus topping off the learning outcome in a most satisfying way.
After seven years of continuous study, I am currently enjoying some rest and recuperation with my family in Germany. I have been lucky to find various job opportunities thematically close to my LLM specialisation. I am looking forward to taking further steps in this field in the Spring or Summer.
