“Does the GATS undermine democratic control over health?”

Gopal Sreenivasan

University of Toronto

gopal.sreenivasan@utoronto.ca

Abstract

This paper examines the General Agreement on Trade in Services (GATS), which is one of the

World Trade Organisation’s 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 (i) are very difficult,

though not strictly impossible, to alter; (ii) are not chosen in any ordinary sense by the subject

generation; and (iii) concern matters of fundamental importance. 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.