What sorts of things are Public Morals? A Liberal Cosmopolitan Approach to Art XX GATT

Existing theories of WTO law cannot adequately explain the form or content of the GATT exceptions, including in particular Article XX(a) Public Morals. Nor, in consequence, have they been able satisfactorily to answer the interpretive questions they raise. I argue we can understand Article XX in terms of self-determination. This, however, requires an account of self-determination as a political and moral value, and the choices it mandates peoples make for themselves. Drawing on debates in contemporary political philosophy, I distinguish three categories of argument for self-determination: intrinsic, expressive and instrumental. I draw out the implications of each for the scope of the choices a self-determining community must make for itself, deriving therefrom an account of the political and moral value of self-determination in trade regulation. I use that account to reconstruct Article XX, both explaining the individual provisions thereof, and suggesting how these might be developed and interpreted. I conclude by examining Article XX(a) in detail, highlighting the interpretive questions public morals pose, and the ways understanding Article XX in terms of self-determination suggests these should be answered.