The Problem with Public Morals

Abstract

Abstract Empirical study reveals that the methods employed for identifying public morals and societal values in international dispute settlement seldom capture them directly. Rather what we see are governmentally mediated representations of these morals and values. Accepting such representations masks diversity in moral views and societal values within populations, assumes that governments properly represent populations on matters of conscience, and may endorse the characterization of social policies as an embodiment of public morality even where they are in tension with accepted human rights. The underlying difficulty appears to be that public morals defences entered international economic law at a time predating the current highly legalized dispute settlement processes with which we are now familiar, and that they are unsuited by nature to international adjudication in its present form. Contrastingly, the idea of legitimate public policy objectives featuring in certain recently negotiated regional free trade agreements poses fewer concerns of this nature.