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BALANCING TRADE LIBERALIZATION AND PUBLIC HEALTH PROTECTION
UNDER WTO LAW
Fayzullaeva Ozoda Baxrom qizi
Master’s candidate in International Law and Human Rights at Tashkent State University of Law.
https://doi.org/10.5281/zenodo.15495065
Abstract. This study examines the complex connection between member states and the
World Trade Organization (WTO), with a particular emphasis on how public health initiatives
are implemented inside national borders. It looks at the laws that support WTO regulation of
state members, such as General Exception Clauses in WTO agreements like GATT Article XX,
TRIPS Article 8 and others, which permit the implementation of public health-related measures
without unduly impeding global commerce. The adaptability of TRIPS laws and regulations is
emphasized in the Doha Declaration on TRIPS and Public Health. The research also examines
several cases in which state laws that violated their charters challenged WTO trade restrictions.
With an emphasis on the need for a careful balance between international trade obligations in
WTO agreements and public health protection, the article attempts to present a thorough
analysis of the link between WTO laws and public health legislation.
Key words: WTO, public health, International Law, TRIPS agreement, GATT Article
XX(b), trade liberalization, health security, access to medicines.
I.
Introduction
The World Trade Organization (WTO), which was founded in 1995, is a huge
organization tasked with overseeing trade-related matters globally and making decisions about
what, in essence, constitutes a legitimate trade in accordance with its by-laws. In order to
facilitate trade in this globalized world and expedite the process generally so that GDPs can
benefit from this streamlined process, the member states that have signed up for the organization
largely agree to be bound by the rules and regulations that have been developed by the
organization, after consulting with all signatories, in all matters pertaining to trade and
commerce. Being a member of the World Trade Organization (WTO) benefits states all over the
world since it facilitates trade and makes increased reliance on one another a sign of progress
rather than weakness. The WTO's progressive regulations are solely responsible for this.
However, some member states are not always favored by these restrictions, and they find
themselves in a tough situation when things go wrong. Although the purpose of these restrictions
is to help them, in practice, things do go wrong for them. The same is true of the assumption that
the policy drafters of different signatories to the WTO rules and guidelines hold that they are not
allowed to create public health policies, which is fatal to the state's progress. On the other hand,
the WTO neither permits nor prohibits any state from enacting legislation pertaining to public
health. Instead, they have established several strategies for governments to enable them carry out
commerce in a way that does not put the general public at risk while nevertheless carrying out
vital trade for public health.
However, one question that is being raised is how the WTO has created rules to protect
the public health advancements of one state while preserving the extensive and interconnected
trade policies and without affecting the regulations and laws of other states that are involved in
the trade and that were developed around the WTO. Examining this aspect is necessary to
comprehend how the WTO is implementing its trade and commerce policies while permitting the
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states to implement their own set of regulations pertaining to public health. In fact, this paper
seeks to more thoroughly explore the laws created by the states in the relevant field.
II.
Methodology
The methodology of this research begins with an extensive literature review, drawing on
a variety of international legal, normative, and academic sources. This analysis primarily draws
on several WTO cases as well as pertinent books, academic articles, and commentary. The
arguments were strengthened with the use of additional reference sources, such as reports and
websites.
There is a wealth of academic research about the WTO dispute resolution process. This
essay, however, will concentrate on how the WTO's jurisprudence developed the "exceptions" to
the non-discrimination principle in order to strike a balance between member state sovereignty,
commerce, the environment, and health.
III.
The WTO Legal Framework and Public Health
International trade liberalization, the process of removing barriers to trade across borders
in goods and services, was encouraged on the grounds that free trade would guarantee political
stability, encourage investment, and create jobs, all of which would boost economic growth and
improve population health.
1
These justifications served as the foundation for the adoption of
trade liberalization as the dominant economic framework, which has been supported and
frequently enforced by global financial institutions.
2
The WTO is in charge of negotiating legally
binding agreements among its 166 member nations and which together account for more than
98% of global trade in goods and services. This allows the WTO to promote and oversee the
multilateral liberalization of global commerce in goods and services.
3
Historically, trade has long been associated with public health. The earliest "quarantine"
procedures to combat infectious illnesses were implemented on the basis of economic efficiency.
The purpose of quarantine at the time was also a mode of transportation for commercial
ships. The World Trade Organization (WTO), as a successor to the General Agreement on Tariffs
and Trade (GATT) of 1947, has already been a cornerstone of the world economy.
4
Coordinating
and advancing global free trade is its primary goal. Free trade, however, occasionally has a
detrimental effect on the administration of public health. In the case of monopolies, unrestrained
free trade would increase the unequal distribution of natural resources among countries,
prompting monopolists to disregard public health in pursuit of commercial gain. For instance,
TRIPS is biased to safeguard the interests of wealthy nations due to the disparity in the security
of patent rights and drug access between developing and developed nations. Drug patents create
trade obstacles that prevent people with illnesses like AIDS from accessing quality treatment,
which has an impact on public health. There is still a significant disparity in public health
governance between rich and poor nations, notwithstanding the Doha Declaration's later
clarification that it strongly supports human interests when they clash with economic gain.
1
World Health Organization and World Trade Organization (2002) WTO agreements & public health: a joint study
by the WHO and the WTO Secretariat. Geneva: World Health Organization/World Trade Organization.
2
San Sebastian M, Hurtig AK, Rasanathan K (2006) Is trade liberalization of services the best strategy to achieve
health-related Millennium Development Goals in Latin America? A call for caution. Rev Panam Salud Publica 20:
341346.
3
World Trade Organization (2019). What is the WTO? - Who we are. [online] Wto.org. Available at:
https://www.wto.org/english/thewto_e/whatis_e/who_we_are_e.htm
4
World Trade Organization (2024). The WTO. [online] World Trade Organization. Available at:
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Furthermore, the WTO appears to have exacerbated the gap by asserting that its
governance function is insufficient since it prioritizes "profit above all else."
Although trade is the WTO's primary objective, its core principles remain centered on
human welfare, such as " promoting the economic development of developing countries and
guaranteeing their participation in the expansion of global commerce " and "promoting people's
improvement of living standards."
5
Public health concerns may be exempt from free trade under
the WTO's general rules, such as the "General Exceptions" to Article 21 of the General
Agreement on Tariffs and Trade. By integrating the policies and guidelines of other international
organizations into the numerous treaties to which it is a party, the WTO also resolves the dispute
between public health governance and free commerce. The principles for international
cooperation are also stated out in detail in the third clause of the SPS Agreement. In an effort to
resolve any disputes, the WTO also constantly solicits advice and information from other
international organizations. Additionally, via constructive dialogue and efficient collaboration,
the World Health Organization (WHO) and WTO jointly control public health concerns.
However, the majority of impoverished nations continue to be at a disadvantage due to
the WTO system, which has exacerbated the disparity in the governance of public health and the
allocation of trade advantages. Eventually, the discrepancy will result in adverse externalities
related to global health governance. The supply of improved public health goods and a reduction
in pharmaceutical tariff barriers are only two examples of the increased role that developed
nations among the States parties should have in public health governance.
6
WTO members must abide by a number of general regulations as stipulated in the
General Agreement on Tariffs and Trade (GATT 1994). The fundamental tenet of WTO
regulation is nondiscrimination. Every WTO member must be treated equally with regard to all
imported goods, according to the Most-Favored-Nation (MFN) principle. A WTO member must
treat local and imported commodities equally under the national treatment principle. Regarding
market access for products, all members must keep their planned obligations on tariffs and
should not impose tariffs beyond the set levels unless renegotiated otherwise. Furthermore, a
WTO member is not permitted to place quantitative restrictions (QRs) on access to market for
commodities. Additionally, each member should make sure that its import licenses and other
non-tariff barriers (NTBs) do not unnecessarily hinder trade. However, if they meet specific
requirements, WTO members may depart from these duties in certain extraordinary situations.
Health policies, such as rules governing food safety, must not impede commerce without
a valid reason, according to trade standards. Health advocates fear that these limitations
unnecessarily restrict the ways in which governments safeguard health. International trade law
provides two main ways to balance these interests. The legislation acknowledges a nation's right
to health protection, but it stipulates that health measures must be grounded in research and
prevent trade restrictions beyond what is required to mitigate threats. Furthermore, trade
agreements have exclusions that allow a government to disregard trade-liberalizing principles,
such as the restriction on export limits, if necessary to safeguard public health.
7
5
Jiaheng, D. (2021). State Obligations in Public Health Governance. E3S Web of Conferences, 253, p.01027.
doi:https://doi.org/10.1051/e3sconf/202125301027.
6
SEA-HSD-244 Distribution: General Globalization, Trade and Public Health: Tools and Training for National
Action World Health Organization Regional Office for South-East Asia New Delhi. (2000).
7
Council on Foreign Relations. (n.d.). Trade Law Confronts an Exceptional Global Health Crisis | Think Global
Health. [online] Available at:
https://www.thinkglobalhealth.org/article/trade-law-confronts-exceptional-global-
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Intellectual property (IP) norms included into trade agreements have a direct influence
on health regulation. According to international trade law, governments must preserve their
intellectual property, including patents.
8
Previously, such responsibilities raised health concerns
since patent protection might restrict access to pharmaceuticals and vaccinations. Trade law
provides exceptions in this case as well, acknowledging a nation's authority to supersede patent
rights by, for instance, a mandatory license to expand access to a patented drug, such
antiretrovirals for HIV/AIDS treatment. Both in the broad rules governing imports and exports
and in the context of intellectual property, trade law exceptions allow governments to take
immediate health-based regulatory actions to ensure that their citizens have access to food,
medication, vaccinations, and medical equipment.
IV.
WTO Agreements Relevant to Health Regulation
a)
GATT / GATS agreements
Article XX of the General Agreement on Tariffs and Trade (GATT) 1994 and Article XIV
of the General Agreement on Trade in Services (GATS) provide general exceptions, which allow
a WTO member to perform actions that would otherwise be prohibited under GATT 1994 rules,
provided that they meet certain requirements.
9
Article XX of the GATT 1994 creates the general
exception for trade in goods, allowing WTO members to take actions to protect public health or
plant and animal life. The measures must not, however, be intended to impose unjustified or
unreasonable trade barriers between countries with similar situations. WTO parties may be
excluded from WTO regulations in a variety of unique situations, as listed in Article XX on
General Exceptions.
10
However, any action performed under Article XX must be in accordance
with the Chapeau, or introductory phrase, which forbids the misuse of exceptions. The Appellate
Body (AB) Report has said that the exclusions in Article XX-paragraphs (a) to (j) apply to all of
the GATT 1994's duties, including not just the MFN and national treatment principles but also
others.
11
Any measure that violates GATT 1994 must pass a two-tier test in order to be justified
under Article XX:
Step 1: The measure at issue must be justified under one of the specific exceptions - sub-
paragraphs (a) to (j) - stated under Article XX, each of which concerns distinct purposes and has
various conditions; and,
Step 2: The measure must be administered in accordance with the provisions of the
Chapeau of Article XX. (US – Gasoline, Appellate Body Report, p. 22)
The
US-Gasoline
case demonstrates how the meaning of general exclusions developed in
WTO disputes. In this dispute, Brazil and Venezuela challenged the United States' decision to
impose more strict reformulated gasoline requirements on overseas refiners than on domestic
ones. The US Gasoline rule, promulgated by the Environmental Protection Agency (EPA),
permitted the sale of gasoline with defined cleanliness to customers. The United States
maintained that such restrictions would reduce air pollution in the country.
8
World Trade Organisation (2017). WTO | Intellectual Property (TRIPS) - TRIPS and Public Health. [online]
Wto.org. Available at:
https://www.wto.org/english/tratop_e/trips_e/pharmpatent_e.htm
9
Rabiul, M. and Hasan, T. (2018). Role of WTO in Balancing Trade Environment Public Health and Sovereignty.
Seventh International Conference on Advances in Social Science Management and Human Behaviour SMHB 2018,
pp.43–47. doi:https://doi.org/10.15224/978-1-63248-160-3-25.
10
General
Exceptions,
Article
XX,
GATT
(1992),
chrome-
extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.wto.org/english/res_e/booksp_e/gatt_ai_e/art20_e.pdf
11
US-Standards for Reformulated and Conventional Gasoline,
WT/DS2/AB/R, 29 April 1996 (US-Gasoline).
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This rule implementing the Clean Air Act sought to reduce air pollution, which is harmful
to human health.
The complainants argued that such an action violated GATT Article III, which guarantees
equitable treatment of both local and foreign products.
12
Furthermore, the complainants argued
that this rule is not justified as a general exemption under Article XX of GATT 1994. In the
history of the WTO, the Gasoline Case is noteworthy because the AB established a connection
between the Chapeau and GATT Article XX exclusions by adopting a two-tier test. The AB came
to the conclusion that as the US regarded imported gasoline "less favorably" than local gasoline,
its gasoline regulation violated GATT Article III.
13
The AB rejected the Panel's logic and came to the conclusion that the US gasoline rule
complied with Article XX(g) criteria. However, the AB determined that the provision was still
unreasonable under Article XX since, according to the Chapeau of Article XX, it constituted
"unjustifiable discrimination" and concealed a ban on foreign commerce. The US modified its
emission standards in August 1997 to conform to the AB's decision in the case.
b)
Technical Barriers to Trade (TBT) Agreement
As to the TBT Agreement, every WTO member retains the authority to impose trade
restrictions in order to achieve "legitimate objectives." These justifiable goals include keeping
people safe and healthy, protecting the health and welfare of animals and plants, protecting the
environment, safeguarding national security interests, and stopping dishonest business activities.
The TBT Agreement covers both mandatory ("technical regulations") and optional
("standards") product requirements. Whether at the national or regional level, it encompasses
such obligations created by public or private bodies.
14
The implementation of international
standards is strongly encouraged by the TBT Agreement. However, members may decide
otherwise if they believe that implementing that global norm would not be suitable for achieving
certain justifiable goals.
The
EC-Asbestos
case is a significant WTO decision that maintained France's asbestos
ban. The dispute was begun when Canada brought France to the WTO challenging France's
asbestos prohibition. (Decree No. 96-1133). The asbestos prohibition was implemented in order
to safeguard human life from the harmful effects of asbestos.
The AB maintained the panel's conclusion that the French ban was appropriate under
GATT Article XX(b), which grants a general exemption to WTO regulations for actions required
for human health protection, and that the measure met the requirements of Art. XX
chapeau because it did not result in "arbitrary or unjustifiable discrimination" or constitute a
"disguised restriction on international trade." The AB, however, overturned the panel's
conclusion that asbestos and other, less hazardous substitute fibres are "like" substances under
Article III:4 of the GATT and need to be treated equally on the French market. The Appellate
Body report concluded, "We strongly believe that information on the health hazards linked to a
product may be relevant for evaluating the 'likeness' under Article III:4 of the GATT 1994."
15
c)
Sanitary and Phytosanitary Measure (SPS) Agreement
12
Ghafur Hamid, A. and Mahmod, N.A.K.N., 2008. The WTO rules versus multilateral environmental agreements:
the search for reconciliation. Macquarie J. Int'l & Comp. Envtl. L., 5, p.57.
13
Kapterian, G., 2010. A Critique of the WTO Jurisprudence on‗Necessity‘. International & Comparative Law
Quarterly, 59(1), pp.89-127
14
WHO, W., 2002. WTO agreements and public health. Geneva, World Health Organization and the World Bank
15
Report of the Appellate Body: European Communities — Measures Affecting Asbestos and Asbestos-Containing
Products, WTO Doc WT/DS135/AB/R (12 March 2001).
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The SPS Agreement allows nations to limit trade in order to safeguard food safety and
protect human life from plant- or animal-borne illnesses (zoonoses). The SPS agreement
recognizes members' ability to choose the amount of health protection that they think appropriate
and assures that an SPS is not a superfluous, arbitrary, scientifically indefensible, or disguised
limitation on international commerce. It grants a member the right to take measures that will
result in better levels of health protection or actions that address health risks for which no
international standards exist. However, these actions must be scientifically proven. As
previously noted, GATT Article XX(b) offers exception for measures essential to safeguard
human, animal, or plant life or health, which is immediately applicable. Yet, the SPS Agreement
is more specific in this respect, since a key condition is that members be able to explain the
measure using scientific data, and there is a risk to health that justifies trade measures that are
not based on global norms.
d)
Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement
The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS
Agreement)
16
is another piece of legislation that directly falls under the WTO's jurisdiction. It
essentially assigns the responsibility of overseeing IP matters and associated subjects at the
global level. In order to update the TRIPS Agreement with regard to public health, the WTO
presented the Doha Declaration
17
in 2001. This proposal was accepted by the majority of WTO
members and went into force in 2001. In order to solve the public health issues facing
developing and least developed nations, this declaration emphasized the necessity of the TRIPS
Agreement being a component of larger national and international initiatives.
18
TRIPS rules, which regulate IP commerce between governments and private investors,
are essential in conversations concerning public health. Since different nations depend on one
another's technologies, IP sharing is prevalent in the fight against several public health issues. It
is important to note that Article 85 of the aforementioned article allows all parties to the TRIPS
Agreement to create and implement policies that safeguard public health and nutrition and
advance the general welfare while remaining compliant with the agreement.
The Doha Declaration made mandatory licensing for pharmaceutical exports necessary.
In essence, a compulsory license is granted by the government or another appropriate authority
to facilitate the use of a patented invention in the medical field without the patent holder's
consent. This is done to promote health and safety while minimizing the hardships experienced
by the organization that developed the medicine. According to the declaration, countries with
limited or no manufacturing capacity in the pharmaceutical industry may find it more difficult to
effectively utilise compulsory licensing restrictions. The proclamation also dispelled the idea that
mandatory licensing for the export of patented drugs is a requirement of the WTO and that such
an authorization would only be granted in emergency situations, which were also subject to the
organization's fancies and whims. The TRIPS Agreement will not prohibit any member state
from taking action to safeguard public health, as stated explicitly in that declaration, and the
16
Agreement on Trade-Related Aspects of Intellectual Property Rights, World Trade Organizations, New York
(1994).
17
Doha Declaration, Declaration on the TRIPS Agreement and Public Health, WTO (2001).
18
WTO, TRIPS and public health, WTO, 8 https://www.wto.org/english/tratop_e/trips_e/pharmpatent_e.htm.
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World Trade Organization will assist its signatories in addressing any problems that endanger the
public.
19
Finally, the WTO, in its amendment passed on August 30, 2003, made it easier to import
drugs and medicines from other countries at lower prices via the compulsory licensing regime,
thereby assisting least-developed countries in dealing with the challenges posed by health and
safety concerns.
V.
Conclusion
In conclusion, states are entitled to enact robust legislation aimed at safeguarding public
health and preventing non-communicable illnesses, contrary to common opinion. Instead, it
offers a structure that satisfies the requirements of upholding international trade agreements and
protecting public health. General exception clauses, such as those included in GATT Art. XX
and GATS Art. XIV, TBT, SPS, and TRIPS Art. 8, permit the implementation of public health
measures as long as they are not unreasonable or unjustified discriminatory. The Doha
Declaration on TRIPS and Public Health emphasizes the flexibility of TRIPS rules to ensure
access to essential medicines, underpinning the importance of public health.
The World Health Organization's (WHO) and WTO's collaboration and cooperative
approach further demonstrate their dedication to public health protection. All of these factors
together show how the WTO seeks to strike a careful balance between international trade
commitments and public health, ultimately promoting the welfare of countries and their citizens.
REFERENCES
1.
World Health Organization and World Trade Organization (2002) WTO agreements &
public health: a joint study by the WHO and the WTO Secretariat. Geneva: World Health
Organization/World Trade Organization.
2.
San Sebastian M, Hurtig AK, Rasanathan K (2006) Is trade liberalization of services the
best strategy to achieve health-related Millennium Development Goals in Latin America?
A call for caution. Rev Panam Salud Publica 20: 341346.
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at:
https://www.wto.org/english/thewto_e/thewto_e.htm
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Rabiul, M. and Hasan, T. (2018). Role of WTO in Balancing Trade Environment Public
Health and Sovereignty. Seventh International Conference on Advances in Social Science
Management
and
Human
Behaviour
SMHB
2018,
pp.43–47.
doi:https://doi.org/10.15224/978-1-63248-160-3-25.
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