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Health Policy and the WTO

Published online by Cambridge University Press:  01 January 2021

M. Gregg Bloche  and
Elizabeth R. Jungman
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Critics of international trade agreements often cast them as threats to human health, and they can point to some sobering warnings from world history. Infectious diseases have swept across political boundaries, carried by traders, colonists, and other agents of globalization. Transnational epidemics have laid economies low, undermining political stability. The spread of viruses and bacteria to peoples previously unexposed and therefore lacking immunity has decimated populations and changed the political course of continents. Trade, exploration, and warfare have repeatedly produced encounters between peoples at different levels of agricultural and technological development. Often, the results have been devastating for the disadvantaged group — economic marginalization, loss of sovereignty and culture, and collapse of public health. Yet the rise of civilization — plant and animal domestication, division of labor, technology, and resulting prosperity — was powered in large part by movement of products and knowledge along routes of trade and migration.

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Article
Information
Journal of Law, Medicine & Ethics , Volume 31 , Issue 4 , Winter 2003 , pp. 529 - 545
Copyright
Copyright © American Society of Law, Medicine and Ethics 2003

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This power, of course, is subject to the unlikely possibility of the Appellate Body's being overruled (or “not adopted”) by consensus in the Dispute Settlement Body within 30 days of circulation of the Appellate Body report. Understanding on Rules and Procedures Governing the Settlement of Disputes, Art. 17(14).Google Scholar
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Understanding on Rules and Procedures Governing the Settlement of Disputes, Art. 8.Google Scholar
A classic example is the National Labor Relations Board. This awkward mingling of rule orientation and responsiveness to political currents raises nettlesome legitimacy questions, beyond our scope here. These questions are even more difficult for the WTO than for domestic administrative agencies, owing to (i) the contractual nature of member states' commitments to the WTO and its associated treaties, and (ii) the absence of any international institutional or constitutional system, analogous to legislative oversight and presidential supervision of administrative agencies, by which WTO decision makers can be held to account for the balances they strike between trade concerns and other public values. For a discussion of these problems and some ideas about how to ameliorate them, see Howse, Robert L. Nicolaidis, Kalypso, “Legitimacy and Global Governance: Why Constitutionalizing the WTO is a Step Too Far,”in Porter, R. B. et al. eds., Efficiency, Equity, and Legitimacy: The Multilateral Trading System at the Millennium, (Washington: Brooking Institution Press, 2001): 227–252.Google Scholar
The Declaration on the TRIPS Agreement and Public Health is illustrative. The Ministerial Conference reached agreement only after the U.S. dropped its efforts to obtain language portraying pharmaceutical firms' intellectual property rights more expansively. Yerkev, Gary G. Pruzin, Daniel, “Agreement on TRIPS/Public Health Reached at WTO Ministerial in Doha,” BNA International Trade Report 18 (November 15, 2001): 1817–1819. Some developing nations had threatened to hold up the issuance of another ministerial statement, launching a new Doha round of trade talks (a high priority for the U.S. and other industrialized countries), unless the U.S. compromised on TRIPS. Pruzin, Daniel, “Global Drug Industry Association Blasts ‘Nutty’ WTO Text on TRIPS, Public Health,”' BNA International Trade Report 18 (November 8, 2001): 1782–1783; EC — Hormones, supra, note 55, is also illustrative. Although the U.S. prevailed, it did so on narrow grounds, with the Appellate Body endorsing a more deferential approach to member states' health risk assessment under e SPS agreement than the U.S. had urged. See supra, text accompanying notes 57–69.Google Scholar
See National Foreign Intelligence Board, Global Trends 2015: A Dialogue about the Future with Nongovernment Experts, (Washington: National Intelligence Council, 2000) (warning that AIDS and other health crises undermine development of effective economic and political institutions and aggravate domestic and international conflicts); Kassalow, Jordan S., Why Health is Important to U.S. Foreign Policy (Washington: Council on Foreign Relations & Milbank Memorial Fund, 2001) (urging that U.S. foreign policy work toward improving international health through a variety of economic and political means).Google Scholar
See Loewenstein, George F. et al., “Risk as Feelings,” Psychology Bulletin 127 (2001): 267–286 (arguing, based on review of empirical literature, that people's beliefs and decisions concerning risk often vary from those predicted by expected utility and rational choice theory); see also Gregg Bloche, M., “The Invention of Health Law,” California Law Review 91 (2003) 247–322 (weighing legal and policy implications of subjectivity and variation in perceptions of health and medical risk).CrossRefGoogle Scholar
See Bloche, supra, note 120 (discussing obstacles to pursuit of systematic rationality in health policy).Google Scholar
See Breyer, Stephen, Breaking the Vicious Circle: Toward Effective Risk Regulation (Cambridge: Harvard University Press, 1993) (offering proposals for more expeditious pursuit of systemic rationality in U.S. risk regulation and arguing that visible striving toward this goal, by highly competent federal authorities, would enhance the actual and perceived legitimacy of regulatory governance).Google Scholar
There is an analogy here to the contention that international criminal tribunals for human rights abusers are problematic because their interpretations of law are not nested in a single, national legal and political culture, as are rulings by domestic criminal courts.Google Scholar
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Id. at paras. 32–33. The Court opined that “[the State may not, by affirmative action, be compellable to provide adequate means of livelihood or work to the citizens,” but “any person, who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life …” Id. at para. 33.Google Scholar
Art. XIX of the General Agreement on Trade in Services (GATS) calls for progressive rounds of negotiation over liberalization of trade in services. The Ministerial Conference in Doha set out a “Work Programme” calling for a round of such talks, leading to an exchange of trade liberalization commitments. Ministerial Declaration, Ministerial Conference, 4th Session, Doha November 9, 2001, WT/MIN(01)/DEC/1 para. 15 (November 20, 2001). Hospital management services, competition between the private and public sectors in health care, managed health care, and other medical insurance products are among the activities and ventures that fall within the GATS. See Lipson, Debra J., “The World Trade Organization's Health Agenda,” British Medical Journal 323 (2001) 1139–1140; warning that liberalized trade in health services, pursuant to GATS, could reduce poor people's access to care.CrossRefGoogle Scholar
Indeed, at Doha, the Ministerial Conference explicitly declined to recognize such a right. A draft ministerial declaration proposed by a group of developing countries called for the Conference to present its TRIPS pronouncements as, in part, a “discharging” of “the obligation to protect and promote the fundamental human rights to life and the enjoyment of the highest attainable standard of physical and mental health, including the prevention, treatment and control of epidemic, endemic, occupational and other diseases and the creation of conditions which would assure to all medical service and medical attention in the event of sickness, as affirmed in the International Covenant on Economic, Social and Cultural Rights.” TRIPS: Proposal: Draft Ministerial Declaration: Proposal from a Group of Developing Countries, IP/C/W/312, WT/GC/W/450, October 4, 2001 (01–4803), http://www.wto.org/english/tratop_e/trips∼_e/mindecdraft_w312_e.htm (visited Feb. 11, 2002). The Ministerial Conference did not include such a statement in its Declaration on TRIPS.Google Scholar
For some, this idea is an oxymoron: Many hold that there is no such thing as a right without a legal remedy. We are of the view that the idea of a non-justiciable right can make pragmatic sense, but consideration of this complex jurisprudential question is beyond our scope here.Google Scholar