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Liberman, Jonathan; Mitchell, Andrew --- "In Search of Coherence between Trade and Health: Inter-Institutional Opportunities" [2010] UMelbLRS 7

Last Updated: 28 September 2010

This article is forthcoming in the Maryland Journal of International Law, 2010

IN SEARCH OF COHERENCE BETWEEN TRADE AND HEALTH: INTER-INSTITUTIONAL OPPORTUNITIES[*]

JONATHAN LIBERMAN[†] & ANDREW MITCHELL[‡]

[The fragmented state of contemporary international law and institutions gives rise to contentious relationships between larger policy objectives. An example of such relationships, the ‘trade and health’ debate has long been understood as suffering from a lack of policy coherence, at the expense of health. This paper explores the institutional modalities of formulating a coherent policy that would redress the gravitational pull of the World Trade Organization, opting for cooperation between the major relevant international organizations rather than counterbalancing the dominance of trade. Part II of the paper notes the multi-layered impacts of trade on health, mindful of areas of tension between trade agreements and health. These tensions are then placed within the broader discourse about the fragmentation of international law into sectoral normative regimes, with a view to highlighting the major risks involved in the process. Part IV briefly addresses the impact of trade agreements on national health measures, and the operation of the ‘health exception’ in GATT 1994 in light of the jurisprudence of WTO tribunals. Part V explores the role of the World Health Organization in the governance of trade and health. The paper concludes by making suggestions for formal inter-institutional cooperation between WTO and WHO, which, it is hoped, would positively contribute to the development of norms and institutional practices that better integrate health objectives into trade policy-making and implementation, and trade objectives into health policy-making and implementation.]

I. INTRODUCTION

In early 2009, the Lancet, one of the world’s leading health journals, published a six-Part series on trade and health. The series introduction noted that ‘trade directly and indirectly affects the health of the global population with an unrivalled reach and depth’.[1] It argued that trade is a ‘key health issue’ that the global-health community ‘can no longer ignore’[2] and called on health professionals ‘to become engaged in the fight for a fairer trading system so that health has a chance of being considered as important as wealth’.[3] The publication of the series, and its framing, by the Lancet reflect a concern among leading members of the global health community that the links between trade and health are not well-enough understood — let alone addressed — within the field. The perception is of a lack of ‘policy coherence’ between trade and health, at the expense of health.

Such concerns about policy incoherence between trade and health are best analysed within a wider context. They form part of a much larger discourse about the fragmentation of international law and of the practice of international institutions. Concerns about ‘trade and health’ reflect two specific manifestations of this broader discourse: perceptions of a crisis in global health governance; and the so-called ‘trade and ...’ debates, which involve an examination of the links — and possible conflicts — between trade objectives and those of a range of other areas of domestic and international activity, including the environment, human rights, conditions of labour and culture.[4] These ‘trade and ...’ debates raise major questions about the power of the World Trade Organization (‘WTO’), its sensitivity to other important (non-trade) values, and its role and influence in the governance of both international and domestic affairs.

Building on the existing literature on the tensions between trade and health and aiming at contributing to suggestions for better managing them, this article argues for inter-institutional cooperation processes that would maximize the benefits and minimize the risks of fragmentation. Part II notes the broad, multi-layered impacts of trade on health, and areas of tension between trade agreements and health, focusing on public health measures designed to prevent non-communicable diseases. Part III places these tensions within the broader context of fragmentation generally, and the more specific context of fragmentation of global health governance, and seeks to identify some of the major risks of fragmentation. Part IV briefly sketches the treatment of health in several WTO Agreements, including the health exception in the General Agreement on Tariffs and Trade 1994[5] (‘GATT’) and the General Agreement on Trade in Services[6] (‘GATS’) and explains the problem of ‘regulatory chill’, which is caused by uncertainty about the impact of these trade agreements. Part V explores the role of the World Health Organization (‘WHO’) in the governance of trade and health and makes some suggestions for formal inter-institutional cooperation between WTO and WHO. It argues that such cooperation should ultimately lead to the development of norms and institutional practices that better integrate health objectives into trade policy-making and implementation, and trade objectives into health policy-making and implementation. The benefits of such integration would be seen in improvements in both global health and global economic development.[7]

II. THE IMPACT OF TRADE AND TRADE AGREEMENTS ON HEALTH

A. The Impacts of Trade on Health

Cross-disciplinary, international work conducted over the last decade has illustrated the many ways in which people’s health is determined by their social conditions. In 2005, WHO established a Commission on Social Determinants of Health, which published its final report, ‘Closing the gap in a generation: Health equity through action on the social determinants of health’, in 2008.[8] The Commission concluded that ‘the high burden of illness responsible for appalling premature loss of life arises in large part because of the conditions in which people are born, grow, live, work, and age — conditions that together provide the freedom people need to live lives they value’.[9] Conditions that negatively impact on health include lack of income, economic insecurity, inappropriate housing, unsafe workplaces, and lack of access to health care.[10]

If health is determined by such a broad range of social conditions, trade must affect health in multiple ways and on multiple levels, both ‘direct’ and ‘indirect’. Direct links between trade and health include damage caused by trade in harmful goods (such as goods contaminated by pathogens and goods containing dangerous substances), and the effects of liberalising trade in health-related services.[11] Indirect links between trade and health include trade’s influence on employment levels and income through its effects on macroeconomic conditions.[12] As Anna Shea, Nancy Ross and Jody Heymann observe, the fact that poverty and inequality exert negative effects on people’s health means that understanding how trade policies affect health requires an analysis of their impacts on poverty and equality.[13]

At the macro level, theory suggests that trade should improve people’s health by enhancing the capacity of societies to produce goods and services, in turn increasing the capacity of governments to adjust to change, protect their interests, and invest in people’s well-being.[14] David Fidler suggests that trade

could even be considered a geopolitical determinant of health that requires the support and backing of public health as a matter of foreign policy. A weak or failing international trading system would produce political and economic consequences under which national and global health, especially of the most vulnerable populations, would suffer.’[15]

In contrast, a ‘stable, orderly, and dynamic international trading system ... delivers economic opportunities and resources that are critical for improving standards of living, funding public services, and supporting good governance.’[16]

The economic development impact of globalization, and of trade liberalization in particular, have been widely studied. Not surprisingly, the empirical realities are complex and often contested. Shea, Ross and Heymann argue that the best evidence offered by cross-national studies ‘demonstrates that economic globalization’s effects have been highly variable across populations and outcomes’.[17] So too with trade liberalisation. It is widely accepted that trade liberalization is a necessary but insufficient ingredient of development policy.[18] In several countries, it has not translated into economic expansion.[19] Complementary measures creating a stable macroeconomic environment, competitive exchange rate, solid fiscal policies, well functioning agricultural and labour markets, and physical infrastructure are needed to ensure that trade openness leads to a high level of growth.[20]

With respect to people’s health, as Shea, Ross and Heymann highlight, the distribution of wealth within a society is critical – it is levels of poverty and inequality that matter most.[21] The ‘social gradient in health’ affects people in rich and poor countries alike, with low socioeconomic status in all countries being related to poor education, lack of amenities, unemployment and job insecurity, poor working conditions and unsafe neighbourhoods.[22] These outcomes are not necessarily improved when a nation’s trade regime is liberalised,[23] especially where trade liberalization is not accompanied with governance reforms. The authors highlight suggestive cross-national and national evidence ‘showing that increased trade can lead to worsened levels of poverty, inequality, and by extension, well-being’.[24] In every society, trade reforms create winners and losers.[25]

B. The Impact of Trade Agreements on Governments’ Capacity to Promote and Protect Health

The negotiation and adoption of trade agreements (be they multinational, plurilateral or bilateral) has been at the heart of the rapid process of liberalisation that has unfolded over the last fifty years. The adoption of these agreements has seen the elimination or reduction of a wide range of barriers to trade, both tariffs and ‘non-tariff barriers to trade’, which include trade-discriminatory laws, policies and programmes. New goods and services have flooded into markets all over the world. Multinational corporations have expanded their operations, entering markets that had previously been closed to them. The effects on economies and cultures have been extraordinary.

Within the large field of study and debate about ‘trade and health’, one area that has received considerable attention, both in academic literature and domestic and international political fora has been the effects of trade agreements on governments’ prerogative to freely choose and develop their political, social and cultural systems, in particular their capacity to implement laws, policies and programmes to promote and protect public health. Concerns that governments have ceded too much sovereignty in striking such agreements have been expressed.[26] Albeit at times somewhat exaggerated, the discourse also points to the ‘democratic deficit’ in the WTO, which undermines the capacity of the organization to represent the will of the citizens of its Members.[27] The Lancet series includes articles on two of the most contentious areas: the impact of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)[28] on access to medicines[29] and of the GATS on the provision of health services.[30]

Another area of significant academic and political discussion has been the impact of trade agreements on global efforts to reduce the burden of non-communicable diseases.[31] This is an area likely to gain in prominence over the coming years, with increasing recognition of the scale of the burden and understanding of its causes, and momentum building internationally for concerted action to reduce it. In 2008, the World Health Assembly endorsed the ‘2008-2013 Action Plan for the Global Strategy for the Prevention and Control of Noncommunicable Diseases’.[32] The Strategy records that noncommunicable diseases – principally cardiovascular diseases, diabetes, cancers and chronic respiratory diseases – caused an estimated 35 million deaths in 2005.[33] This constituted 65% of all deaths globally, with 80% of these occurring in low-and middle-income countries.[34] Projections show the total deaths from noncommunicable diseases rising by 17% over the next ten years, disproportionately affecting poor and disadvantaged populations, and contributing to widening health gaps between and within countries.[35] Noncommunicable diseases are thus ‘closely linked to global social and economic development’.[36] Tackling the growing burden ‘constitutes one of the major challenges for development in the twenty-first century’.[37]

As the Action Plan makes clear, noncommunicable diseases are largely preventable. Key to their prevention is reducing the level of exposure of individuals and populations to their four common risk factors – tobacco use, unhealthy diet, physical inactivity, and harmful use of alcohol.[38] Magnusson argues that consumption of tobacco and overconsumption of alcohol and unhealthy foods (foods high in fat, salt and/or sugar) reflect ‘the success of global business enterprises that seek to manipulate consumer behaviour for profit and to resist measures that could reduce consumption’.[39] Regulating the behaviour of these entities is an essential part of comprehensive prevention programmes, and is bound to generate debate about consistency with international trade obligations.

III. FRAGMENTATION OF INTERNATIONAL LAW AND INTERNATIONAL INSTITUTIONS

A. The Causes of Fragmentation

As noted in Part I, concerns about incoherence between trade and health are best viewed within the wider context of concern about the fragmentation of international law and of the practice of international institutions. In the Report of the Study Group of the International Law Commission on ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’, Martti Koskenniemi explains that while globalisation ‘has led to increasing uniformization of social life around the world, it has also led to its increasing fragmentation – that is, to the emergence of specialized and relatively autonomous spheres of social action and structure.’[40] This ‘fragmentation of the international social world has attained legal significance especially as it has been accompanied by the emergence of specialized and (relatively) autonomous rules or rule-complexes, legal institutions and spheres of legal practice’.[41]

A number of factors have been identified as contributing to the ‘fractious state of the international legal system’[42] including: the proliferation of norm-creating and norm-influencing international institutions, or expansion of the mandate of existing ones; the increased emphasis on and prominence of regionalization; technology-driven global changes, giving rise to new areas of regulation; global environmental challenges; the greater prominence of and recognition of individual rights, internationally, regionally and nationally;[43] the lack of centralized organs; the specialization of regulations; and the different structures of legal norms.[44]

Fragmentation, however, ‘is not necessarily a bad thing’.[45] Specialization in law making and law enforcement can lead to better law.[46] Competition between institutions can increase efficiency and provide opportunities for new legal instruments to be developed.[47] New forms of cooperation among intergovernmental bodies with different institutional strengths can be generated, and new venues in which states can bargain and link issues areas created.[48] Analysis of complex problems from different perspectives, and from within different professional, political and institutional cultures, can facilitate creative thinking and allow for the development and implementation of innovative approaches.

B Fragmentation in Global Health Governance

In the public health field, scholars have become increasingly concerned about the fragmented nature of global health governance. Pronounced fragmentation in this field is perhaps inevitable given the breadth of the determinants of health. ‘Policies outside the health sector, in areas such as trade, the environment, and education, are becoming drivers of health and health risks’.[49] Thus, ‘[h]ealth problems are no longer “only” health problems and are no longer the domain of “only” health officials’.[50] Writing about noncommunicable diseases, Magnusson points out that ‘[e]ffective regulation of [their structural and environmental determinants] requires interventions that extend well beyond the health sector’[51] with policy influence required in areas such as agriculture, finance and taxation, education, recreation and sports, media and communication, transportation and urban planning.[52]

In health, as in other areas of policy, fragmentation in governance at the domestic level feeds upwards to the international level. Cottier, Pauwelyn and Burgi argue that the problem of coordination

starts with the lack of adequate domestic policy coordination within governments. Problems faced on the international level between international organizations often merely reflect the fact that governments are equally fragmented ... Ministries and departments are competing in the pursuit of their policy briefs, and supported by different constituencies in society.[53]

At the international level, Taylor identifies the ‘diversity of intergovernmental organizations [that] now contribute to the elaboration of the increasingly complex and multivaried field of international health law’,[54] including the WHO, the United Nations Children’s Fund (UNICEF), the Food and Agriculture Organization of the United Nations (FAO), the United Nations Environment Programme (UNEP), the United Nations Development Programme (UNDP), the United Nations Population Fund (UNFPA), the World Bank, the United Nations Educational, Scientific and Cultural Organization (UNESCO), the United Nations Human Rights Council, and the WTO.[55] Gostin and Taylor note the ‘growing evidence of fragmentation, duplication and inconsistency in areas of global health law-making. ... The proliferation of actors and institutions [in] the field of global health law is not serving to strengthen global health governance, but rather is leaving the field in disarray’.[56] Importantly, as Fidler, Drager and Lee observe, fragmentation ‘is challenging WHO’s lead role as the UN specialised agency for health’.[57]

Fragmentation at the international level is not, of course, simply a product of domestic fragmentation – it also reinforces it. For example, Fidler describes the process of ‘transgovernmentalism’, under which ‘stove-piped’ government ministries and agencies, having to increasingly manage globalized issues, begin to interact more directly with their counterparts in ministries overseas, often without the benefit of domestic interagency processes.[58] This complicates the process of domestic policy development and defies standards of good governance requiring transparency and legitimacy.[59] ‘Horizontal policy plumbing among finance ministries of various countries might achieve coherence among themselves but to the exclusion of connecting their pipes with the plumbing running to the development or environment ministries.’[60]

Thus the search for coherence is a search for coherence at two levels – ‘external policy coherence’ (‘which involves the balancing of the health and trade interests of different states’) and ‘internal policy coherence’ (‘which involves getting trade and health policy-makers to work together more effectively in formulating the national interest’).[61] However, the challenges of finding coherence at the domestic and international levels are fundamentally different. As Leebron points out, ‘in the domestic context there is virtually always some coordinating mechanism and superior authority (such as the chief executive) to coordinate both the allocation of tasks and the substantive resolution of issues’[62]. In contrast, ‘[a]lthough various international organizations have mechanisms for cooperating with each other, these relationships are generally neither hierarchical nor comprehensive.’[63]

B. The Risks of Fragmentation

As noted above, fragmentation is not, in itself, a good thing or a bad thing. Rather, it is a fact of political and legal life with both positive and negative features. The governance challenge is to maximize the opportunities that it offers and to minimize its harms.

In order to do so, it is necessary to be mindful of the major risks that it creates. At the international level, these include:

• the development of potentially conflicting norms by different institutions, creating either the impossibility of complying with both sets of norms or significant uncertainty about how states, institutions and their individual representatives should behave;[64]
• the development of conflicting institutional practices (including in programs that seek to implement or facilitate the implementation of norms);[65]
• the failure of institutions to learn from and make use of the expertise of other institutions, diminishing the quality of their work;[66]
• inter-institutional tensions and turf wars;[67] and
• inefficient duplication of activities of different institutions.[68]

IV. THE GOVERNANCE OF HEALTH THROUGH THE WTO AGREEMENTS

A. Trade’s Perceived Dominance

The ‘battle’ between trade and health values and governance arrangements is played out on many different levels and in many different fora. At the domestic level, it can be observed in the development and implementation of both trade and health policy, in the development of government trade negotiation positions and in the implementation of obligations under trade agreements. At the international level, it is acted out in the negotiation of trade agreements by states – whether multilateral, regional or bilateral – and in the oversight of implementation by the parties to these agreements, including the various formal and informal exchanges they may have at different levels of government about their respective rights and obligations and levels of compliance. It is also played out – perhaps most prominently – through formal dispute settlement processes, such as under the WTO’s Understanding on Rules and Procedures for the Settlement of Disputes (‘DSU’).[69]

Scholarship in the public health field tends to express a perception that health does not do well in its ‘battles’ with trade. In domestic settings, Fidler writes that ‘trade ministries typically have more power within governments than health ministries’.[70] This manifests particularly acutely in the setting of trade policy, with the ‘low status that health policy receives compared with the status of commercial interests in the setting of trade policy’.[71] Public-interest groups tend to exert less weight in setting priorities, and shaping the international trade agenda, than industry lobbyists.[72] This absence of health representation in trade policy is particularly pronounced in low- and middle-income countries.[73]

This imbalance at the domestic level both shapes and is fuelled by the international mechanisms for governing trade and health. Fidler, Drager and Lee argue that comparing these mechanisms reveals why trade ‘has so far dominated governance of this relationship’.[74] They contrast global health governance, with its limited structural coherence, greater diversity of actors and approaches and weaker legal obligations on states, with the ‘highly structured, formalised, and demanding governance system’ of international trade.[75] In contrast to the WTO, membership of the WHO ‘is not legally demanding on states’ and other international agreements directly affecting health have not contained extensive duties or detailed and specific requirements.[76] The ‘scope and demanding nature’ of the WTO rules is reinforced through its compulsory dispute settlement mechanism, under which trade sanctions may be applied.[77] WHO’s two legally binding instruments – the International Health Regulations (IHR)[78] and the WHO Framework Convention on Tobacco Control (FCTC)[79] – do not contain compulsory dispute settlement and enforcement provisions. They ‘thus lack the compliance bite that WTO rules have. This difference could affect how seriously countries take obligations connected to the two organisations’.[80] Further, the proliferation of regional and bilateral trade agreements,[81] which create a complex web of obligations and dispute settlement mechanisms that are impossible to monitor at the global level, and therefore to respond to in a systematic way, ‘reinforces international trade law’s dominant governance role in the trade and health arena’.[82]

B Balancing Trade and Health in the WTO Agreements

Health does feature prominently in the WTO agreements. The GATT (Art XX) and the GATS (Art XIV) both contain exceptions allowing Members to implement domestic measures that are ‘necessary’ to protect human health, as long as they are not applied ‘in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same[83]/like[84] conditions prevail, or a disguised restriction on international trade’. The TBT and SPS Agreements both affirm the right of WTO members to take measures necessary for the protection of human health, while seeking to prevent the creation of unnecessary obstacles to international trade.

For example, in Article 2.2 of the TBT Agreement, technical regulations are not to be ‘more trade-restrictive than necessary to fulfill a legitimate objective, taking account of the risks non-fulfilment would create’. Legitimate objectives explicitly include ‘protection of human health’.[85]

Aiming at responding to a number of perceived inadequacies in the GATT 1947 discipline of state discretion in their health policy,[86] the conclusion of the Uruguay Round produced the SPS Agreement, which deals with certain health measures.[87] Art 2.1 of the SPS Agreement affirms the right of WTO Members to take sanitary and phytosanitary measures[88] necessary for the protection of human health, provided that such measures are not inconsistent with the Agreement. Measures should:

• be applied ‘only to the extent necessary to protect’ health, be based on scientific principles, and not maintained without sufficient evidence (except for the case of provisional measures, where there is insufficient scientific evidence, and provided certain conditions are met);[89]
• ‘not arbitrarily or unjustifiably discriminate between Members where identical or similar conditions prevail, including between their own territory and that of other Members’;[90] and
• ‘not be applied in a manner that would constitute a disguised restriction on international trade’.[91]

SPS measures that conform to the Agreement are presumed to be in compliance with the WTO Agreements.

Article 27.2 of TRIPS Agreement allows Members to exclude inventions from patentability where the prevention of commercial exploitation is necessary to protect, inter alia, public health. Article 8.1 contains a principle that Members may ‘adopt measures necessary to protect public health ... provided that such measures are consistent with the provisions of this Agreement’. The TRIPS Agreement does not contain a health exception as such, and the status of the principle and the requirement for consistency with the terms of the Agreement have been the subject of debate.[92] In the context of disagreement about the effects of the agreement on access to medicines, in 2001, the WTO Members adopted the Declaration on the TRIPS Agreement and Public Health (the Doha Declaration),[93] which included the following statements:

We agree that the TRIPS Agreement does not and should not prevent members from taking measures to protect public health. Accordingly, while reiterating our commitment to the TRIPS Agreement, we affirm that the Agreement can and should be interpreted and implemented in a manner supportive of WTO members' right to protect public health ...[94]

...

In applying the customary rules of interpretation of public international law, each provision of the TRIPS Agreement shall be read in the light of the object and purpose of the Agreement as expressed, in particular, in its objectives and principles.[95]

However, the Doha Declaration appears in practice to be indirectly circumvented by ‘TRIPS-plus’ Free Trade Agreements, which provide higher levels of intellectual property protection than TRIPS and operate outside the context of the WTO.[96] Such agreements will likely exert a significant impact on the availability and accessibility of essential medicines, although it is still too early to confidently assume in this respect.[97]

Returning to the multilateral context, while the value of health is recognized in all of these agreements, the aim in all cases is to strike a balance between trade and health objectives. The need for balance – rather than a hierarchy of importance – between trade and health is not uniquely a product of WTO processes. Indeed, it is also reflected in WHO’s IHR, the purpose and scope of which ‘are to prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with and restricted to public health risks, and which avoid unnecessary interference with international traffic and trade’.[98]

While balance is an unimpeachable principle, difficulties, of course, arise when it has to be struck in a particular case. Uncertainty cannot be avoided. As for any subjective decision, the identity of the person or body charged with striking the balance, and their sources of information, are critical. Public health advocates have expressed concerns about the suitability of trade panels to be weighing trade and health values.[99] The understandable concern is that individuals who are expert in trade, and likely to be internalized within trade cultures and ‘epistemic communities’, are likely to better understand, and place a greater value upon, trade values than health values. Baumberg and Anderson point out that the deciding of cases ‘within opaque panels by experts on trade – although admittedly politically sensitive trade experts’ can lead to ‘a feeling that health views are marginalized.’[100] This concern is not confined to the ‘trade and health’ equation: for example, Guzman writes that the resolution of tensions in the relationship between trade and labour standards through the Appellate Body is undesirable because the Appellate Body is poorly positioned to completely understand the trade-offs at stake.[101]

In a strict legal sense, neither panels nor the Appellate Body are authorized to ‘interpret’ the WTO agreements – Art IX:2 of the Marrakesh Agreement Establishing the World Trade Organization (Marrakesh Agreement)[102] reserves to the Ministerial Conference and the General Council the ‘exclusive authority to adopt interpretations’ of the Marrakesh Agreements and the covered Multilateral Agreements’. Furthermore, WTO tribunals and the DSB cannot ‘add to or diminish the rights and obligations [of Members] provided in the covered agreements’.[103] In practice, however, ‘panel and Appellate Body reports are interpreting, elaborating, and consolidating WTO law norms’.[104] Their decisions are pivotal to the way WTO obligations and rights are understood,[105] and contribute to greater predictability and security in the dispute settlement system.[106]

B. The Health Exception in the GATT and the GATS

The striking of the balance between trade and health values by WTO panels and the Appellate Body has occurred most prominently in their interpretation of the health exception found in the GATT and the GATS, and particularly the meaning of ‘necessary’. It is clear that health is treated as an important value in the language of WTO jurisprudence. In 2001, in European Communities – Measures Affecting Asbestos and Asbestos-Containing Products, the Appellate Body wrote that the ‘preservation of human life and health ... is both vital and important in the highest degree’.[107] But a recognition of the importance of health says little about how the balance with the important value of trade will be struck either in general or in any particular case.

The jurisprudence on the health exception has evolved over the years, arguably towards an application of the health exception (and other exceptions) that is more accommodating of health (as well as other non-trade) interests than previously. Recent jurisprudence, in particular, suggests that governments retain a significant degree of policy space.[108] On the interpretation provided in the most recent major Appellate Body decision on the necessity exception, Brazil – Measures Affecting Imports of Retreaded Tyres:[109]

• WTO Members are entitled to set the public health objective they seek to achieve and the level of protection they want to obtain. The ‘right that WTO Members have to determine the level of protection they consider appropriate in a given context’ is a ‘fundamental principle’;[110]
• the determination of necessity involves a ‘weighing and balancing’ exercise. In order to determine whether a measure is necessary, ‘a panel must consider the relevant factors, particularly the importance of the interests or values at stake, the extent of the contribution to the achievement of the measure’s objective, and its trade restrictiveness’;[111]
• the contribution made by a measure to the achievement of its objective must be material, not merely marginal or insignificant;[112]
• the contribution made by a measure to the achievement of its objective can be demonstrated by either a qualitative or quantitative analysis;[113]
• certain complex public health problems can be ‘tackled only by comprehensive policy comprising a multiplicity of interacting measures’.[114] In the short-term, it may be ‘difficult to isolate the contribution ... of one specific measure from those attributable to the ‘other measures that are part of the same comprehensive policy;[115]
• the results obtained from certain actions, including certain preventive actions to reduce the incidence of diseases that may manifest themselves only after a certain period of time, can only be evaluated with the benefit of time;[116]
• if the weighing and balancing described above yields a preliminary conclusion that a measure is necessary,[117] the result must be confirmed by comparing the measure with possible alternatives identified by the complaining Member, which ‘may be less trade restrictive while providing an equivalent contribution to the achievement of the objective pursued’.[118]
• a Member whose measures have been challenged may seek to show that a suggested possible alternative was not in fact ‘reasonably available’ – for example, where the measure is merely theoretical in nature, ‘for instance, where the responding Member is not capable of taking it, or where the measure imposes an undue burden on that Member, such as prohibitive costs or substantial technical difficulties’.[119]
• mutually supportive elements of a comprehensive policy cannot be considered real alternatives.[120]

While the interpretation does not strictly ‘prioritize’ health ‘over’ trade, it does appear to seek a reasonable balance, enabling governments’ public health objectives to outweigh trade objectives where the former meet the requirements of the exception. The Appellate Body’s interpretation also acknowledges the complexity and inter-relatedness of the multiple elements of comprehensive public health policy, and the difficulties of precisely quantifying, particularly in advance, and in the absence of direct precedent, the likely effectiveness of measures sought to be implemented.[121]

D Uncertainty and Regulatory Chill

Even if it is correct that panels and the Appellate Body do leave governments significant room to undertake measures to protect public health (and other important values) – and are likely to continue to do so – the very fact of justiciability, and the inherent uncertainty of the judicial process, contribute to what is commonly known as ‘regulatory chill’ – in this context, ‘the reluctance of governments to introduce domestic public health laws for fear of inviting trade disputes’.[122] In the absence of cooperation of all major trade competitors, it is not difficult to imagine that this effect may be spilled onto the international level as well. This chill is likely to be particularly pronounced in areas in which powerful commercial entities have an interest in dissuading governments from acting, such as in the area of noncommunicable disease prevention. Well-resourced companies regularly commission legal opinions from leading domestic and international lawyers that highlight – and have an incentive to overstate – the risks of a successful trade challenge. [123] Even the successful defence of a trade challenge takes significant time and resources, which governments may prefer to allocate elsewhere.

Thus, it is clear that, although health appears to receive relatively good protection in most of the WTO agreements, at least insofar as they are likely to be relevant to noncommunicable disease prevention, there is inevitably a degree of uncertainty about the impact of trade agreements on particular measures that governments may wish to adopt. For those interested in the protection of public health, a key challenge is to build bridges between the systems of trade governance and health governance in order to ensure that the importance — and the facts — of health are sufficiently understood and valued within the governance of trade.

V. IN SEARCH OF COHERENCE

A. The World Health Organization and the World Trade Organization

The WHO was established in 1948 with an ambitious objective: ‘the attainment by all people of the highest possible level of health’.[124] It is a UN specialized agency for the purposes of Article 57 of the UN Charter,[125] pursuant to an agreement between the UN and the WHO.[126] WHO is provided, by its Constitution, with an extremely broad mandate to protect and promote international health, befitting its designation as the UN specialized agency in the field. It has a wide range of functions, which are set out in Article 2 its Constitution, including: to act as the ‘directing and co-ordinating authority on international health work’;[127] to establish and maintain effective collaboration with the United Nations, specialized agencies, governmental health administrations, professional groups and such other organizations as may be deemed appropriate;[128] to propose conventions, agreements and regulations, and make recommendations with respect to international health matters and to perform such duties as may be assigned thereby to the Organization and are consistent with its objective;[129] to promote and conduct research in the field of health;[130] to provide information, counsel and assistance in the field of health;[131] to develop, establish and promote international standards with respect to food, biological, pharmaceutical and similar products;[132] and generally to take all necessary action to attain the objective of the Organization.[133]

The WTO was established in 1994 by the Marrakesh Agreement to ‘provide the common institutional framework for the conduct of trade relations among its Members’ in matters related to a range of agreements. Its functions are set out in Article III of the Agreement. The WTO is intended to facilitate the implementation, administration and operation of the WTO agreements, and negotiations among Members concerning their trade relations; to administer the DSU and the Trade Policy Review Mechanism; and to cooperate with other international institutions in global economic policy-making.

B. What Role for WHO in the Governance of Trade and Health?

As illustrated in Part I, trade has profound effects on health at multiple levels. The UN specialized agency for international health, with a mandate as broad as that of WHO, has a clear responsibility to monitor and engage in ‘trade and health’ issues. But it is not clear how, or to what extent, WHO should play a role in ‘trade and health’ governance or how the inevitable overlap between its mandate and that of the WTO should be managed.

At one level, the question about WHO’s role is a broader one about the role it should perform in relation to health-relevant international lawmaking generally, in a world in which, as noted earlier, there is a large ‘body of international law that powerfully affects global health in areas ranging from food safety, arms control, and the environment to trade and human rights’[134] and beyond. Taylor argues that WHO ‘has a unique directive to provide leadership and promote rational and effective development of the evolving field of international health law’.[135] This does not mean full centralization of all international health lawmaking functions under WHO’s auspices,[136] but ‘leadership in coordinating codification and implementation efforts among the diverse global actors actively engaged in health lawmaking’, which ‘could, in theory, foster the development of a more effective, integrated and rational legal regime and, consequently, better collective management of global health concerns’.[137] WHO could serve as ‘a coordinator, catalyst, and, where appropriate, platform for important international health agreements.’[138]

The idea that WHO should seek to provide leadership in international health lawmaking – or norm-making more broadly – is an appealing one for those concerned about coherence in global health governance, but the realities are exceedingly complex, both within WHO and in its inter-institutional relationships. Particularly difficult challenges arise in the trade and health context. Part IV explained trade’s dominance of the trade-health governance relationship – in contrast to the institutional framework within which WHO operates, the WTO regime embodies a wide range of ‘hard’ legal obligations, backed up by a compulsory dispute settlement system.

In addition, as noted earlier, WTO legal norms are developed not only by the Ministerial Conference and the General Council – but also by the panels and the Appellate Body. While a panel has the ability to ‘seek information and technical advice from any individual or body which it deems appropriate’[139] and to ‘seek information from any relevant source’[140] and ‘consult experts to obtain their opinion on certain aspects of the matter’,[141] and both GATT[142] and WTO panels[143] have received information from WHO, panels remain independent and make their own decisions. While WHO can provide information, this information does not carry any special weight, however important WHO – and the global health community it represents – might consider the outcome of a dispute for global health.

While WHO has been criticized for not engaging more robustly in trade and health issues,[144] it has been far from inactive. The World Health Assembly (WHA) and the Executive Board have addressed trade and health in various contexts, including the impacts of trade agreements on access to drugs, particularly with respect to HIV/AIDS; health and intellectual property rights more broadly; the relationship of trade agreements to international migration of health personnel; negotiations to revise the IHR; and aspects of the FCTC.[145] In 2000, WHO established a small programme on globalisation, trade and health, which has been evolving since and is now part of its Trade, foreign policy, diplomacy and health programme.[146] In 2006, the WHA adopted a resolution on International trade and health,[147] which urged WHO’s Member States to implement a range of measures designed to improve domestic ‘trade and health’ capacity and enhance coherence; and requested the Secretariat, through the Director-General, to provide support to member states on ‘trade and health’, build capacity, and continue collaborating with ‘the competent international organizations in order to support policy coherence between trade and health sectors at regional and global levels, including generating and sharing evidence on the relationship between trade and health’. The resolution was adopted

Recognizing the demand for information on the possible implications of international trade and trade agreements for health and health policy at national, regional and global levels;

Mindful of the need for all relevant ministries, including those of health, trade, commerce, finance and foreign affairs, to work together constructively in order to ensure that the interests of trade and health are appropriately balanced and coordinated.

In respect of the intersection between intellectual property rights and access to medicines, since 1996, WHO has closely monitored the implementation of TRIPs and advised Member States on ways of using TRIPS’ ‘flexibilities’ to allow them to achieve health goals.[148] In 2004, it established, pursuant to a 2003 WHA Resolution (WHA 56.27), the WHO Commission on Intellectual Property Rights, Innovation and Public Health, which reported to the WHA in 2006.[149] Having considered the Commission’s report, the WHA requested the convening of an Intergovernmental Working Group (IGWG) to develop a global strategy and plan of action in order to provide a medium-term framework based on the Commission’s recommendations (WHA 59.24). The IGWG completed its work in 2008, when the WHA adopted the ‘Global strategy and plan of action on public health, innovation and intellectual property’ (WHA 61.21). WHO now has a Secretariat on Public Health, Innovation and Intellectual Property (PHI), which focuses on implementation of the Global strategy. (http://www.who.int/phi/about/en/)

WHO has described its trade and health work as consisting of three main functions: performing analysis and research to better inform policy decisions, negotiations, dispute settlement and agenda setting; creating tools and training materials to build capacity in Member States; and meeting country requests for support in specific trade and health issues, either through country missions or regional or interregional workshops.[150] WHO has produced a range of materials on trade and health issues, which are available either on its website or on request.[151] It has collaborated with the WTO Secretariat, including in producing a 2002 joint study on ‘WTO Agreements and Public Health’[152] and in developing and conducting training courses on multilateral agreements and public health.[153] It has been granted observer status at the WTO Committee on Sanitary and Phytosanitary Measures and the Committee on Technical Barriers to Trade, and ad hoc observer status in the Council for Trade in Services, the Council for Trade-related Aspects of Intellectual Property Rights, and the Council for Trade in Services, Special Sessions.[154] It is currently collaborating with WTO, the World Bank, the World Intellectual Property Organization (WIPO), the United Nations Conference on Trade and Development (UNCTAD), international experts and trade and health policy makers from ten countries to develop a ‘diagnostic tool and companion workbook’ in trade and health that will guide national policymakers in developing national policies and strategies related to trade and health; and structuring their requests for capacity building on issues related to trade and health.[155] As noted above, it has also provided information to GATT and WTO panels.

C. WHO as a Standard-setter

One area in which WHO has performed a role in respect of the governance of the trade and health relationship, and in which some public health scholars and advocates argue that it should be more proactive, is in the development of international standards. Yach and Beaglehole write of the ‘increasing need to establish global norms in a wide range of spheres to balance the otherwise unrestrained influences of powerful policy actors’.[156] To do so, they argue, ‘public health capacities in trade and political science must be strengthened so as to effectively participate in the WTO where health issues are increasingly considered and to develop stronger WHO-led norms that could be used as the basis for resolving trade disputes in relation to products with health impacts’.[157] Magnusson sees international standards on diet and nutrition, for example, as having ‘a positive impact on global health by serving to “WTO proof” domestic and regional responses to chronic disease’.[158] Baumberg and Anderson note calls for a legally-binding international Framework Convention on Alcohol Policy, either modelled on the FCTC, or using an alternate approach, and argue that though ‘[t]his would not automatically make WTO-inconsistent policies somehow permissible ... it would provide an international community of support for such policies, and potentially help to manage the relationship between alcohol and trade. It may also add weight to the defence of such policies under trade disputes’.[159]

The notion that WHO should develop standards to assist in managing the trade and health relationship makes substantial institutional sense. As Magnussson points out, the WTO ‘is neither a scientific nor a health agency and it does not develop standards’.[160] But there are many different kinds of international standards and many different ways in which international standards may be relevant to the governance of trade and health, and the role that WHO can, or should, play will vary with these different kinds of standards.

The most direct way in which WHO-developed standards can have an impact on trade and health governance is through their effect under the TBT and SPS Agreements. Under Article 2.4 of the TBT Agreement, WTO Members are required to use any relevant international standards ‘as a basis for their technical regulations’ unless such standards would be ‘an ineffective or inappropriate means for the fulfilment of the legitimate objectives pursued’. Under Article 2.5, whenever a technical regulation applied for a legitimate objective is ‘in accordance with relevant international standards, it shall be rebuttably presumed not to create an unnecessary obstacle to international trade’.

Under Article 3.1 of the SPS Agreement, subject to certain exceptions, in order to [‘h]armonize sanitary and phytosanitary measures on as wide a basis as possible’, WTO members are required to ‘base their sanitary or phytosanitary measures on international standards, guidelines or recommendations, where they exist’. Under Article 3.2, measures which ‘conform to international standards, guidelines or recommendations’ are ‘deemed to be necessary to protect human, animal or plant life or health, and presumed to be consistent with the relevant provisions’ of the SPS Agreement and the GATT. Annex A of the SPS Agreement identifies the Codex Alimentarius Commission, a body established and administered jointly by the FAO and the WHO, as the recognized international standard-setter for food safety.[161] Atik writes that as a practical matter this means that such measures enjoy ‘substantial immunity’ from challenge before the WTO dispute settlement system.[162]

However, beyond these two examples, in which international standards have an explicit role in the application of the WTO agreements, the precise purpose and effect of international standards developed by, or through, WHO are much less clear. There may be dangers in entering too far into territory likely to be marked by some of the less desirable features of fragmentation.

D. Health Agreements to ‘Counterbalance’ the Effects of WTO Agreements?

The FCTC is the first treaty negotiated under the auspices of WHO. Its Foreword records that it was ‘developed in response to the globalization of the tobacco epidemic’, an epidemic ‘facilitated through a variety of complex factors with cross-border effects, including trade liberalization and direct foreign investment. Other factors such as global marketing, transnational tobacco advertising, promotion and sponsorship, and the international movement of contraband and counterfeit cigarettes have also contributed to the explosive increase in tobacco use.’ The framing of the FCTC as, in significant part, a response to trade liberalization, is common in the literature.[163]

Writing in 2002, when the FCTC was still being negotiated, Jose Alvarez argued that the idea that a tobacco control treaty should be negotiated through WHO could be seen as a proposal that ‘one international organization, the WHO, regulate tobacco at least in part because another, the WTO, has been altogether too successful in reducing barriers to the tobacco trade and has ignored the resulting negative externalities’.[164] In 2005, after its adoption by the World Health Assembly, Maya Prabhu and Sumudu Ataputtu wrote that the FCTC ‘represents the first time that WHO has exercised its considerable treaty-making powers in the name of public health, as an explicit counterbalance to another international legal regime’.[165]

In specific, the FCTC is a response to the World Trade Organization’s (WTO) very success in reducing barriers to the international tobacco trade, at the expense of significant health externalities. Thus, the FCTC marks a new chapter in the health vs. trade debates, debates which the authors believe are more likely to be amplified in the future.[166]

This idea of establishing health treaties to ‘counterbalance’ the effect of WTO agreements appears to have taken root. Labonte and Sanger argue that the FCTC ‘has raised the possibility of creating other health specific conventions outside of the ambit of WTO or other trade treaties’ and that ‘[b]y promoting conventions such as these national governments can strengthen the international legal and institutional basis for collaboration to promote health, and provide a counterbalance to international trade treaties.’[167] In an exploration of possible international arrangements to address the harms caused by alcohol, Room argues that the ‘strongest argument’ against adopting a non-binding instrument ‘may be the competitive force of binding conventions or treaties which intersect with the subject-matter under consideration’.[168] The ‘existence and development of trade and free market agreements globally (under the World Trade Organization), regionally and bilaterally’ is a ‘major consideration’ with respect to psychoactive substances which are also trade commodities, such as tobacco, alcohol and medications.[169] Room continues: ‘Trade dispute adjudications and negotiations have constrained the abilities of national and sub-national governments to restrict the alcohol market, and further such restrictions are under consideration. A binding public health-orientated agreement on alcohol is needed as a means of countering these developments.’[170]

This notion that legally binding agreements should be developed in one multilateral institution explicitly in order to counterbalance the effects of legally binding agreements developed through another represents a manifestation of what Helfer has described as ‘regime shifting’ – ‘an attempt to alter the status quo ante by moving treaty negotiations, lawmaking initiatives, or standard setting activities from one international venue to another’.[171] Regime shifting provides an opportunity to generate ‘counterregime norms’, either binding treaty rules or nonbinding soft law standards that ‘seek to alter the prevailing legal landscape’.[172] Not surprisingly, both states and NGOs seek out the forum most likely to deliver their desired policy outcomes, basing their ultimate choices on such factors as differences in state membership and influence, lawmaking methods, mechanisms for monitoring and dispute settlement, institutional cultures and permeability to outside influence.[173] They will often deliberately seek to create ‘strategic inconsistency’,[174] ‘to force change by explicitly crafting rules in one elemental regime that are incompatible with those in another’.[175] This can then ‘set the agenda for future efforts’, with diplomats operating in a legalized setting uncomfortable with ‘the existence of a glaring inconsistency across regimes’ looking for ways to ‘restore rule alignment’.[176]

While the pursuit of a ‘counterbalancing’ effect, or the creation of strategic inconsistency, can be unsettling for lawyers – the ‘drive for consistency’ being ‘a hallmark of legalization’[177] – it is not without both political and policy merit. It can be used to generate positive policy outcomes that could not be achieved through working only in the initial forum. Nevertheless, its effectiveness in practice can be difficult to predict, and when used as a counter to WTO treaties, it raises particular challenges.

First, it is not clear what effect legally binding agreements of the kind proposed, negotiated and adopted through WHO (or another body), would have on WTO obligations (and WTO panel and Appellate Body decisions). Of course, ultimately it depends what the content of such agreements is, how they deal with potential conflicts, and who their parties end up being. However, unless such agreements included specific conflicts clauses under which they would prevail over WTO agreements in the event of conflict and all WTO Members became parties to such agreements – conditions rather unlikely to come into effect – significant uncertainty would remain.

With respect to the former condition, the story of the negotiation of the FCTC is perhaps instructive. As Taylor describes, ‘the relationship between trade law and the FCTC was a keenly contested issue’ throughout the negotiations.[178] The contest was between the positions that the FCTC should take precedence over trade obligations in the event of conflict and that the FCTC should be developed and applied in a manner consistent with existing international trade law.[179] The contest was ultimately resolved on the final day of the sixth and final negotiating session, with the inclusion in the preamble of the words ‘Determined to give priority to their right to protect public health’, but with the treaty remaining silent on conflicts between the FCTC and agreements, such as the WTO agreements, concluded earlier in time, allowing Article 30 of the Vienna Convention on the Law of Treaties[180] to apply in the event of any conflict between the FCTC and any WTO agreements.[181]

While no two sets of negotiations are identical, either in their political and institutional context, or their treatment of major substantive questions, the FCTC experience suggests that it should not be assumed that other health agreements negotiated through WHO (or another body) would include a conflicts clause of the kind that was not agreed to in the tobacco context. It is arguable that the case for priority to tobacco control measures over trade obligations is a stronger one than for, for example, either alcohol or unhealthy foods, given the scale of harm caused by tobacco and the fact that it is, unlike these other products, inherently harmful, and having no safe level of use.

With respect to the latter condition, the WTO has 153 Members.[182] It is unlikely that all would become parties to these other proposed agreements – certainly unless their content was largely uncontroversial and accordingly rather ‘weak’. This is significant because the obligations contained in such agreements – including any effects on WTO obligations – would not apply to states that did not become parties to them.[183] Further, the extent to which WTO panels can take account at all of non-WTO obligations that are not held by all WTO members is a highly contested question.[184]

Thus, even between states that were both WTO Members and parties to the health agreements, the effects of the health agreements on trade obligations would likely be uncertain. The legal effects on obligations owed to WTO members that did not become parties to such health agreements would be likely to be minimal at best.

This is not to say that legally binding norms agreed to through WHO (or another forum) would have no effect on WTO obligations. It is likely that – at least if widely ratified – they would have significant political impact, increasing the political threshold for bringing trade challenges with respect to matters covered by such norms. They might also be used by panels, whether explicitly or sub silentio, for example in consideration of the necessity of health measures, including, perhaps, in assessing the importance of interests at stake or in demonstrating that certain measures are better regarded as complementary than alternative.

Nevertheless, there is a legitimate concern that negotiation and adoption of agreements in one institution, such as WHO, in order to ‘counterbalance’ the effects of WTO agreements, at least without also attempting to build substantial linkages between the two institutions (and other relevant institutions) with respect to the subject matter of the proposed agreements, could be a recipe for trouble – including poorly conceived law, significant uncertainty for both states and the institutions involved, inefficiency in the use of resources, and difficulties in implementation.

It should be pointed out here that, of course, WHO and WTO are institutions composed of, and governed, by states. There is substantial overlap between WHO’s 193 members[185] and WTO’s 153 members. Thus a ‘counterbalancing’ strategy does not simply potentially set two international institutions against one another. It also potentially creates cleavage between different government departments within the same state. This is likely to be more of a problem in some states than others, depending on capacity to manage such governance challenges. Fidler notes that even highly developed countries with significant governance capacities have had struggles in dealing with globalized problems.[186] ‘Many developing and least-developed countries do not ... have the governance capacity to address adequately globalized problems.’[187]

E The Need for Inter-institutional Processes

The most obvious response to the challenges and opportunities of fragmentation is, of course, better and principled coordination between those institutions whose mandates either overlap or complement one another (or both). Cottier, Pauwelyn and Burgi observe that ‘[w]hile institutions may be set up differently and operate side-by-side, real-life problems do not respect jurisdictional boundaries, and law-making in different institutions inherently spills over into other regulatory fields’.[188] Law-making ‘needs to entail mutual information and interaction between different fora and organizations’.[189] This is not only to avoid conflict but also to allow norm-creating organizations ‘to draw from each other’s unique competencies and mandates in order to deliver a better end-product to the international community’.[190] Such inter-institutional cooperation is most likely to be effective when it conforms to emerging principles of global administrative law that seek to safeguard transparent, reasoned and legitimate regulatory and administrative decision-making.[191]

In the final article of the Lancet series, Smith, Lee and Drager set out ‘an agenda for action’.[192] The authors make a number of suggestions for achieving greater coherence between trade and health, with action recommended at both the domestic and international levels to strengthen evidence on trade and health links; build trade and health engagement and capacity; and assert health goals in trade policy.[193] They make recommendations for action by a range of entities including WHO, WTO, the World Bank, the International Monetary Fund (IMF), national governments, NGOs and civil society, foundations and academics.[194] If adopted, their recommendations would assist in effecting the kind of inter-sectoral dialogue, learning and decision-making that forms the essential foundation of coherent policy-making and implementation.

Building on these recommendations, this paper focuses on action that might be taken to build more effective institutional linkages between the two key international agencies in the field, WHO and WTO. It is axiomatic that effective cooperation between these two organizations is essential to coherence at the international level (as well as at the domestic level). It is critical to recognize that WHO can only do so much on its own. If trade dominates the trade-health relationship by virtue of the relative legal and political strength of the WTO regime as compared to that of WHO and the fragmented regime of global health governance more broadly, and health does poorly as a result of that dominance, it seems clear that the problem cannot be adequately addressed without action both involving, and within, WTO, through which the value of health, and an understanding of its determinants, becomes more deeply internalized within the WTO system.

E. Exploring Some Possibilities

Some possible approaches are suggested here for further exploration. The aim of the suggested arrangements is to facilitate the kind of inter-institutional discussion, development of mutual understanding and cooperation needed to maximize the benefits and minimize the risks of fragmentation.[195]

1. A formal relationship should be established between WHO and WTO.

WTO has signed cooperation agreements with the IMF, the World Bank, WIPO[196] and the Office International des Epizooties (OIE)[197] and a memorandum of understanding with UNCTAD.[198] The IMF and World Bank have observer status in WTO bodies as provided for in their Agreements with the WTO whereas, as noted above, the WHO has observer status only in two committees (the Committee on Sanitary and Phytosanitary Measures and the Committee on Technical Barriers to Trade) and ad hoc observer status in three committees (the Council for Trade in Services, Council for Trade-related Aspects of Intellectual Property Rights, and the Council for Trade in Services, Special Sessions).[199] WHO has entered into agreements with the International Labour Organization (ILO),[200] FAO,[201] UNESCO,[202] the International Atomic Energy Agency (IAEA),[203] the United Nations Industrial Development Organization (UNIDO),[204] the International Fund for Agricultural Development (IFAD),[205] the Universal Postal Union (UPU)[206] and the OIE.[207]

A formal cooperation agreement would be useful both as a symbol of mutual recognition of the importance of the relationship between the two bodies – and between trade and health – and as providing a formal framework for ongoing discussions of linked issues and development, implementation and monitoring of joint activities.[208] Such an agreement could, for example, allow for exchanges of personnel between the two organizations,[209] a proactive step to build relationships and deepen understanding.

2. Joint committees of members of the two bodies should be established on specific trade and health issues, such as on trade and noncommunicable diseases.

Formal fora for discussion between states and sub-state regulatory actors, administered and technically supported by the Secretariats of the two organizations, should enable exploration of issues from both trade and health perspectives, the seeking of common ground, and significant learning for states and the two institutions. Issues to be addressed by the committees could be identified by the World Health Assembly, as the governing body of the specialized agency responsible for international health (at which the WTO has observer status).[210] Reports of such committees could be provided to the WTO General Council and the World Health Assembly through the Director-Generals of the two organizations.[211]

3. Joint inter-secretariat committees should be established between WTO and WHO on specific trade and health issues, again such as trade and noncommunicable diseases.

Matters to be addressed by such committees could be agreed by the Director-Generals of the two organizations. The purpose would be similar to that of joint committees of member states, though work done by the secretariats should be able to be deeper, more technical and carried out in a less overtly political context. Regular reports on the work of such committees could be provided to the joint committees of members of the two bodies recommended above in order to enhance the transparency and legitimacy of the activity. The work of inter-secretariat committees could assist in the identification of priority issues for reference to joint committees of states and facilitate the effective working of such committees once established.[212]

4. A Committee on Trade and Health should be established within the WTO, with WHO having observer status, and encouraged to actively participate in its work.

The establishment of such a committee would signal the importance to be attached to health by the WTO and provide a forum within WTO for discussion of health issues by states.[213] Such WTO committees exist with respect to the environment and development, established by the Ministerial Conference.[214] Alternatively, such a committee (or committees) could be established with respect to particular issues of trade and health, perhaps after request by the World Health Assembly.

5. Inter-agency task forces on specific ‘trade and health’ issues of concern should be established, including WHO, WTO and other relevant agencies.

For example, there is currently a United Nations Ad Hoc Interagency Task Force on Tobacco Control, which is chaired by WHO and comprises 17 agencies of the United Nations system and two organizations outside the UN system, including WTO.[215] The UN Secretary General provides a report to the Economic and Social Council every two years on progress made by the Task Force.[216] One possibility worth exploring would be broadening the mandate of the Task Force to deal with noncommunicable diseases more broadly, not only tobacco control. There would likely be substantial learning through consideration of the similarities and differences among various noncommunicable diseases, their risk factors and strategies for addressing them. To be effective, the Task Force should meet regularly and annual reports, rather than biennial reports, should be prepared.

For each of these proposals, the active participation of representatives of civil society should be provided for, enhancing the transparency and legitimacy of the work being performed, as well as its quality.

The idea behind these proposals is not only to facilitate dialogue and understanding, though these would be valuable outcomes in themselves. It would be hoped that the suggested processes would ultimately lead to the development of norms and institutional practices that better integrated legitimate health objectives into trade policy-making[217] and implementation, and legitimate trade objectives into health policy-making and implementation. Conflicts between trade and health cannot be avoided, but they can surely be better managed.

It is not suggested that it would be easy to achieve all, or indeed, any of the above proposals. Questions of political will, resources and governance arrangements would, of course, arise. It should also be acknowledged that, for those whose primary interest is in the promotion and protection of health, the proposals carry risks. They could lead to changes in the dynamic within WHO, bringing more ‘trade people’ into its work, potentially diluting its health focus, and weakening the norms that it develops, at least from a health perspective. They may also affect the organizational culture within WHO. For example, WHO is generally regarded as more open, including more inclusive of non-governmental organizations, than WTO.[218] This possibility of inter-institutional influence with respect to norms of process, manifesting either in formal rules or less formal institutional practices, should be carefully examined.

VI. CONCLUSION

As this year’s Lancet series on trade and health demonstrated, there are genuine problems in the governance of ‘trade and health’, both at the international and domestic levels. As this paper has argued, these are examples of much wider global governance stresses, which create fundamental challenges for both WTO and WHO, as they do for other institutions.

This article offers some suggestions for more structured inter-institutional cooperation between WTO and WHO. It argues that discussion by trade and health policy-makers, academics and advocates of the suggested (and other) possibilities for cooperation would be a fruitful exercise for both trade and health.

Ultimately, questions of inter-institutional arrangements between agencies with different mandates, values and cultures are complex practical, political and strategic ones,[219] which need to be carefully worked through. There are no perfect solutions, but there are opportunities to make a difference for the better.

[*] The authors would like to thank Constantinos Salonidis and Tania Voon for their comments on an earlier draft of this article.

[†] UICC Senior Legal Policy Adviser, International Union Against Cancer (UICC); Director, Law and Regulation, VicHealth Centre for Tobacco Control and The Cancer Council Victoria. Email <Jonathan.Liberman@cancervic.org.au>.

[‡] Visiting Professor, Georgetown University Law Center, Associate Professor, Melbourne Law School. Email: <a.mitchell@unimelb.edu.au>.

[1] Rhona MacDonald and Richard Horton, ‘Trade and Health: Time for the Health Sector to Get Involved’ (2009) 373 Lancet 273, 273.

[2] Rhona MacDonald and Richard Horton, ‘Trade and Health: Time for the Health Sector to Get Involved’ (2009) 373 Lancet 273, 273.

[3] Rhona MacDonald and Richard Horton, ‘Trade and Health: Time for the Health Sector to Get Involved’ (2009) 373 Lancet 273, 274.

[4] ‘To a certain degree, the WTO-and-health debates mirror anxieties about the compatibility of environmental, labour and human rights protections with WTO norms.’: Jeffrey Atik, ‘Health’ in Daniel Bethlehem et al (eds), The Oxford Handbook of International Trade Law (2009).

[5] General Agreement on Tariffs and Trade, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, Marrakesh, 15 April 1994.

[6] General Agreement on Trade in Services, Marrakesh Agreement Establishing the World Trade Organization, Annex 1B, Marrakesh, 15 April 1994.

[7] For discussion of the links between health and development, see, for example, World Health Organization, Investing in Health: A Summary of the Findings of the Commission on Macroeconomics and Health, available at http://www.who.int/macrohealth/infocentre/advocacy/en/investinginhealth02052003.pdf at 14 August 2009; R Dodd and A Cassels, ‘Health, Development and the Millennium Development Goals’ (2006) 100 Annals of Tropical Medicine and Parasitology 379.

[8] World Health Organization, Closing the Gap in a Generation: Health Equity Through Action on the Social Determinants of Health (2008).

[9] Ibid 26.

[10] Ronald Labonte, Ted Schrecker and David Sanders, ‘Trade Policy and Health Equity: Can They Avoid a Collision?’ in Trade and Health: Seeking Common Ground, Chantal Blouin, Jody Heymann and Nick Drager (ed) (2007) 226.

[11] David Fidler, Nick Drager, and Kelley Lee, ‘Managing the Pursuit of Health and Wealth: The Key Challenges’ (2009) 373 Lancet 325, 328-9.

[12] Ibid 329.

[13] Anna Shea, Nancy Ross, and Jody Heymann, ‘Trade, Inequalities, and Health: Making the Important Measurable’ in Chantal Blouin, Jody Heymann and Nick Drager (eds), Trade and Health: Seeking Common Ground, (2007) 202, 207.

[14] Ibid 203.

[15] David P Fidler, ‘Achieving Coherence in Anarchy: Foreign Policy, Trade and Health’ in Trade and Health: Seeking Common Ground, Chantal Blouin, Jody Heymann and Nick Drager (ed) (2007) 294, 311.

[16] Ibid.

[17] Shea, Ross and Heymann, above n 14, 212.

[18] Chantal Blouin, Mickey Chopra and Rolph van der Hoever, ‘Trade and Social Determinants of Health’ (2009) 373 Lancet 502, 503.

[19] Ibid.

[20] Ibid. See also John H. Jackson, ‘International Economic Law: Complexity and Puzzles’ (2007) 10(1) Journal of International Economic Law 3, 8: ‘While liberal trade policies have been important enhancers of citizen welfare in some countries, it is becoming clearer that such trade policies alone will most often not have a welfare enhancing effect.’ Jackson lists (8-9) a number of factors which can prevent economic progress, including lack of peace and security, lack of market infrastructure, bad governance, health, education, skills, attitudes, lack of human rights and societal stress due to large inequalities of economic status.

[21] Shea, Ross and Heymann, above n 14, 219.

[22] World Health Organization, above n 9, 31.

[23] Shea, Ross and Heymann, above n 14, 219-220.

[24] Ibid 220.

[25] Ibid. See also Blouin, Chopra and van der Hoever, above n 19, 503.

[26] Fons Coomans, ‘Sovereignty Fading Away? Prioritizing Domestic Health Needs Versus Promoting Free Trade’ in Ineke Boerefijn and Jenny E. Goldsmith (eds.), Changing Perceptions of Sovereignty and Human Rights: Essays in Honour of Cees Flinterman 123 (2009), 125-126.

[27] Andrew Mitchell and Elizabeth Sheargold, Global Governance: the World Trade Organization’s Contribution, (2009) 46 Alberta Law Review 1061, 1075-1076.

[28] Agreement on Trade-Related Aspects of Intellectual Property Rights, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, Marrakesh, 15 April 1994.

[29] Richard D Smith, Carlos Correa and Cecilia Oh, ‘Trade, TRIPS, and Pharmaceuticals’ (2009) 373 Lancet 684.

[30] Richard D Smith, Rupa Chanda, and Viroj Tangcharoensathien, ‘Trade in Health-Related Services’ (2009) 373 Lancet 593.

[31] See, eg, on tobacco: Benn McGrady, ‘Trade and Tobacco Control: Resolving Policy Conflicts Through Impact Assessment and Administrative Type International Laws’ (2008) 3 Asian Journal of WTO and International Health Law and Policy 341; Benn McGrady, ‘Trade Liberalisation and Tobacco Control: Moving from a Policy of Exclusion Towards a More Comprehensive Policy’ (2007) 16 Tobacco Control 280; Allyn L Taylor et al. ‘The Impact of Trade Liberalization on Tobacco Consumption’ in Prabhat Jha and Frank Chaloupka (ed) Tobacco Control in Developing Countries (2000) 343; Cynthia Callard, Hatai Chitanondh and Robert Weissman, ‘Why Trade and Investment Liberalisation May Threaten Effective Tobacco Control Efforts’ (2001) 10 Tobacco Control 68; Douglas Bettcher and Ira Shapiro, ‘Tobacco Control in an Area of Trade Liberalisation’ (2001) 10 Tobacco Control 65; on alcohol: Donald W Zeigler, ‘International Trade Agreements Challenge Tobacco and Alcohol Control Policies’ (2006) 25 Drug and Alcohol Review 567; Robin Room, ‘International Control of Alcohol: Alternative Paths Forward’ (2006) 25 Drug and Alcohol Review 581; Ben Baumberg and Peter Anderson, ‘Trade and Health: How World Trade Organization (WTO) Law Affects Alcohol and Public Health’ (2008) 103 Addiction 1952; on obesity: Roger S Magnusson, ‘Non-communicable Diseases and Global Health Governance: Enhancing Global Processes to Improve Health Development’ (2007) 3 Globalization and Health 1; Roger S Magnusson, ‘Rethinking Global Health Challenges: Towards a “Global Compact” for Reducing the Burden of Chronic Disease’ (2009) 123 Public Health 265; Blouin, Chopra and van der Hoever, above n 19; AM Thow and C Hawkes, ‘The implications of trade liberalization for diet and health: a case study from Central America’ (2009) 28 Global Health 5.

[32] World Health Assembly, Resolution of the 61st World Health Assembly: Prevention and Control of Noncommunicable Diseases: Implementation of the Global Strategy, WHA61.14 (24 May 2008).

[33] World Health Organization, 2008-2013 Action Plan for the Global Strategy for the Prevention and Control of Noncommunicable Diseases (2008) 9.

[34] Ibid.

[35] Ibid

[36] Ibid 13.

[37] Ibid 9.

[38] Ibid 10.

[39] Magnusson, ‘Rethinking Global Health Challenges’ above n 32, 268. See also Fidler, above n 16 at 321; Derek Yach and Robert Beaglehole, ‘Globalization of Risks for Chronic Diseases Demands Global Solutions’ (2004) 3 Chronic Diseases and Global Solutions 215, 220.

[40] International Law Commission, Report of the Study Group of the International Law Commission as finalized by the Chairman, M Koskenniemi, Fragmentation of International Law: Difficulties Arising from the Diversification and Fragmentation of International Law ILC, UN Doc, A/CN.4/L.682 and Corr.1 and Add.1 (13 April 2006) para 7.

[41] Ibid para 8.

[42] Victor Mosoti, ‘Institutional Cooperation and Norm Creation in International Organizations’ in Thomas Cottier, Joost Pauwelyn and Elisabeth Burgi (ed) Human Rights and International Trade (2005) 165, 167.

[43] Ibid

[44] Gerhard Hafner, ‘Pros and Cons Ensuing from Fragmentation of International Law’ (2004) 25 Michigan Journal of International Law 849, 854-5.

[45] Joost Pauwelyn, ‘Bridging Fragmentation and Unity: International Law as a Universe of Inter-Connected Islands’ (2004) 25 Michigan Journal of International Law 903, 904.

[46] Ibid.

[47] Ibid.

[48] Lawrence Helfer, ‘Regime Shifting: The TRIPs Agreement and New Dynamics of International Intellectual Property Lawmaking’ (2004) 29 Yale Journal of International Law 1, 82.

[49] Diana Chigas et al, ‘Negotiating Across Boundaries: Promoting Health in a Globalized World’ in Trade and Health: Seeking Common Ground, Chantal Blouin, Jody Heymann and Nick Drager (ed) (2007) 325, 326.

[50] Ibid.

[51] Magnusson, ‘Non-communicable Diseases and Global Health Governance’ above n 32, 3.

[52] Ibid 3-4.

[53] Thomas Cottier, Joost Pauwelyn and Elisabeth Burgi, ‘Linking Trade Regulation and Human Rights in International Law: An Overview’ in Thomas Cottier, Joost Pauwelyn and Elisabeth Burgi (ed) Human Rights and International Trade (2005) 1, 10.

[54] Allyn L Taylor, ‘Governing the Globalization of Public Health’ (2004) Journal of Law, Medicine and Ethics 500, 502-3.

[55] 503. Other international organizations that could be added to Taylor’s list include the United Nations Office on Drugs and Crime (UNODC), the International Atomic Energy Agency (IAEA) and the International Labour Organization (ILO). This combined list remains far from complete, indicating the range of areas of policy that impact either directly or indirectly on health.

[56] Lawrence O Gostin and Allyn L Taylor, ‘Global Health Law: A Definition and Grand Challenges’ (2008) 1 Public Health Ethics 53, 60. See also Magnusson, ‘Rethinking Global Health Challenges’, above n 32, 266-7; Lawrence O Gostin, ‘A Proposal for a Framework Convention on Global Health’ (2007) 10 Journal of International Economic Law 989, 990-1.

[57] Fidler, Drager and Lee, above n 12, 327.

[58] Fidler, above n 16, 299.

[59] Mitchell and Sheargold, above n.., 1064.

[60] Ibid 300.

[61] Ibid 299.

[62] David W Leebron, ‘Linkages’ (2002) 96 American Journal of International Law 5, 8.

[63] Ibid. See also Fidler, above n 16, 314 and Hafner, above n 47, 854.

[64] International Law Commission, above n 43, para 14; Mosoti, above n 45, 168.

[65] Ibid, International Law Commission, para 14.

[66] Mosoti, above n 45, 173.

[67] Ibid 168.

[68] Ibid 168.

[69] GATT Doc. LT/UR/A-2/DS/U/1 (signed 15 April 1994).

[70] Fidler, above 16, 315.

[71] Kelley Lee, Devi Sridhar and Mayur Patel, ‘Bridging the Divide: Global Governance of Trade and Health’, (2009) 373 Lancet 416, 418.

[72] Ibid.

[73] Ibid.

[74] Fidler, Drager and Lee, above n 12, 327.

[75] Ibid.

[76] Ibid 328. See also Gostin and Taylor, above n 59, 60.

[77] Fidler, Drager and Lee, ibid 328. See also Pauwelyn, above n 48, 905. Article 22 of the DSU sets forth procedures aiming at inducing compliance with DSB rulings and recommendations. Article 23 establishes the compulsory character of the dispute settlement mechanism envisaged by the DSU.

[78] World Health Organization International Health Regulations, Geneva (2005).

[79] WHO Framework Convention on Tobacco Control, 21 May 2003, (2003) 42 ILM 518.

[80] Fidler, Drager and Lee, above n 12, 328. See also Gostin and Taylor, above 59, 60.

[81] See generally Bilateral and Regional Trade Agreements: Commentary and Analysis, Simon Lester and Bryan Mercurio (eds.) (2009). The WTO contains a regional trade agreements database on its website, available at http://www.wto.org/english/tratop_e/region_e/region_e.htm.

[82] Fidler, Drager and Lee, ibid 328.

[83] The words ‘the same conditions’ are used in the GATT.

[84] The words ‘like conditions’ are used in the GATS.

[85] See also the preamble to the TBT Agreement: ‘Recognizing that no country should be prevented from taking measures necessary to ensure the quality of its exports, or for the protection of human, animal or plant life or health, of the environment, or for the prevention of deceptive practices, at the levels it considers appropriate, subject to the requirement that they are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail or a disguised restriction on international trade, and are otherwise in accordance with the provisions of this Agreement’.

[86] Atik identifies as such the inadequately deferential nature of the ‘necessity requirement’ in Article XX(b) GATT, the inability of panels to address relevant scientific claims, the lack of harmonization between justified measures under Article XX(b), and the repercussions of the EC-US dispute over the use of growth hormones in beef production. See further Jeffery Atik, ‘Health’ in Daniel Bethlehem, Donald McRae, Rodney Neufeld and Isabelle Van Damme (eds), The Oxford Handbook of International Trade Law (2009) 598-599.

[87] Note that for health measures not falling within the ambit of the SPS Agreement, Article XX(b) of GATT 1994 remains the relevant provision, Atik, above n. , 599.

[88] These are defined in clause 1 of Annex A to the Agreement.

[89] Articles 2.2 and 5.7.

[90] Article 2.3.

[91] Article 2.3. See also the preamble to the SPS Agreement: ‘Reaffirming that no Member should be prevented from adopting or enforcing measures necessary to protect human, animal or plant life or health, subject to the requirement that these measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between Members where the same conditions prevail or a disguised restriction on international trade’.

[92] See, eg, Benn McGrady, ‘TRIPS and Trademarks: The Case of Tobacco’ (2004) 3 World Trade Review 53, 68.

[93] World Trade Organization Ministerial Council, Declaration on the TRIPS Agreement and Public Health (the Doha Declaration) (14 November 2001). See generally Andrew D Mitchell and Tania Voon, ‘Patents and Public Health in the WTO, FTAs and Beyond: Tension and Conflict in International Law’ (2009) 43 Journal of World Trade 571.

[94] Ibid para 4.

[95] Ibid para 5a. Coomans argues that the statement effectively waived TRIPS requirements that restricted production under compulsory licensing to the domestic market, above n. , 129. For a discussion of the circumstances of the negotiation and adoption of the Doha Declaration and of the legal status of the declaration, see, eg, James T Gatthi, ‘The Legal Status of the Doha Declaration on TRIPS and Public Health Under the Vienna Convention on the Law of Treaties’ (2002) 15 Harvard Journal of Law and Technology 291; Ellen ‘t Hoen, ‘TRIPS, Pharmaceutical Patents, and Access to Essential Medicines: A Long Way from Seattle to Doha’ (2002) 3 Chicago Journal of International Law 27; Duncan Matthews, ‘WTO Decision on Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health: A Solution to the Access to Essential Medicines Problem?’ (2004) 7 Journal of International Economic Law 73, 81-3; Andrew D Mitchell and Tania Voon, ‘Patents and Public Health in the WTO, FTAs and Beyond: Tension and Conflict in International Law’ (2009) 43 Journal of World Trade 571, 578-9.

[96] Coomans, above n. , 132.

[97] Ibid., 136-141.

[98] Art 2 (emphasis added). See also Fidler, above n 16, 307-8.

[99] See, eg, Callard, Chitanondh and Weissman, above n 32, 69.

[100] Baumberg and Anderson, above n 32, 1953. See also Ronald Labonte and Matthew Sanger, ‘Glossary of the World Trade Organisation and Public Health: Part 2’ (2006) 60 Journal of Epidemiology and Community Health 738, 743.

[101] Andrew T. Guzman, ‘Trade, Labor, Legitimacy (2003) 91 California Law Review 855, 862.

[102] Marrakesh Agreement Establishing the World Trade Organization, Marrakesh, 15 April 1994.

[103] Article 3.2 of the Understanding on Rules and Procedures Governing the Settlement of Disputes, Marrakesh Agreement Establishing the World Trade Organization, Annex 2, Marrakesh, 15 April 1994 (Dispute Settlement Understanding).

[104] Mosoti, above n 45, 176.

[105] Appellate Body Report, Japan – Alcoholic Beverages II, p. 14, DSR 1996:I, 97, at 108. See also Richard H Steinberg, ‘Judicial Lawmaking at the WTO: Discursive, Constitutional, and Political Constraints’ (2004) 98 American Journal of International Law 247, 254.

[106] Appellate Body Report, US-Final Anti-dumping Duties on Stainless Steel from Mexico, WT/DS344/AB/R (adopted Apr. 30, 2008), [160].

[107] WTO Appellate Body Report, European Communities – Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R (12 March 2001), para 172.

[108] Of course, this is a matter of judgment, and throughout the evolution of the jurisprudence, different views have been expressed about the amount of policy space it leaves to governments. For the view that significant policy space is reserved, see eg, Baumberg and Anderson, above n 32, 1954-5; Alyssa Woo, ‘Health Versus Trade: The Future of the WHO’s Framework Convention on Tobacco Control’ (2002) 35 Vanderbilt Journal of Transnational Law 1731, 1763-4; Debra P Steger, ‘Afterword: The “Trade and ...” Conundrum – A Commentary’ (2002) 96 American Journal of International Law 135, 144; Yach and Beaglehole, above n 40, 222; Bettcher and Shapiro, above n 32, 65-66. For the alternate view, see, eg Zeigler above n 32, 575; Labonte and Sanger above n 103, 658; Callard, Chitanondh and Weissman, above n 32, 69.

[109] WTO Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres, WT/DS332/AB/R (3 December 2007). The interpretation in Brazil - Retreaded Tyres is broadly consistent with, and builds on, previous cases, though it may include a stronger recognition of the importance of not treating complementary measures as alternatives: see Benn McGrady, ‘Necessity Exceptions in WTO Law: Retreaded Tyres, Regulatory Purpose and Cumulative Regulatory Measures’ (2008) 12(1) Journal of International Economic Law 153, 163-8.

[110] Brazil – Retreaded Tyres, ibid, para 210.

[111] Ibid para 178

[112] Ibid para 210.

[113] Ibid paras 146-7 and 151.

[114] Ibid para 151.

[115] Ibid.

[116] Ibid.

[117] By allowing necessity to be ‘provisionally’ established, Atik notes that the Appellate Body in Brazil – Measures Affecting Imports of Retreaded Tyres ‘softened’ the requirements of Article XX(b): Atik, above n. , 615.

[118] Brazil – Retreaded Tyres, para 156

[119] Ibid para 156, citing WTO Appellate Body Report, United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/AB/R (7 April 2005) para 308.

[120] Ibid paras 181 and 211.

[121] To be sure, criticisms have been made of the jurisprudence. For example, Schoenbaum, over a decade ago, argued that the requirement that governments adopt the ‘least trade restrictive’ measure reasonably available ‘turns the clause on its head’, with ‘necessary’ no longer relating to the objective but to the departure from the trade agreement: Thomas J Schoenbaum, ‘International Trade and Protection of the Environment: The Continuing Search for Reconciliation’ (1997) 91 American Journal of International Law 268, 276. This interpretation (277) ‘constitutes too great an infringement on the sovereign powers of states to take decisions (one hopes) by democratic means so as to solve problems and satisfy their constituents’. McGrady argues that neither the panel not the Appellate Body ‘has a legitimate role in evaluating the importance of domestic policy goals that fall within the scope of the provision’: McGrady, above n 112, 162.

[122] Magnusson, ‘Non-communicable Diseases and Global Health Governance’, above n 32, 8. See also McGrady, ‘Trade Liberalisation and Tobacco Control’, above n 32, 280; Baumberg and Anderson, above n 32, 1952; Callard, Chitanondh and Weissman, above n 32, 69; Ira S Shapiro, ‘Treating Cigarettes as an Exception to the Trade Rules’ (2002) XXII SAIS Review 87, 94.

[123] E.R. Schaffer, J. E. Brenner and T. P. Houston, ‘International Trade Agreements; A Threat to Tobacco Control Policy, (2005) Tobacco Control 14, available at http://tobaccocontrol.bmj.com/content/14/suppl_2/ii19.full.

[124] Constitution of the World Health Organization, New York, 22 Jul 1946, (Off. Rec. Wld Hlth Org., 2, 100), Article 1.

[125] Charter of the United Nations (entered into force 24 October 1945), Article 57.

[126] Agreement between the United Nations and the World Health Organization. Adopted by the First World Health Assembly on 10 July 1948 (Off. Rec. Wld Hlth Org., 13, 81, 321).

[127] Constitution of the World Health Organization, above n 127, Article 2(a).

[128] Ibid Article 2(b).

[129] Ibid Article 2(k).

[130] Ibid Article 2(n).

[131] Ibid Article 2(q).

[132] Ibid Article 2(u).

[133] Ibid Article 2(v).

[134] Gostin, above n 59, 996.

[135] Taylor, above n 57, 504.

[136] Ibid.

[137] Ibid 505.

[138] Ibid 507. See also Gostin, above n 59, 996.

[139] Dispute Settlement Understanding, above n 106, Article 13.1.

[140] Ibid Article 13.2.

[141] Ibid.

[142] GATT Panel Report – Thailand – Restrictions on Importation of and Internal Taxes on Cigarettes, DS10/R – 37S/200 (Nov. 7, 1990), [50-56]. ‘In Thailand Cigarettes, the Panel rather awkwardly consulted the WHO in order to access scientific expertise, which it then arguably disregarded.’ Jeffrey Atik, ‘Heath’p 599?

[143] WTO Panel Report, European Communities – Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/R, WT/DS292/R, WT/DS293/R (29 September 2006), [4.137, 4.140].

[144] Gostin, above n 59, 996-7.

[145] World Health Organization, International Trade and Health, Report by the Secretariat to the 116th Session of the Executive Board, 28 April 2005, EB116/4, para 1. See also Margaret Bomba, ‘Exploring Legal Frameworks to Mitigate the Negative Effects of International Health-Worker Migration’, (2009) 89 Boston University Law Review 1103, 1124-1125, 1133.

[146] Lee, Sridhar and Patel, above n 74, 419. See also Taylor, above n 57, 505. The programme’s website is at http://www.who.int/trade/en/ at 14 August 2009.

[147] World Health Assembly, International Trade and Health, Fifty-ninth Session of the World Health Assembly (2006) WHA59.26.

[148] Helfer, above n 51, 42.

[149] Commission on Intellectual Property Rights, Innovation and Public Health, Report of the Commission on Intellectual Property Rights, Innovation and Public Health World Health Organization, Geneva 2006.

[150] World Health Organization, above n 148, para 10.

[151] http://www.who.int/trade/resource/tradewp/en/index.html at 14 August 2009.

[152] World Health Organization and World Trade Organization, WTO Agreements and Public Health (2002).

[153] World Health Organization, above n 148, para 14.

[154] http://www.wto.org/english/thewto_e/igo_obs_e.htm

[155] http://www.who.int/trade/resource/tradewp/en/index.html at 14 August 2009. See also Richard D Smith, Kelley Lee and Nick Drager, ‘Trade and Health: An Agenda for Action’ (2009) 373 Lancet 768, 772.

[156] Yach and Beaglehole, above n 40, 228.

[157] Ibid.

[158] Magnusson, ‘Rethinking Global Health Challenges’, above n 40, 270.

[159] Baumberg and Anderson, above n 32, 1956.

[160] Magnusson, ‘Non-communicable Diseases and Global Health Governance’, above n 40, 7.

[161] Para 3(a).

[162] Atik, above n. , 602.

[163] See, for example, Allyn L Taylor, and Douglas Bettcher, ‘WHO Framework Convention on Tobacco Control: A Global “Good” for Public Health’ (2000) 78 Bulletin of the World Health Organization 920, 924-5 and McGrady, ‘Trade and Tobacco Control’, above n 32.

[164] Jose E Alvarez, ‘The WTO as Linkage Machine’ (2002) 96 American Journal of International Law 146, 149.

[165] Maya Prabhu and Sumudu Atapattu, ‘The WHO Framework Convention on Tobacco Control: When the WTO Meets the WHO’ in Marie-Claire Cordonier Segger and C G Weeramantry (ed), Sustainable Justice: Reconciling Economic, Social and Environmental Law (2005) 365, 366 (emphasis added).

[166] Ibid.

[167] Labonte and Sanger, above n 103, 742 (emphasis added).

[168] Room, above n 32, 586.

[169] Ibid.

[170] Ibid 589 (emphasis added).

[171] Helfer, above n 51, 14.

[172] Ibid.

[173] Ibid. See also Kal Raustiala, ‘Density and Conflict in International Intellectual Property Law’ (2007) 40 University of California, Davis Law Review 1021, 1027.

[174] Kal Raustiala and David G Victor, ‘The Regime Complex for Plant Genetic Resources’ (2004) 59 International Organization 277, 302.

[175] Ibid 301-2.

[176] Ibid.

[177] Ibid 300.

[178] Allyn L Taylor, ‘Trade, Human Rights and the WHO Framework Convention on Tobacco Control: Just What the Doctor Ordered?’ in Thomas Cottier, Joost Pauwelyn and Elisabeth Burgi (ed) Human Rights and International Trade (2005) 322, 326.

[179] Ibid 326-8.

[180] Vienna Convention on the Law of Treaties 23 May 1969, (1969) 8 ILM 679.

[181] Taylor, above n 184, 326-8.

[182] Understanding the WTO: The Organization http://www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm at 14 August 2009.

[183] See Werner Meng, ‘Conflicting Rules in the WHO FCTC and Their Impact’ in Thomas Cottier, Joost Pauwelyn and Elisabeth Burgi (ed) Human Rights and International Trade (2005) 334. at 335.

[184] See, eg, Baetens, F. (2008). "Muddling the Waters of Treaty Interpretation? Relevant Rules of International Law in the MOX Plant OSPAR Arbitration and EC - Biotech Case." Nordic Journal of International Law 77: 197; Joost Pauwelyn, Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law (2003); Joost Pauwelyn, ‘Bridging Fragmentation and Unity: International Law as a Universe of Inter-Connected Islands’ (2004) 25 Michigan Journal of International Law 903; David Palmeter and Petros C Mavoridis, ‘The WTO Legal System: Sources of Law’ (1998) 92 American Journal of International Law 398; Gabrielle Marceau, ‘WTO Dispute Settlement and Human Rights’ (2002) 13 European Journal of International Law 753; Benn McGrady, ‘Fragmentation of International Law or “Systemic Integration” of Treaty Regimes: EC-Biotech Products and the Proper Interpretation of Article 31(3)(c) of the Vienna Convention on the Law of Treaties’ (2008) 42 Journal of World Trade 589.

[185] http://www.who.int/countries/en/ at 14 August 2009.

[186] Fidler, above n 17, 302.

[187] Ibid.

[188] Cottier, Pauwelyn and Burgi, above n 56, 8.

[189] Ibid.

[190] Mosoti, above n 45, 173.

[191] See generally Mitchell and Sheargold, above n.

[192] Smith, Lee and Drager, above n 161.

[193] Ibid 769-772.

[194] Ibid.

[195] This paper does not examine either the possibility of amendments being made to any of the WTO Agreements or a radical change to global health governance involving a ‘hardening’ of legal obligations, such as by agreement to new, more specific health-related legal obligations or the introduction of dispute settlement procedures that might rival those of the WTO. This is not to suggest that such developments could never occur, but rather to explore some more incremental changes that might be made within existing arrangements. Other suggestions include the encouragement by the WTO of its Members to ratify human rights treaties and the enforcement of such requirement through the use of trade sanctions and the dispute settlement system, see generally Phillip Countryman, ‘International Trade and World Health Policy: Helping People Reach their Full Potential’ (2009) 21 Pace International Law Review 241, 273-278.

[196] http://www.wto.org/english/tratop_e/TRIPs_e/wtowip_e.htm

[197] http://www.oie.int/ENG/OIE/accords/en_accord_omc.htm

[198] Steve A Charnowitz, ‘A New WTO Paradigm for Trade and the Environment’ [2007] SGYrBkIntLaw 3; (2007) 11 Singapore Yearbook of International Law 15, 29.

[199] http://www.wto.org/english/thewto_e/igo_obs_e.htm

[200] Agreement between the International Labour Organisation and the World Health Organization. Adopted by the First World Health Assembly on 10 July 1948 (Off. Rec. Wld Hlth Org., 13, 81, 322).

[201] Agreement between the Food and Agriculture Organization of the United Nations and the World Health Organization. Adopted by the First World Health Assembly on 17 July 1948 (Off. Rec. Wld Hlth Org., 13, 96, 323).

[202] Agreement between the United Nations Educational, Scientific and Cultural Organization and the World Health Organization. Adopted by the First World Health Assembly on 10 July 1948 (Off. Rec. Wld Hlth Org., 13, 96, 323).

[203] Agreement between the International Atomic Energy Agency and the World Health Organization. Adopted by the Twelfth World Health Assembly on 28 May 1959 in resolution WHA12.40.

[204] Agreement between the United Nations Industrial Development Organization and the World Health Organization. Adopted by the Forty-second World Health Assembly on 19 May 1989 in resolution WHA42.21.

[205] Agreement between the International Fund for Agricultural Development and the World Health Organization. Adopted by the Thirty-third World Health Assembly on 23 May 1980 in resolution WHA33.21.

[206] Agreement between the World Health Organization and the Universal Postal Union. Adopted by the Fifty-second World Health Assembly on 24 May 1999 in resolution WHA52.6.

[207] Agreement Between the Office International Des Espizooties and the World Health Organization. Adopted by the Fifty-seventh World Health Assembly on 22 May 2004 in resolution WHA57.7.

[208] See Lee, Sridhar and Patel, above n 74, 420.

[209] WHO’s agreements with ILO (Art V), FAO (Art VII) and UNESCO (Art VI) allow for ‘interchange of personnel on a temporary or permanent basis, in appropriate cases, in order to obtain the maximum benefit from their services’. In the agreement between WHO and UNIDO (Art 8), the two organizations ‘agree to co-operate in order to facilitate the interchange of staff and to promote efficiency and effective co-ordination on their respective activities’.

[210] Work with other international organizations: IGOs in which the WTO regularly or occasionally participate as an observer http://www.wto.org/english/thewto_e/coher_e/wto_observership_e.htm at 14 August 2009.

[211] WHO’s agreements with ILO (Art III), FAO (Art III) and UNESCO (Art IV) and UNIDO (Art 6) allow for the establishment of joint Committees to which ‘any question of common interest’ may be referred.

[212] WHO’s agreement with FAO (Art VI) provides for establishment by agreement of ‘inter-secretariat committees to facilitate co-operation in connexion with specific programmes of work or projected activities with which the two organizations may be mutually concerned’. WHO’s agreement with IAEA (Art V) provides for the establishment of joint committees of secretariats to be convened ‘when appropriate to consider questions of substantive interest to both parties’.

[213] Fidler suggests such a committee or working group and notes that it could provide ‘a catalyst for broadening and deepening domestic attempts to integrate trade and health policies: Fidler, above n 16, 317.

[214] The Committee on Trade and Environment: see http://www.wto.org/english/tratop_e/envir_e/wrk_committee_e.htm at 14 August 2009; and the Committee on Trade and Development: see http://www.wto.org/english/tratop_e/devel_e/d3ctte_e.htm at 14 August 2009. Charnowitz writes of the Committee on Trade and the Environment that although it has not reached any significant decisions,’ it may be having some positive impact, in serving as a continuing forum on international trade and the environment’: Charnowitz, above n 205, 28.

[215] United Nations Ad Hoc Interagency Task Force on Tobacco Control http://www.who.int/tobacco/global_interaction/un_taskforce/en/index.html at 14 August 2009.

[216] Ibid.

[217] For example, declarations on ‘trade and health’ matters could be made by the Ministerial Council or interpretations issued by the Ministerial Council or the General Council under Article IX:2 of the Marrakesh Agreement.

[218] For discussion of the culture of WTO, see, eg, Mosoti, above n 45, 175; Daniel C Esty, ‘Good Governance at the World Trade Organization: Building a Foundation of Administrative Law’ (2007) 10 Journal of International Economic Law 509; Steger above n 111, 140-1; Edith Brown Weiss, ‘Trade, Investment and the Environment: Closed Boxes?’ (2006) 100 American Society of International Law Proceedings 25, 25-6.

[219] See John H Jackson ‘Afterword: The Linkage Problem – Comments on Five Texts’ (2002) 96 American Journal of International Law 118, 122: ‘To flesh out the details of a landscape for making these power allocation decisions requires elaborate analysis and no-nonsense empirical studies, weighing not only the apparent or relevant needs for cooperation at an institutional level involving participation by many nations, but also the caliber and character of the available international institutions that might be used. Does a particular institution have the resources or effective participants, or fulfill the important democratic legitimacy criteria, or have the means to achieve cooperation between the players so as to be effective both in working towards its goals and in preserving or enhancing other important goals (such as reducing disputes, treating all kinds of societies fairly, enhancing the appropriate efficiency of markets, and granting national societies “margins of appreciation”)?’