Interpretation of wto agreements in the context of human rights

HO CHI MINH CITY UNIVERSITY OF LAW
MANAGING BOARD
OF SPECIAL TRAINING PROGRAMS
------ -----

BACHELOR THESIS
INTERNATIONAL LAW MAJOR

INTERPRETATION OF WTO AGREEMENTS
IN THE CONTEXT OF HUMAN RIGHTS:
A CASE STUDY OF ARTICLE XX GATT 1994 AND
TRIPS AGREEMENT
Student: Tran Thi Cam Thach
Student Code: 0955050186

Class:

CLC34

Supervisor: Ph.D Le Thi Anh Nguyet

HO CHI MINH CITY
2013


HO CHI MINH CITY UNIVERSITY OF LAW
MANAGING BOARD
OF SPECIAL TRAINING PROGRAMS
------ -----

BACHELOR THESIS

REGULAR TRAINING
COURSE 34TH (ACADEMIC YEAR 2009 - 2013)

INTERPRETATION OF WTO AGREEMENTS
IN THE CONTEXT OF HUMAN RIGHTS:
A CASE STUDY OF ARTICLE XX GATT 1994 AND
TRIPS AGREEMENT

Student: Tran Thi Cam Thach
Student Code: 0955050186
Class:
CLC34
Supervisor: Ph.D Le Thi Anh Nguyet

HO CHI MINH CITY
2013


Statutory Declaration
I hereby affirm that this thesis, submitted in fulfillment of the requirements for
the bachelor thesis of the Faculty of International Law, Hochiminh City
University of Law, is wholly my own work unless otherwise referenced or
acknowledged. All thoughts or quotations which were inferred from different
sources are clearly cited as such.
Hochiminh, 15th July 2013

Tran Thi Cam Thach


TABLE OF CONTENT

INTRODUCTION ........................................................................................ 1
CHAPTER ONE: THE RELATIONSHIP BETWEEN HUMAN
RIGHTS AND THE WTO .......................................................................... 7
1.1 Human rights terminology ....................................................................................... 7
1.2 The right to health and the right to life as two important human rights ................ 10
1.3 Does WTO agreements cover ―Human rights‖? .................................................... 12
1.3.1 ―Human rights‖ before Uruguay round .......................................................... 12
1.3.2 ―Human rights‖ in the WTO‘s legislation ...................................................... 14
1.4 Doha development agenda towards Public health ................................................ 15
1.4.1 Historical development of the Doha round ..................................................... 15
1.4.2 Negotiating process towards Public health ..................................................... 18
1.4.3 Doha round‘s declaration ................................................................................ 20
1.4.4 Is Doha declaration binding? .......................................................................... 21

CHAPTER 2: INTERPRETATION OF THE GATT’S ARTICLE XX
AND TRIPS IN THE CONTEXT OF HUMAN RIGHTS ..................... 25
2.1 Grounds for the interpretation of Article XX GATT 1994 and TRIPs agreement in
the context of ―Human rights‖ ..................................................................................... 25
2.1.1 Dispute Settlement Bodies competence to interpret Article XX GATT 1994
and TRIPs agreement in the context of human rights-is it feasible? ....................... 26
2.1.2 Limitation for WTO Dispute Settlement Bodies in interpreting issues related
to human rights ........................................................................................................ 30


2.2 ―Human rights‖ content in Article XX GATT 1994.............................................. 36
2.2.1 Public Morals –US Gambling ......................................................................... 36
2.2.2 Protection of Human life or health-Thailand Cigarettes and EC Asbestos .... 39
2.2.3 Measures relating to the products of ―prison labor‖ ....................................... 41
2.2.4 Conservation of exhaustible natural resources- US Shrimp ........................... 42

2.3 ―Human rights‖ content in TRIPs .......................................................................... 44
2.3.1 Intellectual property right and human rights relation ..................................... 44
2.3.2 Human rights in TRIPs ................................................................................... 45

CHAPTER 3: WTO JURISPRUDENCE ON CASES “RELATING
TO” HUMAN RIGHTS ............................................................................. 52
3.1 United States – Import Prohibition of Certain Shrimp and Shrimp Products (WT-DS
58) ................................................................................................................................ 52
3.1.1 Facts of the case .............................................................................................. 54
3.1.2 ―Sustainable development‖ consideration in relation to interpreting
―Exhaustive natural resource‖ terminology ............................................................. 57
3.1.3 Evaluating Appellate Body‘s report over ―Sustainable development‖
consideration in relation to interpreting ―Exhaustive natural resource‖ terminology
................................................................................................................................. 60
3.2 Canada – Patent Protection of Pharmaceutical Products Case WT/DS 114 .......... 64
3.2.1Facts of the case ............................................................................................... 64
3.2.2 ―Public health‖ consideration in relevant provisions‘ interpretation .............. 68
3.2.3 Evaluating Panel‘s report toward relevant provisions‘ interpretation ............ 68

CONCLUSION ........................................................................................... 70


LIST OF ABBREVIATIONS
DSU

Dispute Settlement Understanding

EC

European Community

GATS

The General Agreement on Trade in Services

GATT

The General Agreement on Tariffs and Trade

SPS

Agreement on Sanitary and Phytosanitary Measures

TRIPs

Agreement on Trade-Related Aspects of Intellectual
Property Rights

UN

The United Nations

WTO

World Trade Organization


1

INTRODUCTION

1. Imperativeness of the Study
WTO is an international organization which seeks for trade liberalization.
Also, it is a place for settle trade dispute among its member nations. As for human
rights, no provision in WTO agreements does cite human rights as an official
terminology. In recent years, the linkage of human rights standards and trade
measures has nevertheless become a much discussed topic in international relations
by scholars, human rights specialists, socialist and jurisprudents also. Besides, there
have been a number of scholars rejecting the relationship between human rights and
the WTO as well as the WTO Dispute Settlement Bodies‘ competence toward
human right interpretation.
Whether WTO Dispute Settlement Bodies are obligatory to interpret WTO
provisions in the context of human rights? The answer is yes. WTO agreements do
contain certain so-called-human rights terminologies. Outstandingly, Article XX
GATT 1994 and TRIPs agreement express most obviously the relation to human
rights, specifically, the two fundamental human rights- the right to life and the right
to health. These provisions are contained in WTO covered agreements in term of
Article 3.2 of DSU. Additionally, Dispute Settlement Bodies are bound by Vienna
convention on the law of treaties which referring to several interpretive tools to
examine human rights terms.
Significantly, positive moments have been taken by WTO members and
WTO Dispute Settlement Bodies towards interpreting WTO agreements in the
context of human rights.
First of all, WTO‘s goal is to improve the welfare of its member countries‘
people. However, TRIPs agreement which gave birth to patent impedes poor people
from access to affordable medicine, this in turn affects adversely to human right to
health. In reality, a potential number of member countries, especially, developing
countries are in extreme difficulty of facing with several severe diseases,
particularly AIDS. But Doha negotiation over ―TRIPs and Public health‖ and its

2

declaration which firmly recognized State member obligation to protect public
health are salient example for WTO‘s effort toward public health enhancement.
This calls to mind the attention of the WTO towards human right to health in term
of public health.
Secondly, WTO Dispute Settlement Bodies, in recent years, seem to interfere
human rights issues with WTO obligations by referring to several other
international agreements out of WTO agreements system whose purpose is to
ensure, protect and fulfill human rights in particular fields and giving an positive
and optimistic toward issue related to human rights. For instance, the right to health
was encroached upon by the Thai Cigarettes case, the Asbestos case and the right to
life by the Shrimp and turtle case.
In addition to such advantages, some pit-falls still exist in the WTO Dispute
Settlement proceeding toward relevant-human rights terms and standards. First,
dissimilar

with

appreciative

GATT‘s

interpretation,

TRIPs

agreement‘s

interpretation of the Dispute Settlement Bodies to these ones was rare and strict,

even disposing to take human rights in to consideration when they deal with the
case. Second, some human-rights-related-provisions under TRIPs agreement and
Article XX GATT 1994 have not been challenged by members; thereof, there is no
official jurisprudence of interpreting these terms. These shortcomings will have
negative effects on GATT‘s Article XX and TRIPs interpretation in the context of
human rights later.
So far, many researches, projects have dealt with the relation between human rights
and the WTO. Nevertheless, the insufficiency still exists in the specific field of
―interpretation‖ as none of these researches stating and analyzing this in a clear
specific and in-depth way. Besides, there have been no Articles and studies
specifically working in human rights in WTO in general and Article XX GATT
1994 and TRIPs interpretation in the context of human rights in particular
implemented by Vietnamese scholars. For all above reasons, I am inspired to
choose the title: “Interpretation of WTO Agreements in the context of Human


3

rights: A case study of Article xx GATT 1994 and TRIPs Agreement” to my
bachelor thesis.
2. Purposes of the Thesis
Studying the topic named ―Interpretation of the GATT‘s Article XX and
TRIPs in the context of Human rights‖, the author seeks to achieve these following
purposes:
First of all, the thesis will provide a general understanding some fundamental
academic issues in regard to the relationship between Human rights and the WTO
by giving legal approaches, definitions, characteristics of human rights
interpretation together with two fundamental human rights in international law, an
overview of human rights in WTO context trough WTO historical development,
current legislation and negotiation.

Secondly, WTO Dispute settlement Bodies‘ competence toward human rights
will be figured out. Particularly, the thesis will study human rights interpretation in
some particular provisions of WTO, including Article XX GATT 1994, Article 7, 8,
28 and Article 31 of TRIPs agreement.
Subsequently, analyzing two WTO cases regarding to Article XX GATT
1994, and TRIPs agreement in tern to examine how human rights have been
interpreted in WTO dispute settlement proceedings is also a core purpose of this
thesis.
Finally, from all these presentations, the thesis will give a prediction
towards human rights interpretation in the future WTO dispute settlement
proceedings.
3. Thematic delimitations
With the restriction of time and ability of the author, this thesis is not
intended to provide a comprehensively in-depth view on all WTO-agreements
which are related to human rights– a wide field containing many researches of wellknown socialists and jurisprudents. WTO legislation includes diverse agreements
regarding to human rights, namely GATT 1994 agreement, particularly, Article XX-


4

general exceptions and Article XXI-security exception; TRIPs agreement; GATS
agreement, particularly Article XIV(a); SPS agreement; and other agreements.
This thesis concentrates only on the TRIPs agreement and Article XX GATT
1994. Moreover, to investigate thoroughly about the interpretation of human rights
under TRIPs agreement and Article XX GATT 1994, the author also analysis two
cases in regard to these two legal instruments in turn.
In relation to human rights in WTO agreements, there has been a great
diversity of studies and scientific studying Articles with numerous approaches. For
instance, the relation between international trade and human rights from the
economic perspective, WTO and human rights linkages, some litigating problems

regarding to human rights in WTO like human rights-based trade measures, types of
human rights arguments against the WTO and so on. In the study extent of this
thesis, the issue of interpretation of the Article XX GATT 199and TRIPs would be
focused on.
4. Research methodology
Pursuant to the purposes as mentioned above, this thesis use four methods:
First, description method is used mainly in chapter 1, chapter 2 and chapter 3
as well to present definitions, perspectives, approaches, provisions, interpretation of
law;
Second, comparison is utilized to clarify the involvement of WTO in
comparison with GATT towards Human rights approach and the similarities and
differences of Developing and developed countries‘ proposals in Doha negotiation
round, the divergences between various scholars‘ viewpoints.
Third, analysis is used in all chapters, especially chapter 2 and chapter 3, to
give analytical view over some case studies, evaluate the Dispute Settlement
Bodies‘ interpretation, and withdraw characteristics, advantages, disadvantages,
shortcomings, conclusions.
Forth, system is made use of in all chapters to select and arrange collected
information so that they can be used rationally related to each other.


5

All methods shall be used flexibly and in combination with one another so as
to attain more effects for researching.
5. Literature review
In Vietnam, there have not been any comprehensive and thorough researches
in relation to the WTO agreements interpretation in the context of human rights,
apart from some Articles which refer to the WTO states obligation to protect public
health beyond Doha declaration, for example, Le Thi Nam Giang (2011), Vietnam

with the approval of TRIPs agreement‟s amended protocal, Journal of Legislative
Studies-The National Assembly Office, No. 5/2011, p. 28-34
The relationship between human rights and international trade has been a
point of discussion for many years, initially by human rights experts from the mid
1990s. From the mid 1990s onwards, more and more scholars began to formulate
opinion over human rights concerns in international trade. Here are some
remarkable books and Articles:
-

Thomas Cottier, Joost Pauwelyn and Elisabeth Burgi (2005), Human rights
and International trade, Oxford University Press, Oxford: This book
incorporates the relationship between human rights norms, policies and the
World Trade Organization. Besides the concern of more explicit to link trade
and human rights, the conflict between human rights obligation and
international trade is also subscribed. It can lead readers further to an overall
of these issues, which is extraordinarily complex.

-

James Harrison (2007), The human rights impact on the World Trade
Organization, James Harrison, Oxford and Portland, James Harrison: The
Article is undoubtedly the most exhaustive and in-depth analysis of human
rights in WTO, especially the trade law approach to the right to health and
how to raise human rights arguments in WTO Dispute settlement
Proceedings.

-

Anthony E. Cassimatis (2007), Human rights related Trade measures under
International law, International studies in Human rights, Martinus Nijihoff

6

Publishers is another worth-reading piece. It provides an insight of the
human rights related trade measures with numerous case- study analyses.
-

Among an abundant collection of research works on measures to reform
WTO by Ernst-Ulrich Petersmann, James Harrison (2005) in the book named
―Reforming the World Trading System- Legitimacy, Efficiency, and
Democratic Governance‖, Oxford university press, the Article ―The
„Human Rights Approach‟ advocated by the UN High Commissioner for
the Human rights and by International Labor Organization: Is it relevant
for WTO law and policy?” is the most relevant to my thesis. It focuses on
studying the question of WTO Dispute Settlement Bodies- the ability to be
required to address arguments that human rights may be relevant legal
context for interpreting WTO rules.

However, researches, study pieces that deeply, clearly and specifically pointed out
the interpretation of the WTO agreements, specifically, Article XX GATT 1994 and
TRIPs in context of Human rights are still rare. Besides, almost researches have a
tendency to work generally on case-study rather than take in-depth analysis over
particular provisions in WTO agreements relating to human rights.
6. Structure of the thesis
In addition to the Introduction and Conclusion, in accordance with the purposes and
delimitation presented above, this thesis is divided into three main parts as three
following chapters:
Chapter 1: The relationship between human rights and the WTO
Chapter 2: Interpretation of the GATT‘s Article XX and TRIPs in the context of

human rights
Chapter 3: WTO jurisprudence on cases ―relating to‖ human rights


7

CHAPTER ONE: THE RELATIONSHIP BETWEEN HUMAN
RIGHTS AND THE WTO
With effort to provide an overall look of the relationship between Human rights and
the WTO, this chapter will study human rights terminology, the two significant
human rights- the right to health and the right to life, examine human rights in the
WTO context and Doha negotiation round to find out WTO positive moments to
human rights, particularly to the right to health and the right to life.
1.1 Human rights terminology
Nowadays, human rights have been increasingly recognized in the legislation
of multi-continental organizations such as the United Nations, the Food and
Agriculture Organization, the World Health Organization and the United Nations
Educational, Scientific and Cultural Organization (UNESCO), regional economic
agreements like the EC Treaty, the 2000 Cotonou Agreement, and the 2001 Quebec
Minis Declaration on a Free Trade Area of the Americas.1 However, the UN would
still be the core of human rights‘ interpretation whereas other international
organizations are just reference. Namely, human rights are rights inherent to all
human beings, whatever our nationality, place of residence, sex, national or ethnic
origin, color, religion, language, or any other status.2
Human rights entail not only rights for human being but also obligations to
States and other individuals. Firstly, States assume obligations and duties under
international law to respect, to protect and to fulfill human rights.3 The obligation to
respect means that States and its organs must abstain from doing anything that
interferes with or curtails the enjoyment of human rights. The obligation to protect
1

Ernst-Ulrich Petersmann (2005), The ‗Human Rights Approach‘ advocated by the UN High Commissioner
for the Human rights and by International Labor Organization: Is it relevant for WTO law and policy?,
Reforming the World trade system ,Oxford University Press, p.370
2
Article 2 of The Universal declaration of Human rights; What are human rights, Available at
last visited on 16th june 2013
3
What are human rights, Available at last
visited on 16th june 2013; Christine Breining-Kaufmann (2005), The Legal Maxtrix of Human Rights and
Trade Law: State Obligations versus Private Rights and Obligations, Human Rights and International Trade,
Oxford University Press, p.10


8

requires States to protect individuals and groups against human rights abuses by
third parties. The obligation to fulfill means that States must take positive action to
facilitate the enjoyment of basic human rights. This obligation also requires states to
assist those who otherwise cannot enjoy their rights.4 Secondly, at the individual
level, while we are of our human rights, we should also respect the human rights of
others. We must not do anything harmful to other ones‘ human rights because when
we do so, the State‘s obligation to protect human rights will immediately incur.
Thereby, that state will take appropriate measures to against the violating action.
Generally, universal instruments relating to human rights could be separated
into three groups: International Bill of Rights, the core human rights treaties and
other universal instruments relating to human rights.5
First, the International Bill of Human Rights includes Universal Declaration
of Human Rights, International Covenant on Economic, Social and Cultural Rights,
International Covenant on Civil and Political Rights, Optional Protocol to the

International Covenant on Civil and Political Rights, Second Optional Protocol to
the International Covenant on Civil and Political Rights, aiming at the abolition of
the death penalty.6
Second, there are nine core international human rights treaties. Some of the
treaties are supplemented by optional protocols dealing with specific concerns.
They consist of International Convention on the Elimination of All Forms of Racial
Discrimination, International Covenant on Civil and Political Rights, International
Covenant on Economic, Social and Cultural Rights, Convention on the Elimination
of All Forms of Discrimination against Women, Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, Convention on the
Rights of the Child, International Convention on the Protection of the Rights of All

4

A Eide (1989), Report updating the Study on the right to food, UN Doc E/CN4./Sub.2/1998/9
Universal
Human
rights
instruments,
available
at
last visited on
14th July 2013
6
Universal Declaration of Human Rights (Annex), adopted by General Assembly resolution 217 A (III) of
10 December 1948.
5


9

Migrant Workers and Members of Their Families, International Convention for the
Protection of All Persons from Enforced Disappearance, Convention on the Rights
of Persons with Disabilities, Optional Protocol to the Covenant on Economic, Social
and Cultural Rights, Optional Protocol to the International Covenant on Civil and
Political Rights, Second Optional Protocol to the International Covenant on Civil
and Political Rights, aiming at the abolition of the death penalty, Optional Protocol
to the Convention on the Elimination of Discrimination against Women, Optional
protocol to the Convention on the Rights of the Child on the involvement of
children in armed conflict, Optional protocol to the Convention on the Rights of the
Child on the sale of children, child prostitution and child pornography, Optional
Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, Optional Protocol to the Convention on the Rights of
Persons with Disabilities. 7
Lastly, there is a non-exhaustive selection of other universal instruments
relating to human rights with various kinds of human rights and types of
beneficiaries. The legal status of these instruments varies: declarations, principles,
guidelines, standard rules and recommendations have no binding legal effect, but
such instruments have an undeniable moral force and provide practical guidance to
States in their conduct; covenants, statutes, protocols and conventions are legallybinding for those States that ratify or accede to them.8
A great variety of international human rights instruments is synonymous
with diversity of ―human rights‖ terminology interpretation because each instrument
has an instinctive interpretation each type of human rights corresponding to every
kinds of governed subject, and each type of human rights.

7

8

The Core International Human Rights Instruments and their monitoring bodies, available at

last visited on 22nd June
2013
Universal
Human
Rights
Instruments,
available
at
/>last
visited on 22nd June 2013


10

1.2 The right to health and the right to life as two important human rights
The right to health is recognized in a number of human rights agreements.
Health, well-being and medical care are mentioned as purposes of standard of living
adequate according to Article 25.1 of the Universal Declaration of Human rights.9
Additionally, Article 12.1 of International Covenant on Economic, Social and
Cultural Rights provides that ―the States Parties to the present Covenant recognize
the right of everyone to the enjoyment of the highest attainable standard of physical
and mental health.‖ Particularly, the WHO constitution with its increasing number
of member States10 has proven particularly universal significance of such a right.
The preamble of WHO constitution states that ―The enjoyment of the highest
attainable standard of health is one of the fundamental rights of every human being
without discrimination of race, religion, political belief, economic and social
condition.‖
In principle, the right to health does not mean the right to be healthy. 11 The
right to health means that governments must generate conditions in which everyone
can be as healthy as possible. Such conditions range from ensuring not only

availability of health services, but also the underlying determinants of health, such
as access to safe and potable water and adequate sanitation, an adequate supply of
safe food, nutrition and housing, healthy occupational and environmental
conditions, and access to health-related education and information, including on
sexual and reproductive health. 12
Meanwhile, the right to life is also provided in many international covenants.
For example, the right to life is acknowledged in Article 3 of the Universal
9

Article 25.1 of the Universal Declaration of Human rights:
Everyone has the right to a standard of living adequate for the health and well-being of himself and of his
family, including food, clothing, housing and medical care and necessary social services, and the right to
security in the event of unemployment, sickness, disability, widowhood, old age or other lack of
livelihood in circumstances beyond his control.
10
As of 22nd June 2013, there are 194 Member States to WHO, available at />last visited on 22nd June 2013
11
The right to health, Available at last visited on 10th
July 2013
12
The right to health, available at last visited on 22nd
June 2013


11

Declaration of Human rights that ―everyone has the right to life, liberty and security
of person‖. This means that everyone has the right to live, and to live in freedom
and safety.

13

Besides, Article 6.1 of the International Covenant on Civil and

Political Rights regulates that ―Every human being has the inherent right to life.
This right shall be protected by law. No one shall be arbitrarily deprived of his
life‖. Furthermore, Article 6 of the Convention on the Rights of the Child provides
―(1) States parties recognize that every child has the inherent right to health. (2)
States Parties shall ensure to the maximum extent possible the survival and
development of the child.‖ Finally, Article 10 of the Convention on the Rights of
Persons with Disabilities contains the right to life ―States Parties reaffirm that
every human being has the inherent to life and shall take all necessary measures to
ensure its effective enjoyment by persons with disabilities on an equal basis with
others.‖
From the approach of such international human rights regulations, the right
to life is factually not just limited to right of survival, but also extent to right of life
effective enjoyment and development. As a result, in regard to the right to life,
states own the obligation to take protective measures against the loss of life and
preventive measures in the face of known risk to life.14
In general, enjoyment of the human right to health is vital to all aspects of a
person‘s life and well-being, and it is crucial to the realization of many other
fundamental human rights and freedoms.15 Therefore, if the right to health is well
guaranteed and protected, both the right to life and other human rights are positively
influenced.

13

The right to life, available at last visited
on 22nd June 2013
14

Right to life, available at last visited on 22nd June 2013
15
The human right to health, available at last
visited on 22nd June 2013


12

1.3 Does WTO agreements cover “Human rights”?
1.3.1 “Human rights” before Uruguay round
Havana conference was held by United Nations in 1947. This conference
adopted the Havana Charter was meant to establish a multilateral trade organization,
named International Trade Organization. This charter pursued for not only
economic aims but also political and social objectives such as aim to create
conditions of stability, well-being which are necessary for peaceful and friendly
relations among nations and purpose of attainment of the higher standards of living,
full employment.16 However, Havana Charter ultimately never came into force.
Several negotiation rounds later including Geneva, Annacy, Torway, Dillon,
Kenedy, Tokyo round mainly focused on market access with efforts to
progressively reduce tariffs. The preamble of GATT 1947, in addition to primarily
referring to trade and economic endeavor, also pays attention to human issues in
term of raising standards of living, ensuring full employment.17 Furthermore, GATT
1947 provides various safeguard clauses giving priority to non-economic objectives
over trade welfares, for instance so as to prevent ―serious injury to domestic
producers‖18, to protect ―public morals‖ and ―human, animal or plant life and

16

Article 1 of Havana Charter:
Recognizing the determination of the United Nations to create conditions of stability and well-being which

are necessary for peaceful and friendly relations among nations,
The Parties to this Charter undertake in the fields of trade and employment to co-operate with one another
and with the United Nations
For the Purpose of
Realizing the aims net forth in the Charter of the United Nations, particularly the attainment of the higher
standards of living, full employment and conditions of economic and social progress and development,
envisaged in Article 55 of that Charter.
To this end they pledge themselves, individually and collectively, to promote national and international
action designed to attain the following objectives
17
GATT 1947 preamble:
Recognizing that their relations in the field of trade and economic endeavour should be conducted with a
view to raising standards of living, ensuring full employment and a large and steadily growing volume of real
income and effective demand, developing the full use of the resources of the world and expanding the
production and exchange of goods
18
Article XIX of GATT 1947


13

health‖, ―conservation of exhaustible natural resources‖19 and ―national
security‖.20
Until Uruguay round, the final way under GATT system, it broadened the
subjects of negotiation to several fields which are in close relation with human life,
namely sanitary and phytosanitary standards, technical regulations, environmental
rules, intellectual property rights. Such issues could have influences on human life
because they give requirement on standards of goods which are consumed by
human, make positive contributions to environment which is the human living
surroundings, protect individual rights of intellectual property rights holders.

WTO law goes far beyond trade liberlization and gives much more regards
to respects which enable to affect to human life. First, the preamble of Marrakesh
agreement establishing the WTO mentions ―sustainable development and seeking
both to protect and preserve the environment‖ as an objective of WTO besides
raising standards of living, ensuring full employment which have been already
referred in GATT 1947. Second, TRIPS stipulates intellectual property right as
substantive and procedural individual rights.
Doha, the latest negotiation round of WTO, particularly first-time raised
TRIPs-Public health as a critical subject in the work program. This could be
considered as a tremendous emphasis of WTO over Public interest which is the
traditional interpretation to refer to human rights.21 Especially, the Doha declaration
has reinforced the right to protect public health in the TRIPs context. 22 The
following part of this thesis will give much more details on the Doha negotiation
round. All above analyses could lead to a conclusion that WTO is gradually getting
closer to ―human rights‖ by its legal involvements and WTO members‘ effort to
improve current legal system.
19

Article XX of GATT 1947
Article XXI of GATT 1947
21
Earnst- Ulrich Petersmann (2002), Constitutionalism and WTO law: from a state-centered towards a
human rights approach in international economic law, The WTO and International Trade Law, MPG Books
Ltd, Bodmin,Cornal, p.676
22
Frederick M Abbott (2003), the ―Rule of Reason‖ and the right to health: Integrating Human Rights and
Competition Principles in the context of TRIPs, Human Rights and International Trade, p.300
20

14

1.3.2 “Human rights” in the WTO’s legislation
Factually, WTO law does not explicitly refer to human rights 23 for the reason
that nowhere in WTO agreements provides specifically ―human rights‖ as a
particular term. They do, however, contain provisions that would be ―an effective
measure‖ to permit states to protect and promote human rights through trade by
taking certain measures against states that violates human rights.24
The pivotal provisions for this respect are Article 8 of TRIPS agreement―measures necessary to protect public health‖ and ―to prevent the abuse of
intellectual rights‖25, Article 6,

Article 7 and 31 (b), (f) and (h) of TRIPS

agreement26, Article XX.(a), (b), (e), (g)-―general exceptions‖27 and XXI of GATT
1994-―exception of security‖28, Article XIV(a) of GATS-―public morals‖29 and so
on. My dissertation mainly focuses on the exception of Article XX GATT 1994and
TRIPs agreement.
The reason for giving such provisions as prime examples of WTO‘s
reference to human rights is that these Articles are literately comprised of words and
phrases somehow related to human rights. More particularly, ―human health‖ in
Article XX.b refers to the right to health. In general, ―public morals‖ (Article
XX.a), ―prison labour‖ (Article XX.e), ―human life‖ in Article XX.b; the
―conservation of exhaustible natural resources‖ (Article XX.g) regard to the right
to life.
In term of such exceptions of the Article XX, the UN Secretary-General to
the fifty-fifth session of the General Assembly also stated that:

23

Ernst-Ulrich Petersmann (2005), supra note 1, p.375

R Howse (2002) , Protecting Human rights in a Global economy: Challenges for the World Trade
Organization , International Center for Human rights and Democratic Development, Policy Paper, available
at />25
Ernst-Ulrich Petersmann (2005), supra note 1 , p.655
26
Anthony E. Cassimatis (2007), Human Rights Related Trade Measures Under International Law: The
Legality of Trade Measures Imposed in Response to Violations of Human Rights Obligations Under General
International Law, Martinus Nijhoff Publishers,supra note 26, p.463
27
Ernst-Ulrich Petersmann (2005), supra note 1, p.376
28
Anthony E. Cassimatis (2007), supra note 26, p.367
29
Ernst-Ulrich Petersmann (2005), supra note 1, p.376; Christine Breining-Kaufmann (2005), Supra note 3,
p.107
24


15

―The exceptions referred to [Article XX] call to mind the protection of
the right to life, the right to a clean environment, the right to food and
to health, the right to self determination over the use of natural
resources, the right to development and freedom from slavery to
mention a few.‖ 30
In relation to TRIPs, some provisions of this agreement including Article 7,
Article 8, and Article 27.2 and Article 31 appear to be significant in relation to the
justification of measures taken to protect the human right to health.31 Similar to
GATT 1994, there are some terminologies in these provisions relevant to human
rights such as social welfares, order public, morality, human, human health or the

environment. Those term call to mind the promotion of the right to food and to
health, the right to development, and the right to enjoy the benefits of scientific
progress.32
1.4 Doha development agenda towards Public health
1.4.1 Historical development of the Doha round
The Doha Round, whose entire package is called the Doha Development
Agenda (DDA), is the latest round of trade negotiations among the WTO
membership and was launched at the Fourth Ministerial Conference in Doha, Qatar,
in November 2001. The initial target that WTO member governments set out is to
finish negotiation on 1 January 2005; however, such a deadline was missed. After
that, members unofficially aimed to finish the negotiations by the end of 2006, it is
paradoxical that this attempt was again unsuccessful. Further progress in narrowing
members‘ differences was made at the Hong Kong Ministerial Conference in
December 2005; but some gaps remained unbridgeable and Director-General Pascal

30

United Nations (2000), Globalization and its impact on the full enjoyment of all human rights-Preliminary
report of the Secretary-General, A 55-342, p.4
31
Anthony E. Cassimatis (2007), supra 26, p.464; Hans Morten Haugen (2009), Human Rights and TRIPS
Exclusion and Exception Provisions, The Journal of World Intellectual Property, Martinus Nijihoff
Publishers, p.352
32
Report of the Report of the High Commissioner (2001), The impact of the Agreement on Trade-Related
Aspects of Intellectual Property Rights on human rights, Economic, Social And Cultural Rights, Economic,
Social And Cultural Rights, E/CN.4/Sub.2/2001/13 27 June 2001, p.7


16

Lamy suspended the negotiations in July 2006. Endeavors later concentrated on
trying to achieve a breakthrough in early 2007.33
According to the declaration of the Fourth Ministerial Conference, Doha
Round assumed overall responsibility for negotiation over diverse issues, including:
(i) Agriculture, (ii) Non-agricultural market access (NAMA), (iii) Services, (iv)
Trade facilitation, (v) Rules, (vi) The environment, (vii) Geographical indications:
multilateral register for wines and spirits, (viii) Other intellectual property issues,
and (ix) Dispute settlement.34 Its aim is to achieve major reform of the international
trading system through the introduction of lower trade barriers, revised trade rules
and to improve the trading prospects of developing countries.35
In this round, TRIPs and Public health is one of its subjects. An overview on
the relevant terms will assist for further understandings of negotiation process and
declaration altogether.
In the most generally understanding, compulsory licensing is that a
government allows someone who is not the exclusive patent-holder to produce the
patented product or process in a certain period of time without the consent of the
patent owner36. Nonetheless, the term ―compulsory licensing‖ does not appear in the
TRIPs Agreement but in Doha agenda. Instead, the phrase refers to ―other use
without authorization of the right holder‖ appears in the title of Article 31. It should
be noted that compulsory licensing is only part of this since ―other use‖ includes
use by governments for their own purposes37. Article 31 consists of use by the
government and use by third parties authorized by the government. As a result,
compulsory licensing is the circumstance that patented product or process is used by

33

Understanding
The
WTO: The

Doha
Agenda,
available
at
last visited on 15th June 2013
34
Doha
Round:
what
are
they
negotiating?,
available
at
last visited on 15th June 2013
35
The Doha round, available at last visited on 15th
June 101
36
Le Thi Nam Giang (2011), Vietnam with the approval of TRIPs agreement‘s amended protocal, Journal of
Legislative Studies-The National Assembly Office, No.5/2001, p.4
37
Trips
and
Pharmaceutical
Patents-Obligations
And
Exceptions,
available
at

last visited 10th July 2013


17

third parties authorized by the government. This could happen in form of a third
party‘ request for use without authorization of the right holder accepted by the
government or the government‘s intentional grant to a third party for use without
authorization of the right holder.
In discussion of public health, compulsory licensing is usually associated
with pharmaceuticals.38 In case of the national emergency or other circumstances of
extreme urgency under Article 31 of TRIPs, ―compulsory licensing‖ could be taken.
Therefore, in reality as well as in legitimate theory, compulsory licensing is
recognized as the most significant tool to limit negative influences of patent
protection over social interest.39
―Public health‖ is not present in Article 31, but Article 8 of TRIPs. This
provision allows states to adopt ―measures necessary to protect public health and
nutrition‖. No interpretation in WTO dispute settlement body proceedings has been
implemented to figure out the meaning of this terminology. However, the
Declaration on the TRIPS agreement and public health adopted on 14 November
2001stated that:
―Each member has the right to determine what constitutes a national
emergency or other circumstances of extreme urgency, it being
understood that public health crises, including those relating to
HIV/AIDS, tuberculosis, malaria and other epidemics, can represent a
national emergency or other circumstances of extreme urgency.‖40
So, it could be concluded that public health is a national situation relating to
particular dangerous diseases and can stand for a national emergency or other
circumstances of extreme urgency. Public health seeks for societal conditions in
which people can be healthy by promoting health and preventing diseases.41 Public

health thereby has close relation with compulsory licensing for the reason that
public health is the condition to apply compulsory licensing.
38

Id
Le Thi Nam Giang (2011), Supra note 36, p.4
40
Declaration on the TRIPS agreement and public health, adopted on 14 November 2001,
WT/MIN(01)/DEC/2, paragraph 5.c
41
Johnathan M.Mann, Sofia Gruskin, Micheal a. Grodin, Geogre J.Annas (1999), Health and Human Rights:
A Reader, Routledge, New York, p.34
39


18

In principle, the state‘s human rights responsibilities to respect, protect and
fulfill rights relating to health also include obligations concerning both medicine
and public health. Moreover, the human rights perspective aims to guarantee that
every individual can achieve the highest attainable standard of physical, mental and
social well being. Human rights are progressively being understood to offer an
approach for considering the broader societal dimensions and contexts of the
wellbeing of individuals and populations, and therefore to be of utility to all those
concerned with health.42
The primary target of public health is the protection of collective interests for
the reason that public health seeks to ensure every person's right to achieve the
highest attainable standard of health. Public health seeks to address health illness,
therefore guarantee and protect the human right to health in particular and human
rights in general.

1.4.2 Negotiating process towards Public health
Even though TRIPs does not explicitly mention ―Human right‖ in general
and the ―right to health‖ in particular, the right of WTO members to adopt measures
necessary to protect public health in form of compulsory licenses is confirmed. 43
However, it is not clear when such provision could be made use of to get access to
more affordable essential medicines. The original influences eventually resulting in
Doha negotiation round is derived from ―the inability of large segments of the
population to obtain medicines and treatment at prices they can afford threatens the
vital interest of States in protecting and promoting public welfare, preserving law
and order, and maintaining social cohesion‖44.
Doha round was similar to the battle field between two group of countries,
developing countries and developed countries, over ―public health‖. The group of
42

Sofia Gruskin and Daniel Tarantola (2001), Health and Human Rights, The Oxford Textbook of Public
Health, 4th edition ,Oxford University Press, p.16
43
Article 31 of TRIPs refers to ―other use without the authorization of the member‖ which also includes
compulsory licensing.
44
Proposal by the African Group (Bangladesh, Barbados, Bolivia, Brazil, Cuba, Dominican Republic,
Ecuador, Haiti, Honduras, India, Indonesia, Jamaica, Pakistan, Paraguay, Philippines, Peru, Sri Lanka,
Thailand and Venezuela) (4 October 2001), IP/C/W/312, WT/GC/W/450


19

developing countries put forward a draft declaration, stating that: ―Nothing in the
TRIPS Agreement shall prevent Members from taking measures to protect public
health‖.45 Considerably, this proposal specifically evoked international human

rights law as relevant context for the Declaration:
―discharging the obligation to protect and promote the fundamental
human rights to life and the enjoyment of the highest attainable
standard of physical and mental health, including the prevention,
treatment and control of epidemic, endemic, occupational and other
diseases and the creation of conditions which would assure to all
medical service and medical attention in the event of sickness, as
affirmed in the International Covenant on Economic, Social and
Cultural Rights.‖
Furthermore, developing countries prefer to widen the scale of public health
issue to cover heart disease, cancer and diabetes also.46 Epidemic, endemic,
occupational and other diseases are general terms of such disease that were
recommended by developing countries.47
In response to such developing countries‘ draft, a coalition of developed
countries led by US also suggested with a number of proposals. They recognized
the importance of the access to medicines for treatment, especially to the poorest
populations of the globe on one hand, but they were on the other hand opposed to
the proposal of referring to international human rights law.48
In regard to kinds of diseases to be subject of public health, developed
countries disagreed to widen its scope into such broaden extent as developing
countries‘ recommendation. Developed countries just wanted to restrict on
HIV/AIDS and other pandemics49.

45

Id
Ellen F. M. ‘t Hoen (2009), The Global Politics of Pharmaceutical Monopoly power, Drug patents, access,
innovation and the application of the WTO Doha Declaration on TRIPS and Public Health, AMB
Publishers, p.15
47

Proposal by the African Group (Bangladesh, Barbados, Bolivia, Brazil, Cuba, Dominican Republic,
Ecuador, Haiti, Honduras, India, Indonesia, Jamaica, Pakistan, Paraguay, Philippines, Peru, Sri Lanka,
Thailand and Venezuela) (4 October 2001), IP/C/W/312, WT/GC/W/450;
48
Proposal from a group of developed countries, Contribution from Australia, Canada, Japan, Switzerland
and the United States (4 October 2001), IP/C/W/313 (01-4779)
49
Proposal from a group of developed countries, Contribution from Australia, Canada, Japan, Switzerland
and the United States (4 October 2001), IP/C/W/313 (01-4779)
46