Human rights terminology
Human rights are increasingly recognized in the legislation of major multi-continental organizations, including the United Nations, the Food and Agriculture Organization, the World Health Organization, and UNESCO, as well as in regional agreements like the EC Treaty and the Cotonou Agreement While the UN remains the primary authority on human rights interpretation, other international organizations serve as references These rights are inherent to all individuals, regardless of nationality, residence, gender, ethnicity, color, religion, language, or any other status.
Human rights encompass both the rights of individuals and the responsibilities of states and other entities States are bound by international law to respect, protect, and fulfill these rights The obligation to respect requires that states and their institutions refrain from actions that would hinder or diminish the enjoyment of human rights Additionally, the obligation to protect mandates that states take active measures to safeguard individuals from human rights violations.
Ernst-Ulrich Petersmann (2005) explores the relevance of the 'Human Rights Approach' promoted by the UN High Commissioner for Human Rights and the International Labor Organization in the context of WTO law and policy This analysis highlights the intersection between human rights and international trade, emphasizing the need for a cohesive framework that integrates human rights considerations into WTO regulations The article argues for the significance of aligning trade policies with human rights standards to promote social justice and equitable development globally.
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 http://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx, last visited on 16 th june 2013
Human rights are fundamental entitlements that require states to protect individuals and groups from abuses by third parties, as highlighted by the OHCHR States have an obligation to fulfill these rights by taking positive actions to ensure that all individuals can enjoy their basic human rights, including assisting those who are unable to do so on their own Additionally, while individuals are entitled to their own rights, it is essential to respect the rights of others; failing to do so triggers the state's responsibility to intervene and take appropriate measures against any violations.
Universal instruments concerning human rights can be categorized into three main groups: the International Bill of Rights, core human rights treaties, and additional universal instruments related to human rights.
The International Bill of Human Rights encompasses several key documents, including the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights Additionally, it includes the Optional Protocol to the International Covenant on Civil and Political Rights and the Second Optional Protocol, which focuses on the abolition of the death penalty.
There are nine core international human rights treaties, each addressing fundamental rights and freedoms These treaties include the International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights Additionally, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Convention on the Rights of the Child are also part of this framework Some treaties are further enhanced by optional protocols that focus on specific issues.
4 A Eide (1989), Report updating the Study on the right to food, UN Doc E/CN4./Sub.2/1998/9
5 Universal Human rights instruments, available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/UniversalHumanRightsInstruments.aspx, last visited on
6 Universal Declaration of Human Rights (Annex), adopted by General Assembly resolution 217 A (III) of
The protection of migrant workers and their families is reinforced by various international conventions, including the International Convention for the Protection of All Persons from Enforced Disappearance and the Convention on the Rights of Persons with Disabilities Additionally, several Optional Protocols enhance rights related to economic, social, and cultural matters, as well as civil and political rights, with specific focus on the abolition of the death penalty and the elimination of discrimination against women Furthermore, protocols addressing the involvement of children in armed conflict, the sale of children, child prostitution, and child pornography emphasize the need for safeguarding vulnerable populations The Optional Protocol to the Convention against Torture also underscores the commitment to preventing inhumane treatment, ensuring a comprehensive framework for human rights protection.
In addition to the core human rights instruments, there exists a variety of universal instruments that address different types of human rights and beneficiaries While some, such as declarations and guidelines, lack binding legal effect, they carry significant moral authority and offer practical guidance for states Conversely, legally-binding instruments, including covenants and conventions, impose obligations on states that choose to ratify or accede to them.
The diverse array of international human rights instruments reflects the varying interpretations of "human rights" terminology Each instrument offers a unique perspective on different types of human rights, tailored to specific subjects of governance and their respective rights.
7 The Core International Human Rights Instruments and their monitoring bodies, available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx, last visited on 22 nd June
8 Universal Human Rights Instruments, available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/UniversalHumanRightsInstruments.aspx, last visited on 22 nd June 2013
The right to health and the right to life as two important human rights
The right to health is enshrined in various human rights agreements, highlighting its significance Article 25.1 of the Universal Declaration of Human Rights emphasizes that health, well-being, and medical care are essential components of an adequate standard of living.
Article 12.1 of the International Covenant on Economic, Social and Cultural Rights affirms the right of every individual to the highest attainable standard of physical and mental health This principle is echoed in the WHO constitution, which emphasizes that health is a fundamental right for all, regardless of race, religion, political belief, or socio-economic status The increasing membership of the WHO highlights the global recognition of this essential right to health.
The right to health does not equate to the right to be healthy; instead, it requires governments to create conditions that enable individuals to achieve optimal health This encompasses not only the availability of healthcare services but also essential determinants such as access to safe drinking water, proper sanitation, nutritious food, stable housing, healthy work environments, and educational resources related to health, including sexual and reproductive health.
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 is entitled to a standard of living that ensures their health and well-being, which includes access to essential needs such as food, clothing, housing, and medical care Additionally, individuals have the right to necessary social services and security during times of unemployment, illness, disability, widowhood, old age, or other unforeseen circumstances that may affect their livelihood.
10 As of 22 nd June 2013, there are 194 Member States to WHO, available at http://www.who.int/countries/en/, last visited on 22 nd June 2013
11 The right to health, Available at http://www.who.int/mediacentre/factsheets/fs323/en/, last visited on 10 th July 2013
12 The right to health, available at http://www.who.int/mediacentre/factsheets/fs323/en/, last visited on 22 nd June 2013
The Declaration of Human Rights asserts that every individual has the fundamental right to life, liberty, and personal security, emphasizing the importance of living freely and safely Article 6.1 of the International Covenant on Civil and Political Rights further enshrines this principle, stating that every human being possesses an inherent right to life, which must be safeguarded by law, ensuring that no one is arbitrarily deprived of their life Additionally, Article 6 of the Convention on the Rights of the Child reinforces these protections for children, highlighting the universal commitment to uphold the right to life for all.
States parties acknowledge the fundamental right of every child to health and commit to maximizing efforts for the survival and development of children, as outlined in Article 10 of the Convention on the Rights of the Child.
Persons with disabilities have the inherent right to life, which States Parties reaffirm by committing to take all necessary measures to ensure that individuals with disabilities can enjoy this right on an equal basis with others.
International human rights regulations extend the right to life beyond mere survival, encompassing the effective enjoyment and development of life Consequently, states are obligated to implement protective measures to prevent loss of life and to take proactive steps in response to known risks.
The right to health is essential for individual well-being and significantly impacts the realization of various fundamental human rights and freedoms When the right to health is effectively safeguarded, it positively influences both the right to life and other human rights.
13 The right to life, available at http://www.un.org/cyberschoolbus/humanrights/declaration/3.asp, last visited on 22 nd June 2013
14 Right to life, available at http://www.ijrcenter.org/ihr-reading-room/research-aids/thematic-research- guides/right-to-life/, last visited on 22 nd June 2013
15 The human right to health, available at http://academic.udayton.edu/health/07humanrights/health.htm, last visited on 22 nd June 2013
Does WTO agreements cover ―Human rights‖?
1.3.1 “Human rights” before Uruguay round
The 1947 Havana Conference, organized by the United Nations, led to the adoption of the Havana Charter, which aimed to create the International Trade Organization (ITO) This charter sought to achieve not only economic goals but also political and social objectives, including fostering stability and well-being essential for peaceful relations among nations and improving living standards and full employment However, the Havana Charter ultimately did not come into effect.
After multiple negotiation rounds in locations such as Geneva, Annacy, Torway, Dillon, Kenedy, and Tokyo, the primary focus remained on market access and the gradual reduction of tariffs The preamble of GATT 1947 emphasizes not only trade and economic objectives but also highlights the importance of addressing human issues, including improving living standards and ensuring full employment.
In 1947, several safeguard clauses were established that prioritize non-economic objectives over trade benefits, aiming to prevent serious harm to domestic producers and to protect public morals as well as human, animal, and plant life.
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
The United Nations Charter emphasizes the pursuit of higher living standards, full employment, and the promotion of economic and social progress and development, as outlined in Article 55.
To this end they pledge themselves, individually and collectively, to promote national and international action designed to attain the following objectives
To enhance living standards and achieve full employment, it is essential that trade and economic relations focus on increasing real income and effective demand This approach aims to fully utilize global resources while promoting the growth of production and the exchange of goods.
18 Article XIX of GATT 1947 health‖, ―conservation of exhaustible natural resources‖ 19 and ―national security‖ 20
The Uruguay Round marked a significant expansion of the GATT system, broadening the scope of negotiations to encompass critical areas affecting human life, including sanitary and phytosanitary standards, technical regulations, environmental rules, and intellectual property rights These topics are essential as they establish standards for goods consumed by humans, contribute positively to the environment, and safeguard the rights of intellectual property holders.
WTO law encompasses more than just trade liberalization; it emphasizes the importance of respecting human life and the environment The preamble of the Marrakesh Agreement highlights sustainable development and environmental protection as key objectives, alongside improving living standards and ensuring full employment, which were initially addressed in GATT 1947 Additionally, the TRIPS Agreement establishes intellectual property rights as both substantive and procedural individual rights, further reflecting the WTO's commitment to broader social and economic goals.
The recent WTO negotiations in Doha marked a significant shift by prioritizing TRIPs and public health, highlighting the organization's commitment to public interest, traditionally linked to human rights The Doha Declaration has notably strengthened the right to safeguard public health within the TRIPs framework This thesis will delve deeper into the details of the Doha negotiation round, ultimately suggesting that the WTO is progressively aligning its legal framework with human rights through the efforts of its members to enhance the current legal system.
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
1.3.2 “Human rights” in the WTO’s legislation
WTO law does not explicitly mention human rights, as the term "human rights" is not found in its agreements However, the provisions within these agreements allow states to take necessary measures to protect and promote human rights through trade, particularly against countries that violate these rights.
The pivotal provisions for this respect are Article 8 of TRIPS agreement-
This article examines the necessary measures to safeguard public health and prevent the abuse of intellectual property rights, referencing key provisions from the TRIPS Agreement, GATT 1994, and GATS Specifically, it highlights Article XX of GATT 1994, which outlines general exceptions, and emphasizes the importance of these exceptions in the context of public health and security The dissertation primarily focuses on the implications of these exceptions within the framework of international trade agreements.
The inclusion of specific provisions in the WTO framework serves as prime examples of its connection to human rights, particularly through terminology that relates directly to these rights Notably, the term "human health" in Article XX.b highlights the fundamental right to health Additionally, the reference to "public morals" in the same article underscores the importance of ethical standards in the context of human rights.
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
I don't know!
25 Ernst-Ulrich Petersmann (2005), supra note 1 , p.655
In "Human Rights Related Trade Measures Under International Law," Anthony E Cassimatis explores the legality of trade measures implemented in response to human rights violations under general international law The book, published by Martinus Nijhoff Publishers in 2007, provides an in-depth analysis of the intersection between trade regulations and human rights obligations, highlighting the complexities and legal considerations involved in enforcing human rights through trade measures.
27 Ernst-Ulrich Petersmann (2005), supra note 1, p.376
29 Ernst-Ulrich Petersmann (2005), supra note 1, p.376; Christine Breining-Kaufmann (2005), Supra note 3, p.107
The exceptions outlined in Article XX highlight essential rights, including the right to life, a clean environment, adequate food, health care, self-determination regarding natural resource use, development, and freedom from slavery.
The TRIPs Agreement includes significant provisions, particularly Articles 7, 8, 27.2, and 31, which are relevant to justifying measures that protect the human right to health Similar to GATT 1994, these articles contain key terminologies related to human rights, such as social welfare, public order, morality, human health, and environmental concerns These terms highlight the importance of promoting the rights to food and health, the right to development, and the right to benefit from scientific advancements.
Doha development agenda towards Public health
Historical development of the Doha round
The Doha Round, formally known as the Doha Development Agenda (DDA), represents the latest trade negotiations among WTO members, initiated during the Fourth Ministerial Conference in Doha, Qatar, in November 2001 Originally, the target for concluding these negotiations was set for January 1, 2005, but this deadline was not met Subsequently, members informally aimed to finalize discussions by the end of 2006, yet this goal also proved elusive Although some progress was made in addressing differences at the Hong Kong Ministerial Conference in December 2005, significant gaps remained unresolved, as noted by Director-General Pascal Lamy.
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
The 2001 report by the High Commissioner examines the effects of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) on human rights, particularly focusing on Economic, Social, and Cultural Rights It highlights the implications of TRIPS for the realization of these rights and emphasizes the need for a balance between intellectual property protection and the promotion of human welfare.
Lamy suspended the negotiations in July 2006 Endeavors later concentrated on trying to achieve a breakthrough in early 2007 33
The Fourth Ministerial Conference established the Doha Round to oversee negotiations on various critical issues, including agriculture, non-agricultural market access (NAMA), services, trade facilitation, rules, environmental concerns, geographical indications for wines and spirits, other intellectual property matters, and dispute settlement The primary objective of these negotiations is to reform the international trading system by lowering trade barriers, revising trade rules, and enhancing the trading opportunities for developing countries.
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
Compulsory licensing refers to a government permitting individuals or entities, who are not the exclusive patent holders, to produce a patented product or process without the patent owner's consent for a specified duration Although the term "compulsory licensing" is not explicitly mentioned in the TRIPs Agreement, it is addressed in the Doha Agenda, where Article 31 discusses "other use without authorization of the right holder." This encompasses both government use for its own purposes and use by third parties authorized by the government Therefore, compulsory licensing represents a scenario where a patented product or process is utilized under specific conditions set by governmental authority.
33 Understanding The WTO: The Doha Agenda, available at http://www.wto.org/english/thewto_e/whatis_e/tif_e/doha1_e.htm, last visited on 15 th June 2013
34 Doha Round: what are they negotiating?, available at http://www.wto.org/english/tratop_e/dda_e/update_e.htm, last visited on 15 th June 2013
35 The Doha round, available at http://www.wto.org/english/tratop_e/dda_e/dda_e.htm, last visited on 15 th 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
The World Trade Organization (WTO) outlines obligations and exceptions regarding pharmaceutical patents, particularly in relation to third parties authorized by the government This authorization can occur through a third party's request for use, which the government accepts without the consent of the right holder, or through a deliberate grant by the government to allow a third party to utilize the patent without authorization from the right holder.
Compulsory licensing, often linked to pharmaceuticals in public health discussions, can be invoked during national emergencies or extreme urgency as outlined in Article 31 of TRIPs This mechanism serves as a crucial tool to mitigate the adverse effects of patent protection on societal interests, both in practice and legal theory.
While "public health" is not explicitly mentioned in Article 31, it is addressed in Article 8 of the TRIPS Agreement, which permits countries to implement measures essential for safeguarding public health and nutrition Despite this provision, the WTO dispute settlement body has yet to interpret the meaning of this terminology Nonetheless, the Declaration on the TRIPS Agreement and Public Health, adopted on November 14, 2001, emphasizes the importance of public health in relation to intellectual property rights.
Every member has the authority to define what qualifies as a national emergency or urgent situation, recognizing that public health crises, such as those associated with HIV/AIDS, tuberculosis, malaria, and other epidemics, may be considered national emergencies or urgent circumstances.
Public health is a critical national issue that addresses dangerous diseases and can signify a national emergency It aims to create societal conditions that promote health and prevent disease Additionally, public health is closely linked to compulsory licensing, as the state of public health serves as a basis for implementing such licensing measures.
39 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:
The state's human rights responsibilities encompass obligations to respect, protect, and fulfill health-related rights, which include both medical care and public health initiatives This human rights perspective ensures that every individual can attain the highest possible standard of physical, mental, and social well-being Furthermore, human rights are increasingly recognized as a framework for addressing the wider societal factors affecting individual and population health, making them valuable for all stakeholders involved in health care.
Public health aims to safeguard collective interests by ensuring that every individual has the right to attain the highest possible standard of health It addresses health-related issues to uphold and protect not only the human right to health but also broader human rights.
Negotiating process towards Public health
Although the TRIPs Agreement does not explicitly reference "human rights" or the "right to health," it does affirm the ability of WTO members to implement necessary measures, such as compulsory licenses, to safeguard public health However, the conditions under which these provisions can be utilized to access more affordable essential medicines remain unclear The Doha negotiation round was significantly influenced by the urgent need to address the inability of large segments of the population to afford essential medicines, which poses a threat to the vital interests of states in promoting public welfare, maintaining law and order, and ensuring social cohesion.
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
On October 4, 2001, the African Group, which includes countries such as Bangladesh, Brazil, and India, proposed a draft declaration emphasizing that the TRIPS Agreement should not hinder members from implementing measures to safeguard public health This proposal notably referenced international human rights law as an essential framework for the Declaration, underscoring the importance of health protection in the context of global agreements.
The obligation to safeguard and promote fundamental human rights includes ensuring the right to life and the highest attainable standard of physical and mental health This encompasses the prevention, treatment, and control of various diseases, as well as creating conditions that guarantee access to medical services and attention during illness, as outlined in the International Covenant on Economic, Social and Cultural Rights.
Developing countries are expanding their public health focus to include major diseases such as heart disease, cancer, and diabetes They advocate for a broader classification of health issues, encompassing epidemic, endemic, occupational, and other diseases.
In response to proposals from developing countries, a coalition of developed nations, spearheaded by the United States, presented several counter-proposals While they acknowledged the critical need for access to medicines, particularly for the world's poorest populations, they expressed opposition to the inclusion of international human rights law in the discussions.
Developed countries are hesitant to expand the scope of public health issues, preferring to focus primarily on HIV/AIDS and other pandemics, in contrast to the broader recommendations proposed by developing nations.
46 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
On October 4, 2001, the African Group, comprising countries such as Bangladesh, Barbados, Bolivia, Brazil, Cuba, and others, submitted Proposal IP/C/W/312 and WT/GC/W/450 This proposal emphasizes the collective interests and concerns of these nations in international trade discussions.
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)
Doha round‘s declaration
The Doha Declaration on the TRIPs Agreement and Public Health emphasizes the importance of the right to health in interpreting the agreement Notably, it reflects the proposals of developing countries more closely than those of developed nations The declaration acknowledges the severe public health challenges posed by epidemics such as HIV/AIDS, tuberculosis, and malaria, which significantly impact many developing and least-developed countries This recognition supports the position of developing nations in the global health discourse.
The Doha Declaration emphasized the importance of the right to health in negotiations, particularly for developing countries seeking to incorporate human rights standards from the International Covenant on Economic, Social and Cultural Rights Notably, paragraph 4 of the Doha Declaration reflects this commitment.
We reaffirm our dedication to the TRIPS Agreement, emphasizing that it should be interpreted and implemented in a way that supports WTO Members' rights to safeguard public health and enhance access to medicines for everyone.
The final declaration acknowledges "the right to health," but it does not explicitly mention "human rights" as proposed by developing countries This highlights a significant difference between the developing nations' draft and the Doha Declaration's conclusions Specifically, developing countries emphasize the right to health as a fundamental human right that ensures access to essential medicines In contrast, the Doha Declaration frames it as a governmental responsibility to protect and guarantee public health for citizens, presenting a dual perspective: as an individual human right and as a right of each WTO member state.
52 Doha declaration on TRIPs agreement and Public health Adopted on 14 November 2001, WT/MIN(01)/DEC/2 20 November 2001, paragraph 1
The approach of developing countries aligns closely with international human rights law, emphasizing inherent rights of individuals In contrast, the Doha Declaration takes a different stance by indirectly referencing the rights of states to address human rights concerns, particularly in the realm of public health.
The Doha Declaration exemplifies how developing countries have invoked the right to health within international trade law, highlighting the significance of a human rights approach This declaration officially recognizes the essential "right to protect public health," demonstrating its impact on global trade obligations.
Is Doha declaration binding?
The Doha Declaration serves as a ministerial decision under Article IX.1 of the Marrakesh Agreement that established the WTO It clarifies the objectives of the TRIPS Agreement concerning public health, provides interpretations on key aspects of the agreement, directs the Council for TRIPS to take necessary actions, and outlines the implementation of transitional provisions for least developed countries.
The distinction between an authoritative interpretation under Article IX.2 of the Marrakesh Agreement Establishing the WTO, which pertains to the interpretation of a WTO multilateral agreement, and a standard Ministerial decision as outlined in Article IX.1, is crucial for understanding the implications of these decisions within the WTO framework.
It should be noted that Ministerial decision on interpretation of a WTO multilateral agreement need ―a recommendation by the Council overseeing the functioning of that Agreement‖ Nonetheless, Ministerial conference of Doha
54 Carlos M.Correa (2002), Implications of the Doha declaration on the TRIPs agreement and Public health, Health economies and drug EDM series No.12, WHO/EDM/PAR/2002.3, p.44
Article IX.2 of the Marrakesh Agreement grants the Ministerial Conference and the General Council exclusive authority to interpret the Agreement and Multilateral Trade Agreements, requiring a three-fourths majority for adoption The agenda on TRIPs and public health, initiated by developing countries and recommended by the TRIPs Council, lacks any indication in the Doha Declaration that it solely aims to clarify TRIPS provisions Furthermore, the Declaration did not incorporate suggestions from both developing and developed countries regarding the clarification of the TRIPS Agreement Consequently, the Doha Declaration on TRIPs and public health cannot be considered an authoritative interpretation under Article IX.2.
While WTO agreements, including Article XX of GATT 1994 and TRIPs, do not explicitly reference "human rights," the Doha agenda's focus on TRIPs and public health indicates a positive shift towards acknowledging human rights within the WTO framework The inclusion of human rights concerns related to public health at a WTO Ministerial conference reflects this movement However, amending the provisions of the Multilateral Trade Agreements, as outlined in Article X.1 of the Marrakesh Agreement, requires consensus, which is challenging given that developed countries predominantly hold patents on products and processes Furthermore, Article X.3 of the Marrakesh Agreement highlights the complexities involved in achieving such consensus.
On October 4, 2001, the African Group, which includes countries such as Bangladesh, Brazil, Cuba, and India, submitted Proposal IP/C/W/312 and WT/GC/W/450 This proposal highlights the collective interests and concerns of these nations in international trade discussions.
57 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)
According to Article X.1 of the Marrakesh Agreement, any WTO Member can propose amendments to the Agreement or the Multilateral Trade Agreements listed in Annex 1 by submitting their proposal to the Ministerial Conference Additionally, the Councils mentioned in Article IV may also submit proposals related to the agreements they oversee The Ministerial Conference has 90 days to reach a consensus on whether to submit the proposed amendment to the Members for acceptance If consensus is achieved, the proposed amendment will be promptly presented to the Members.
The Marrakesh Agreement Article X.3 states that amendments to its provisions or the Multilateral Trade Agreements in Annexes 1A and 1C, which alter Members' rights and obligations, will take effect for those Members that accept them Specifically, these amendments require acceptance by two-thirds of the Members before becoming effective for others While the timing of such acceptance is unpredictable, it does not preclude the possibility of adopting amended provisions.
The Doha Declaration on TRIPs and Public Health continues to be relevant in the interpretations made by Dispute Settlement Bodies, as it can be viewed as a "subsequent agreement" between parties concerning treaty interpretation or application, according to Article 31.3(a) of the Vienna Convention on the Law of Treaties Notably, Paragraph 4 of the Doha Declaration explicitly addresses this matter.
The TRIPS Agreement should not hinder WTO Members from implementing measures that safeguard public health We reaffirm our commitment to the Agreement while emphasizing that it can and should be interpreted to support Members' rights to protect public health and enhance access to medicines for everyone.
The Doha Declaration directs the Panel and Appellate Body to interpret TRIPs provisions with a focus on public health, establishing a specific principle for addressing human rights issues within the context of TRIPs.
Developing countries should leverage the Doha Declaration to fully exercise their right to protect public health and enhance access to medicines Additionally, they must prepare robust arguments to effectively address any disputes related to public health that may arise.
In conclusion, the right to protect public health should be prioritized in dispute settlement proceedings related to the TRIPS agreement, which is accepted by two-thirds of the Members The Ministerial Conference has the authority to amend this agreement with a three-fourths majority, allowing Members who do not accept amendments within a specified timeframe to withdraw from the WTO or remain members with the Ministerial Conference's consent.
The Doha Declaration serves as a "subsequent agreement" under Article 31, Section 3.a of the Vienna Convention on the Law of Treaties, facilitating the interpretation of the TRIPS agreement Given the challenges in achieving a Ministerial consensus on interpreting WTO multilateral trade agreements—requiring a three-fourths majority of members—the Doha Declaration acts as a crucial bridge for advancing the interpretation of WTO agreements in relation to human rights.
In overall, chapter one gives readers an overview on the relationship between human rights and the WTO
Various international organizations have established their own definitions of human rights within their legislation; however, the United Nations serves as the primary authority on human rights interpretation According to UN human rights law, these rights encompass both the entitlements of individuals and the responsibilities of states and other entities.
The right to life and the right to health, in principle, have wide range of meaning and play a significant role in human life and being
The World Trade Organization's (WTO) stance on human rights has evolved significantly over time, particularly from the negotiation rounds preceding the Uruguay Round to the Doha Agenda The Doha negotiations and its declaration stand out as a pivotal moment for the WTO, as this declaration serves as an important interpretive tool for human rights, functioning as a "subsequent agreement" under Article 31, Section 3.a of the Vienna Convention on the Law of Treaties.
INTERPRETATION OF THE GATT’S ARTICLE XX
Grounds for the interpretation of Article XX GATT 1994 and TRIPs agreement in
agreement in the context of “Human rights”
This section explores whether the World Trade Organization's Panel and Appellate Body can consider human rights when interpreting relevant provisions, such as Article XX of GATT 1994 and the TRIPS Agreement It also examines the extent of their interpretative authority regarding these human rights-related provisions.
It should be noted that human rights approach in the interpretation of Article
The interpretation of Article XX GATT 1994 and TRIPs should not be seen as infringing upon human rights; rather, it emphasizes the obligations of member states to respect, protect, and fulfill these rights This perspective arises from three key points: firstly, only WTO member countries can engage in the WTO Dispute Settlement Proceedings, which are characterized by confidentiality; secondly, the human rights provisions in Article XX GATT 1994 and TRIPs serve as defenses against breaches of WTO obligations; and finally, by ratifying WTO agreements, states cede some autonomy over their trade policies, thereby seeking a balance between trade liberalization and non-trade concerns.
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?
As for Dispute Settlement Bodies‘ competence, namely, the authority of the Panel and Appellate Body to interpret ―Human rights‖, there are two opposing schools of thought
Certain bodies lack the authority to interpret human rights provisions, a viewpoint supported by scholars like James Harrison He presents three compelling reasons that reinforce this perspective, emphasizing the limitations of these entities in addressing human rights interpretations.
Firstly, WTO is obviously not a Human rights-specialized body, but an
International Trade organization which aims at obtaining economic welfares, not for non-trade issues like respect, protection and fulfillment of human rights 63
The jurisdiction of the Panel and Appellate Body is limited to claims arising from WTO agreements, as outlined in Article 1.1 of the Dispute Settlement Understanding (DSU) Notably, "human rights" is not explicitly referenced in any WTO agreements, which means that disputes related to breaches of international law that do not stem from WTO provisions cannot be addressed through WTO dispute settlement procedures.
In 2007, the book "The Rationale for a Human Rights Methodology in the WTO Context" was published by Oxford and Portland, emphasizing the significance of integrating human rights considerations within the World Trade Organization's framework The author explores the profound impact of human rights on trade policies, advocating for a methodology that aligns international trade practices with fundamental human rights principles.
63 James Harrison (2007), The rationale for a human rights methodology in the WTO context, The Human rights impact on the World Trade Organization, Oxford and Portland, p.37
Article 1.1 of the DSU states that the rules and procedures outlined in this Understanding are applicable to disputes arising from the consultation and dispute settlement provisions of the agreements listed in Appendix 1, which are referred to as the "covered agreements."
65 Ernst-Ulrich Petersmann (2005), supra note 1, p.379
66 Harrison (2007), Raising explicit Human rights agreements in WTO dispute settlement proceedings, The Human rights impact on the World Trade Organization, Oxford and Portland, P.188
Lastly, Article 3.2 of DSU requires that recommendations and rulings of the
The Dispute Settlement Body (DSB) is restricted from altering the rights and obligations outlined in existing agreements Consequently, it faces the challenge of integrating international human rights law norms and standards without modifying WTO obligations Furthermore, the absence of treaties with identical membership complicates the application of international human rights law to all WTO members.
In contrast, many scholars advocating for the alternative viewpoint argue that a closer examination of the arguments reveals a different conclusion They contend that the case for the dispute settlement bodies' authority to interpret human rights norms is significantly more compelling than the opposing stance Consequently, representatives of this perspective have offered three key justifications to effectively counter the arguments presented by their opponents, aiming to strengthen their position in the debate.
While the World Trade Organization (WTO) primarily aims to enhance commercial welfare by minimizing barriers to international trade, it does not solely focus on trade-related issues The concept of "non-trade concerns" has gained prominence in WTO discussions and legal studies, reflecting the organization's recognition of broader societal impacts This term encompasses aspects such as food security and environmental protection, as outlined in the preamble of the Agriculture Agreement, and is also associated with rural development, employment, and poverty alleviation.
69 A guide to ―WTO speak‖, available at http://www.wto.org/english/thewto_e/glossary_e/glossary_e.htm, last visited on 19 th June 2013
The term "non-trade concerns" should be understood broadly to encompass values beyond trade issues, as both trade and non-trade concerns are significant to the World Trade Organization (WTO) The Preamble of the Marrakesh Agreement, which established the WTO, emphasizes that trade relations among member countries should aim to improve living standards and ensure full employment Additionally, it highlights the importance of sustainable development, which includes the protection and preservation of the environment, implicitly linking these goals to the fundamental right to life Consequently, human rights are recognized as a vital value that the WTO actively seeks to uphold.
WTO dispute settlement proceedings primarily focus on claims based on WTO agreements; however, they can also address trade matters that involve non-trade issues, such as human rights, due to their implied mandate While claimants cannot initiate cases solely on human rights grounds, as the term "human rights" is not explicitly mentioned in the WTO agreements, these issues can be raised as defenses in response to claims of WTO agreement violations Specific articles within the agreements reference non-trade issues related to human rights, allowing defendants to incorporate these considerations into WTO dispute settlement proceedings, particularly under the context of public morals.
XX.a of GATT, the protection of human life or health under Article XX.b of GATT, measures relating to prison labor under Article XX.e of GATT, the conservation of exhaustible resources under Article XX.g of GATT, security under
The Parties to this Agreement acknowledge that their trade and economic relations should aim to improve living standards, achieve full employment, and increase real income and effective demand They emphasize the importance of expanding the production and trade of goods and services while ensuring the sustainable use of global resources Additionally, they seek to protect and preserve the environment, aligning their efforts with their varying economic development needs and concerns.
Article XXI of GATT, compulsory licensing and parallel import under TRIPs… For instance, country A brought a case against country B stating that it was in breach of non-discrimination rule of GATT in prohibiting products manufactured by slave workers Later, Panels could make a decision on a defense raised by country B that such discrimination was justified on human rights in reference to Article XX.e of GATT
Gabrielle Marceau, a notable commentator, asserts that the WTO Panels and Appellate Body do not alter rights and obligations under covered agreements when interpreting WTO rules in light of human rights obligations This interpretation is applicable within the WTO forum, particularly when human rights concerns are presented as a defense by the defendant The inherent flexibility of various WTO provisions often helps to prevent conflicts between human rights and international trade law Consequently, the second school of thought posits that the WTO dispute settlement Panels and Appellate Body hold the authority to address human rights issues raised as defenses by countries accused of violating their WTO commitments.