Advancing Global Public Health Standards: A Precarious Balance Five Pivotal WTO Cases

Abstract

This paper examines five World Trade Organization (WTO) disputes and their related settlements to explore the primacy of public health concerns in trade-related matters. It asks first, whether the WTO successfully manages the interface between trade-related questions and global public health concerns? Second, we explore if the WTO decisions reflect strong and effective public health standards? The five cases considered include the French asbestos ban, the EU and US’ restriction of world access to generic drugs, the US-Indonesia dispute related to clove cigarettes, the US-EU disagreement over hormones in beef and Thailand’s attempts to introduce plain packaging for alcohol products.This paper concludes that, despite moments of hope that the WTO might be more than just a trade organisation, the WTO’s major focus is trade, with public health occupying a very small role in its decision making in judicial culture. Even when a world consensus exists among scientific and policy experts that a product is detrimental to human well-being, member states’ trade interests are given greater weight than the immediate need to protect citizens’ health and raise global health standards – access to generic drugs, protection against carcinogenic material such as asbestos and restriction on cigarette packaging. WTO decisions appear to be made in a legal black hole without linkage to human rights legal protection of the individual and the collective. Because the WTO jurisprudence is decided on the case by case basis, frequently the decisions of WTO panels while technically correct they fail to have a larger view of global public health issues. The paper concludes that the WTO is in need of rebalancing its trade vs. health foci, and of heightening the importance placed on public health, in order to address the needs of a 21st-century world and to gain global citizens’ trust. Against a weak trade vs global health regulatory regime, the paper illustrates how compliance with WTO decisions in the area of global public health leaves a great deal of room for foot dragging by governments which emboldens big Pharma and other global actors to use the WTO’s commercial norms to armour plate themselves against progressive change. Hence progress towards strengthening global health standards is unlikely to come from the WTO’s current culture of jurisprudence.