Human rights terminology
Human rights are increasingly incorporated into the legislation of major international organizations such as the United Nations, WHO, FAO, and UNESCO, reflecting their global commitment to human dignity Regional agreements like the EC Treaty, the 2000 Cotonou Agreement, and the 2001 Quebec Convention also emphasize the importance of protecting human rights within their frameworks This growing recognition highlights the significance of human rights as a fundamental aspect of international and regional legal obligations.
The Minis Declaration on a Free Trade Area of the Americas emphasizes the importance of maintaining the UN as the primary authority for human rights interpretation, with other international organizations serving as references Human rights are inherent to all individuals, regardless of nationality, residence, gender, ethnicity, color, religion, language, or any other status, highlighting their universal nature.
Human rights encompass both the entitlements of individuals and the responsibilities of States and others to uphold these rights Under international law, States have a duty to respect, protect, and fulfill human rights, which includes refraining from actions that interfere with individuals' enjoyment of these rights Specifically, the obligation to respect requires States and their agencies to abstain from any conduct that undermines or restricts human rights, ensuring a foundation for the protection and realization of fundamental freedoms worldwide.
Ernst-Ulrich Petersmann (2005) explores the relevance of the 'Human Rights Approach,' as advocated by the UN High Commissioner for Human Rights and the International Labour Organization, to WTO law and policy He argues that integrating human rights principles into WTO frameworks enhances the legitimacy and coherence of global trade regulations Petersmann emphasizes that aligning WTO policies with human rights standards is essential for upholding fundamental freedoms while promoting sustainable economic development This perspective highlights the importance of incorporating human rights considerations into international trade law to foster a more equitable global trading system.
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 rights that every individual is entitled to, and states have a duty to protect and promote these rights According to the OHCHR, states are required to safeguard individuals and groups from human rights abuses by third parties, which involves taking positive actions to facilitate the enjoyment of basic rights and assisting those unable to exercise their rights independently At an individual level, respecting the human rights of others is essential; harmful actions that violate others’ rights can trigger the state's obligation to intervene and implement measures to prevent or address such violations.
Universal instruments related to human rights can be categorized into three main groups: the International Bill of Rights, which includes key foundational documents; the core human rights treaties that specify and protect various rights; and other universal instruments that address diverse aspects of human rights globally.
The International Bill of Human Rights comprises the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights These key documents collectively establish fundamental human rights and freedoms worldwide Additionally, the Optional Protocol and the Second Optional Protocol to the International Covenant on Civil and Political Rights focus on the abolition of the death penalty, reflecting global efforts to promote human dignity and oppose capital punishment.
There are nine core international human rights treaties, some of which are supplemented by optional protocols addressing specific issues 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 Other key treaties are 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, the Convention on the Rights of the Child, and the 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
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
This article highlights key international treaties and protocols dedicated to protecting vulnerable populations, including migrant workers and their families, from human rights violations It emphasizes legal frameworks such as the International Convention for the Protection of All Persons from Enforced Disappearance and the Convention on the Rights of Persons with Disabilities, ensuring rights and protections for marginalized groups The document also references several Optional Protocols aimed at abolishing the death penalty, preventing torture, and addressing issues like child exploitation, sale, and involvement in armed conflicts These international agreements demonstrate a global commitment to promoting human rights, combating discrimination, and safeguarding the dignity of all individuals across various vulnerable communities.
This article highlights a variety of universal instruments related to human rights, encompassing different types of rights and beneficiaries While declarations, principles, guidelines, standard rules, and recommendations lack binding legal authority, they carry significant moral weight and offer practical guidance to states In contrast, covenants, statutes, protocols, and conventions are legally binding for states that ratify or accede to them, reinforcing their importance in the international human rights framework.
International human rights instruments encompass a wide range of terminologies, reflecting the diversity in interpreting human rights Each instrument is inherently tailored to specific types of human rights, aligning with different categories of subjects governed This variation underscores the nuanced and multifaceted nature of human rights, where distinct legal texts address distinct rights and their application to various populations.
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 firmly recognized in various human rights agreements worldwide According to Article 25.1 of the Universal Declaration of Human Rights, health, well-being, and medical care are essential components of an adequate standard of living Ensuring access to healthcare is a fundamental aspect of human dignity and rights.
Article 12.1 of the International Covenant on Economic, Social and Cultural Rights affirms that every individual has the right to the highest attainable standard of physical and mental health The WHO Constitution emphasizes that the enjoyment of the highest standard of health is a fundamental human right, recognized universally by its increasing membership of over 190 countries According to the preamble of the WHO Constitution, this right is guaranteed to all people without discrimination based on race, religion, political belief, or socio-economic status.
The right to health does not guarantee being healthy but requires governments to create conditions enabling everyone to achieve optimal health This involves ensuring access not only to healthcare services but also to essential determinants of health such as safe drinking water, adequate sanitation, nutritious food, proper housing, healthy work and environmental conditions, and access to health education—including sexual and reproductive health information.
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 an adequate standard of living that ensures the health and well-being of themselves and their family, including access to essential needs such as food, clothing, housing, and medical care Additionally, individuals are entitled to social services and security in times of unemployment, sickness, disability, widowhood, old age, or other circumstances beyond their control that threaten 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 Universal Declaration of Human Rights affirms that everyone has the right to life, liberty, and security of person, emphasizing the fundamental right to live in freedom and safety Additionally, Article 6.1 of the International Covenant on Civil and Political Rights states that every human being has the inherent right to life, which must be protected by law and must not be arbitrarily taken away Furthermore, Article 6 of the Convention on the Rights of the Child emphasizes the importance of safeguarding children's right to life, ensuring protection under legal frameworks worldwide.
States parties acknowledge that every child has the inherent right to health and are committed to ensuring the maximum survival and development of each child Additionally, Article 10 of the Convention on the Rights of Persons with Disabilities emphasizes that all human beings have the right to life, and states must take necessary measures to ensure persons with disabilities can enjoy this right equally.
Under international human rights regulations, the right to life extends beyond mere survival to include the effective enjoyment and development of life States have a formal obligation to implement protective measures to prevent the loss of life and take preventive actions in response to known risks Ensuring the right to life involves both safeguarding individuals from imminent dangers and promoting conditions that support their well-being and development.
The human right to health is essential for overall well-being and significantly impacts other fundamental human rights and freedoms Ensuring that this right is well protected and guaranteed directly supports the right to life and promotes the realization of broader human rights Therefore, safeguarding the right to health is vital for fostering a just and equitable society where all individuals can thrive.
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 Havana Conference was held by the United Nations in 1947 to establish a comprehensive multilateral trade organization through the Havana Charter This charter aimed to promote not only economic development but also political and social stability, fostering peaceful international relations Its primary goals included creating conditions for stability, enhancing well-being, achieving full employment, and raising living standards worldwide Despite these ambitious objectives, the Havana Charter ultimately never came into force, preventing the establishment of the proposed International Trade Organization.
Several negotiation rounds, including Geneva, Annacy, Torway, Dillon, Kennedy, and Tokyo, focused on improving market access by progressively reducing tariffs The preamble of GATT 1947 emphasized not only trade and economic endeavors but also highlighted the importance of raising living standards and ensuring full employment.
The 1947 agreements include safeguard clauses that prioritize non-economic objectives over trade welfare These clauses aim to prevent serious injury to domestic producers, protect public morals, and safeguard human, animal, and plant life Such provisions ensure that trade policies can be adjusted to address critical societal and environmental concerns, emphasizing the importance of balancing economic interests with broader public and moral priorities.
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
Our goal is to achieve the objectives outlined in the United Nations Charter, focusing on improving living standards, promoting full employment, and fostering sustainable economic and social development, as emphasized in Article 55.
To this end they pledge themselves, individually and collectively, to promote national and international action designed to attain the following objectives
The article emphasizes that international trade and economic relations should aim to improve living standards, achieve full employment, and foster sustained growth in real income and effective demand It highlights the importance of utilizing global resources efficiently, expanding the production of goods, and increasing the exchange of goods worldwide to drive economic development.
18 Article XIX of GATT 1947 health‖, ―conservation of exhaustible natural resources‖ 19 and ―national security‖ 20
Until the Uruguay Round, the GATT system expanded its scope to include negotiation subjects closely related to human life, such as sanitary and phytosanitary standards, technical regulations, environmental rules, and intellectual property rights These issues impact human well-being by setting standards for consumed goods, contributing positively to the environment, and protecting the rights of intellectual property rights holders.
WTO law extends beyond trade liberalization to significant impacts on human life and environmental sustainability The Marrakesh Agreement’s preamble emphasizes the objectives of promoting sustainable development, protecting, and preserving the environment, alongside improving living standards and ensuring full employment, building on the principles established in GATT 1947 Additionally, the TRIPS Agreement recognizes intellectual property rights as both substantive and procedural individual rights, highlighting the broader scope of WTO rules beyond mere trade facilitation.
The recent WTO negotiation in Doha marked a significant milestone by prioritizing TRIPs and public health within its work program for the first time, highlighting a notable shift towards emphasizing public interest over traditional human rights paradigms The Doha Declaration reinforced the right to protect public health within the TRIPs framework, underscoring WTO's increasing focus on human rights concerns This development suggests that WTO is gradually aligning more closely with human rights principles through legal reforms and member efforts to improve the existing legal system The upcoming sections will provide detailed insights into the Doha negotiations, further illustrating this evolving relationship between WTO policies and public health priorities.
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 theWTO’s legislation
WTO law does not explicitly reference human rights, as the term is not specifically mentioned in WTO agreements However, the agreements include provisions that serve as effective measures, allowing states to protect and promote human rights through trade strategies by taking action against states that violate human rights.
The pivotal provisions for this respect are Article 8 of TRIPS agreement-
This article examines the legal provisions governing exceptions to intellectual property rights and trade regulations, referencing measures necessary to protect public health and prevent abuse of rights as outlined in Articles 6, 7, and 31(b), (f), and (h) of the TRIPS Agreement It emphasizes the significance of the general exceptions under Article XX of GATT 1994, including paragraphs (a), (b), (e), and (g), which permit measures related to security, public morals, and other critical concerns Additionally, the article discusses the exception of security under Article XXI of GATT 1994 and the public morals exception under Article XIV(a) of GATS The primary focus of the dissertation is on the application and implications of Article XX of GATT 1994.
The provisions cited as prime examples of the WTO’s reference to human rights are primarily because they contain language closely related to human rights principles For instance, Article XX.b references “human health,” which directly pertains to the fundamental right to health Additionally, terms like “public morals” in WTO agreements also intersect with human rights considerations, highlighting the organization's recognition of human rights within its trade regulations These articles demonstrate how the WTO incorporates human rights elements into its legal framework, emphasizing the importance of health and moral standards in global trade policies.
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
In his 2002 publication, "Protecting Human Rights in a Global Economy: Challenges for the World Trade Organization," R Howse discusses the critical need for the WTO to integrate human rights considerations into its trade policies He emphasizes that globalization poses significant challenges to safeguarding fundamental human rights, necessitating reforms within international trade frameworks to promote social justice Howse advocates for a balanced approach where economic growth does not come at the expense of human dignity, highlighting the importance of the WTO adopting standards that protect vulnerable populations This policy paper underscores the urgent need for the global trade system to prioritize human rights alongside economic objectives, ensuring a fair and sustainable global economy.
25 Ernst-Ulrich Petersmann (2005), supra note 1 , p.655
Anthony E Cassimatis (2007) explores the legal framework surrounding human rights-related trade measures under international law, emphasizing the legality of trade restrictions imposed in response to violations of human rights obligations His analysis highlights how international law permits certain trade measures as a means to address human rights violations, provided they comply with established legal standards This work underscores the importance of balancing trade policy with human rights enforcement, ensuring that such measures are both lawful and effective in promoting global human rights protection.
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 the importance of safeguarding fundamental rights such as the right to life, a clean and healthy environment, access to food and healthcare, and the right to self-determination over natural resource use These provisions emphasize the need to protect these essential rights to ensure sustainable development and freedom from slavery, underscoring their critical role in promoting human dignity and environmental sustainability.
Key provisions of TRIPS, including Articles 7, 8, 27.2, and 31, are crucial in justifying measures to protect the human right to health Similar to GATT 1994, these provisions include terminology related to human rights, such as social welfare, public order, morality, human health, and the environment, emphasizing the promotion of the right to food, health, development, and access to scientific progress.
Doha development agenda towards Public health
Historical development of the Doha round
The Doha Round, part of the Doha Development Agenda (DDA), is the latest series of multilateral trade negotiations conducted under the WTO, launched in November 2001 at the Ministerial Conference in Doha, Qatar Although WTO members initially aimed to complete negotiations by January 2005, they missed this deadline, and subsequent efforts to conclude by the end of 2006 also proved unsuccessful Despite making some progress at the December 2005 Hong Kong Ministerial Conference, significant gaps remained unbridgeable, hindering the round’s completion.
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 significant impact 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 how TRIPS influences access to essential medicines, education, and cultural expression, emphasizing the need to balance intellectual property protections with the fundamental rights of individuals and communities The report underscores the importance of aligning trade agreements with human rights obligations to ensure that economic policies do not undermine social and cultural development.
Lamy suspended the negotiations in July 2006 Endeavors later concentrated on trying to achieve a breakthrough in early 2007 33
The Doha Round, as outlined in the Fourth Ministerial Conference declaration, took on the comprehensive responsibility for negotiations across key issues such as agriculture, non-agricultural market access (NAMA), services, trade facilitation, trade rules, environmental concerns, and intellectual property—including geographical indications and a multilateral register for wines and spirits Its primary goal is to overhaul the international trading system by reducing trade barriers, updating trade regulations, and enhancing 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 allows a government to permit third parties to produce a patented product or process without the patent owner's consent for a specified period This legal mechanism aims to promote public interest, access to essential medicines, and technological advancement Although commonly understood, the term "compulsory licensing" is not explicitly mentioned in the patent laws but is recognized as a key aspect of intellectual property regulation.
The TRIPS Agreement, which is part of the Doha Development Agenda, emphasizes the concept of "other use without authorization of the right holder" in Article 31 This clause encompasses not only compulsory licensing but also government use for public purposes, highlighting the broader scope of "other use." Specifically, Article 31 addresses both government use and authorized third-party use, making compulsory licensing just one aspect of permitted uses under this provision As a result, when a patented product or process is used by the government or authorized entities without the patent holder's consent, it falls within the scope of compulsory licensing and "other use" provisions.
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 WTO overview on Trips and pharmaceutical patents highlights the obligations and exceptions related to third-party use It explains that governments may authorize third parties to use patented medicines without the right holder’s permission, either through a formal request accepted by the government or via an intentional government grant Such exceptions are permitted to ensure access to essential medicines, balancing patent rights with public health needs (source: WTO, last accessed July 10, 2013).
Compulsory licensing is a key concept in public health, primarily associated with pharmaceuticals Under Article 31 of TRIPs, it can be invoked during national emergencies or other situations of extreme urgency Legally and practically, compulsory licensing is recognized as an essential tool to mitigate the negative impact of patent protections on social interests, ensuring access to vital medicines in times of crisis.
Public health is addressed in Article 8 of the TRIPS Agreement, which permits countries to implement measures necessary to protect public health and nutrition Although the WTO dispute settlement body has not provided a formal interpretation of this terminology, the Declaration on the TRIPS Agreement and Public Health, adopted on November 14, emphasizes the importance of using these flexibilities to ensure access to medicines and safeguard public health interests globally.
Each member has the authority to define what constitutes a national emergency or other circumstances of extreme urgency Public health crises, such as HIV/AIDS, tuberculosis, malaria, and other epidemics, are recognized as potential examples of national emergencies or situations of extreme urgency.
Public health is a vital national concern that addresses dangerous diseases and can represent a national emergency or urgent circumstances Its primary goal is to create societal conditions that promote health and prevent diseases Therefore, public health is closely linked to compulsory licensing, as the enforcement of such measures is often driven by the need to protect the population's well-being during health crises.
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 respecting, protecting, and fulfilling rights related to health, including obligations concerning medicine and public health A human rights perspective seeks to ensure that every individual can attain the highest possible standard of physical, mental, and social well-being Recognizing human rights broadens the understanding of health by considering societal factors and contexts that influence individual and population well-being, making it a valuable approach for all stakeholders concerned with health.
Public health primarily aims to protect collective interests by ensuring every individual’s right to achieve the highest attainable standard of health It focuses on preventing and addressing health illnesses to promote overall well-being By safeguarding human rights related to health, public health efforts guarantee and uphold the fundamental right to health for all individuals.
Negotiating process towards Public health
Although TRIPS does not explicitly mention "human rights" or the "right to health," it confirms WTO members' right to adopt measures, such as compulsory licenses, to protect public health However, the specific circumstances under which these provisions can be utilized to access affordable essential medicines remain unclear The Doha negotiations were driven by concerns that many populations cannot afford necessary medicines, risking public welfare, law enforcement, and social stability.
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, comprising Bangladesh, Barbados, Bolivia, Brazil, Cuba, the Dominican Republic, Ecuador, Haiti, Honduras, India, Indonesia, Jamaica, Pakistan, Paraguay, the Philippines, Peru, Sri Lanka, Thailand, and Venezuela, submitted Proposal 44 (IP/C/W/312, WT/GC/W/450) This proposal urged that the TRIPS Agreement should not hinder member countries from implementing measures to safeguard public health, emphasizing that such protections are essential Notably, the proposal explicitly referenced international human rights law as a relevant framework supporting the right to health and access to medicines within the context of the Declaration.
The obligation to protect 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 epidemics, endemic diseases, occupational illnesses, and other health conditions Additionally, it involves creating conditions that guarantee access to medical services and medical attention for all individuals in case of sickness, as affirmed by the International Covenant on Economic, Social and Cultural Rights.
Developing countries are increasingly expanding their focus on public health to include major chronic diseases such as heart disease, cancer, and diabetes They emphasize a broad approach that covers epidemic, endemic, occupational, and other diseases, as recommended by global health guidelines, to effectively address the diverse health challenges faced by their populations.
A coalition of developed countries led by the US responded to the draft from developing nations by offering several proposals, emphasizing the importance of access to medicines for treatment, especially for the world's poorest populations However, they opposed the inclusion of references to international human rights law in the agreement.
Developed countries disagreed with expanding the scope of public health diseases to include those recommended by developing nations, preferring to focus primarily on HIV/AIDS and other pandemics.
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
The African Group, comprising countries such as Bangladesh, Barbados, Bolivia, Brazil, Cuba, the Dominican Republic, Ecuador, Haiti, Honduras, India, Indonesia, Jamaica, Pakistan, Paraguay, the Philippines, Peru, Sri Lanka, Thailand, and Venezuela, submitted a proposal on October 4, 2001 (IP/C/W/312, WT/GC/W/450) This proposal reflects the group's collective stance within the context of global trade negotiations.
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 that the right to health is central to interpreting the agreement, highlighting its importance in safeguarding public health Notably, the final text of the Doha Declaration aligns more closely with the proposals of developing countries than those of developed nations, marking a significant development in WTO negotiations The declaration explicitly recognizes major health crises such as HIV/AIDS, tuberculosis, and malaria, acknowledging their severe impact on many developing and least-developed countries This stance reinforces the position of developing nations in prioritizing public health concerns within the global intellectual property framework.
The right to health played a crucial role in shaping negotiations over the Doha Declaration, emphasizing the importance of developing countries leveraging human rights norms from the International Covenant on Economic, Social and Cultural Rights Ultimately, the Doha Declaration reaffirmed this commitment in Paragraph 4, highlighting the significance of health rights in global trade and development agreements.
We reaffirm our commitment to the TRIPS Agreement while emphasizing that it should be interpreted and implemented in a way that supports WTO Members' right to protect public health Specifically, the Agreement must facilitate access to medicines for all, ensuring that public health considerations are prioritized alongside intellectual property rights.
The Doha Declaration emphasizes the importance of "the right to health," but it does not explicitly mention "human rights" as noted in the developing countries' draft This highlights a significant difference between the proposals, with developing countries framing access to essential medicines as a fundamental human right, while the Doha Declaration views it primarily as a government's responsibility to ensure and protect public health The approach of developing countries focuses on individual rights to healthcare, whereas the Doha Declaration recognizes the right of each WTO member to safeguard public health for its citizens.
52 Doha declaration on TRIPs agreement and Public health Adopted on 14 November 2001, WT/MIN(01)/DEC/2 20 November 2001, paragraph 1
Developing countries’ approach aligns closely with international human rights law, emphasizing rights inherently belonging to all human beings In contrast, the Doha Declaration’s approach focuses indirectly on the right of states to protect human rights concerns, particularly prioritizing public health This distinction highlights differing perspectives on the framing and application of human rights in global health policies.
During the Doha negotiations, developing countries emphasized the right to health in their draft Doha Declaration, highlighting the influence of a human rights approach on international trade law obligations The declaration officially recognizes the "right to protect public health," underscoring its significance in shaping trade-related policies that prioritize health rights.
Is Doha declaration binding?
The Doha Declaration is a Ministerial decision under Article IX.1 of the Marrakesh Agreement establishing the WTO, aimed at clarifying the TRIPS Agreement's role in public health It interprets key aspects of the TRIPS Agreement to prioritize public health considerations and instructs the Council for TRIPS to take necessary actions Additionally, the declaration addresses the implementation of transitional provisions specifically for least developed countries, ensuring they can effectively utilize flexibilities under TRIPS.
The key question is whether the interpretation under Article IX.2(55) of the Marrakesh Agreement Establishing the WTO constitutes an authoritative interpretation, referencing the Ministerial decision on the interpretation of WTO multilateral agreements, or if it should be considered a standard Ministerial decision under Article IX.1 Clarifying this distinction is essential for understanding the binding authority of such interpretations within WTO law and ensuring compliance with WTO dispute settlement procedures.
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
The Marrakesh Agreement, under Article IX.2, grants the Ministerial Conference and the General Council exclusive authority to adopt interpretations of the Agreement and Multilateral Trade Agreements, with specific procedures for interpreting Annex 1 agreements based on recommendations and a three-fourths majority vote The TRIPS and Public Health agenda was initiated by developing countries’ proposals, but the TRIPS Council’s recommendations influenced the process, and the Doha Declaration did not explicitly aim to clarify TRIPS provisions Moreover, the Declaration rejected suggestions from both developing and developed countries for such clarifications, instead reaffirming the original context and flexibility of the TRIPS Agreement Therefore, the Doha Declaration on TRIPS and Public Health cannot be considered an authoritative interpretation under Article IX.2 of the Marrakesh Agreement.
Although WTO agreements like Article XX of GATT 1994 and TRIPs do not explicitly mention "human rights," the Doha Declaration on TRIPs and Public Health reflects an optimistic shift towards integrating human rights considerations within WTO policies This development shows a movement towards prioritizing public health concerns in WTO discussions According to Article X.1.58 of the Marrakesh Agreement, proposals to amend Multilateral Trade Agreements require consensus approval, which is challenging because developed countries primarily hold patents on crucial products and processes Conversely, Article X.3.59 of the Marrakesh Agreement addresses the procedural aspects of amendments, highlighting the complexity of aligning trade policies with human rights and public health goals.
The African Group, comprising countries such as Bangladesh, Barbados, Bolivia, Brazil, Cuba, the Dominican Republic, Ecuador, Haiti, Honduras, India, Indonesia, Jamaica, Pakistan, Paraguay, the Philippines, Peru, Sri Lanka, Thailand, and Venezuela, submitted Proposal 56 on October 4, 2001 (IP/C/W/312, WT/GC/W/450) This proposal reflects the group's collective position and contributions within the broader international negotiations.
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)
The Marrakesh Agreement's Article X.1 states that any WTO Member can propose amendments to the Agreement or the Multilateral Trade Agreements in Annex 1 by submitting a proposal to the Ministerial Conference Additionally, relevant Councils can also submit proposals to amend provisions they oversee within these agreements Once a proposal is formally tabled at the Ministerial Conference, a decision to submit it to Members for acceptance requires consensus within 90 days, unless the Conference decides otherwise The decision on acceptance will specify whether certain procedural paragraphs apply, ensuring a transparent and cooperative amendment process among WTO Members.
The Marrakesh Agreement’s Article X.3 establishes a clear process for amending WTO provisions and Multilateral Trade Agreements, requiring acceptance by two-thirds of Members for amendments to take effect universally This streamlined approach facilitates timely adoption of amendments that alter Members' rights and obligations, even though the exact timing of such acceptance cannot be precisely predicted.
The Doha Declaration on TRIPS and Public Health remains relevant in dispute settlement bodies when interpreting TRIPS provisions It is considered a "subsequent agreement" under Article 31.3(a) of the Vienna Convention on the Law of Treaties, which influences how the treaty is understood and applied Notably, Paragraph 4 of the Doha Declaration explicitly emphasizes the importance of public health considerations in interpreting TRIPS obligations.
We affirm that the TRIPS Agreement does not prevent WTO Members from taking essential measures to protect public health While reaffirming our commitment to the TRIPS Agreement, we emphasize that it should be interpreted and implemented in a way that supports the right of countries to safeguard public health and promote universal access to medicines.
The Doha Declaration instructs the Panel and Appellate Body to interpret TRIPS provisions with a focus on public health considerations It emphasizes the importance of developing a specific interpretative principle that addresses human rights concerns within the framework of TRIPS This clarification supports balancing intellectual property rights with the need to promote access to essential medicines and protect public health worldwide.
Developing countries should adopt the Doha Declaration approach to effectively protect public health and improve access to medicines By doing so, they can maximize their rights under international trade agreements while preparing strong legal arguments in case of disputes related to public health This strategy ensures they can defend their interests and promote equitable healthcare outcomes globally.
The "right to protect public health" must be prioritized in dispute settlement proceedings related to the TRIPS Agreement, with amendments approved by two-thirds of WTO Members Once accepted, these amendments become binding for each Member that consents to their adoption The Ministerial Conference can decide by a three-fourths majority that certain amendments are of such significance that Members who do not accept them within a specified period may choose to withdraw from the WTO or remain members with the Conference’s approval.
The Doha Declaration is regarded as a "subsequent agreement" under Article 31, Section 3.a of the Vienna Convention on the Law of Treaties, which guides the interpretation of the TRIPS agreement Given the difficulty in securing a Ministerial agreement to interpret WTO multilateral agreements—since such interpretations require a three-fourths majority of Members—the Doha Declaration serves as a crucial bridge It promotes the interpretation of WTO agreements within the context of human rights, facilitating a more accessible and cooperative approach to treaty interpretation.
In overall, chapter one gives readers an overview on the relationship between human rights and the WTO
International organizations recognize human rights within their own legal frameworks, but the United Nations serves as the core authority for interpreting human rights According to UN human rights law, human rights encompass both individual rights and corresponding obligations, including the rights of individuals and the responsibilities of states and other actors.
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
Over time, the WTO's approach to human rights has evolved significantly, moving from negotiation rounds prior to the Uruguay Round to the more comprehensive Doha Development Agenda Notably, the Doha negotiations and its subsequent declaration stand out as a key milestone, as this declaration can be referenced as an interpretive tool for human rights within the framework of 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 article explores whether the WTO, specifically the Panel and Appellate Body, has the authority to consider human rights when interpreting key provisions such as Article XX of the GATT 1994 and TRIPS It examines the extent to which these WTO bodies can incorporate human rights considerations into their interpretations, highlighting the legal scope and limitations of their competence in balancing trade rules with human rights obligations.
It should be noted that human rights approach in the interpretation of Article
When interpreting provisions of the XX GATT 1994 and TRIPs, it is important to recognize that these agreements do not equate to the rights of human beings Human rights encompass both rights and obligations, with human beings holding rights and states bearing obligations A human rights-based approach to interpreting Article XX of GATT 1994 and TRIPs emphasizes the obligation of WTO member states to respect, protect, and fulfill human rights within their trade commitments This perspective is supported by three key reasons: firstly, only WTO member countries can participate in dispute settlement proceedings due to the mechanism's confidentiality; secondly, the so-called human rights provisions in these agreements serve as defenses for breaches of WTO member obligations, which will be further analyzed in terms of WTO bodies' interpretative authority; and thirdly, ratifying WTO agreements limits the autonomy of states regarding trade policies, aiming to balance trade liberalization with non-trade considerations to respect human rights.
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
Scholars like James Harrison argue that such bodies lack the authority to interpret provisions related to human rights Harrison emphasizes that these organizations are not empowered to define or reinterpret human rights standards, which should remain within the domain of specialized legal and human rights institutions He further reasons that allowing these bodies to interpret human rights could lead to inconsistent or biased applications, undermining the universality and objectivity of human rights protections Additionally, Harrison contends that their lack of doctrinal expertise and accountability raises concerns about the legitimacy and accuracy of any interpretations they might issue in this sensitive area.
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 under WTO agreements, as outlined in Article 1.1 of the Dispute Settlement Understanding (DSU) Since WTO agreements do not explicitly mention "Human Rights" as an official term, WTO dispute settlement procedures cannot address claims alleging violations of international law that are not rooted in WTO provisions Therefore, disputes involving human rights issues fall outside the scope of WTO dispute resolution mechanisms.
The book "The Rationale for a Human Rights Methodology in the WTO Context," authored by 62, examines the critical influence of human rights principles on World Trade Organization policies Published in 2007 by Oxford and Portland, this work explores how integrating human rights considerations can promote fairer and more equitable trade practices within the WTO framework It emphasizes the importance of aligning trade regulations with human rights obligations to ensure that economic development does not compromise individual freedoms and social justice This publication provides a thorough analysis of the impact of human rights on WTO decision-making processes and advocates for a human rights-based approach to international trade governance.
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 apply to disputes concerning the consultation and dispute settlement provisions of the agreements listed in Appendix 1, known 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 DSB cannot alter the rights and obligations established by covered agreements, raising questions about how it can incorporate international human rights law standards without modifying WTO commitments Furthermore, since no treaties have universal membership, applying international human rights law that binds all WTO members becomes challenging, as not all members are parties to the same treaties.
Most scholars supporting the remaining school of thought argue that a more detailed examination of the issues would lead to the opposite conclusion They contend that the arguments favoring the competence of dispute settlement bodies to interpret human rights norms are more convincing than those of the defenders In response, representatives of the second school of thought have proposed three key justifications aimed at strengthening their position and overshadowing opposing arguments.
Although the WTO's primary goal is to facilitate international trade and reduce trade barriers, it is not solely focused on commercial interests; recent discussions highlight its regard for "non-trade concerns" such as food security, environmental protection, rural development, employment, and poverty alleviation The WTO recognizes these issues as integral to its broader functions, with the glossary explicitly citing them under the Agriculture Agreement preamble This reflects an understanding that trade policies can support socio-economic development without compromising environmental and social goals.
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
"Non-trade concerns should be broadly understood as issues beyond trade, capturing various values that attract WTO attention." "The WTO's focus extends beyond trade concerns to include non-trade concerns that impact its members." "The Preamble of the Marrakesh Agreement establishing the WTO emphasizes conducting relations to improve living standards and ensure full employment." "Sustainable development, including environmental protection as part of the right to life, is an implicit objective of the WTO." "Human rights concerns are also integral to the WTO's mission, reflecting its commitment to promoting broader social values."
WTO dispute settlement proceedings primarily address claims based on WTO agreements; however, WTO dispute bodies, including Panels and the Appellate Body, can decide on trade issues that involve non-trade matters like human rights, as part of their implied or incidental mandate to resolve disputes Although claims based solely on human rights are not permitted under Article 1.1 of the Dispute Settlement Understanding (DSU) because the WTO agreements do not explicitly cite human rights, human rights can be invoked as a defense in WTO disputes Specific WTO articles explicitly mention non-trade issues related to human rights, such as public morals under Article XX, allowing defendants to reference human rights concerns during dispute settlement proceedings.
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 aim to conduct their trade and economic relations to enhance living standards, promote full employment, and support sustained growth in real income and demand They seek to expand the production and trade of goods and services while ensuring the optimal use of global resources aligned with sustainable development Additionally, they prioritize environmental protection and preservation, striving to balance these goals with their varying needs and economic development levels.
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 Marceuau, a prominent commentator, asserts that WTO Panels and the Appellate Body can interpret WTO rules to respect human rights obligations without altering the rights and obligations established under the agreements, especially when human rights are raised as a defense by the defending country The inherent flexibility within WTO provisions often helps prevent conflicts between human rights and international trade law, supporting the view that it is within WTO dispute settlement bodies' jurisdiction to address human rights issues raised during disputes.