Interpretation of wto agreements in the context of human rights

HO CHI MINH CITY UNIVERSITY OF LAW INTERPRETATION OF WTO AGREEMENTS IN THE CONTEXT OF HUMAN RIGHTS: A CASE STUDY OF ARTICLE XX GATT 1994 AND TRIPS AGREEMENT Student: Tran Thi Cam Tha

HO CHI MINH CITY UNIVERSITY OF LAW

MANAGING BOARD

OF SPECIAL TRAINING PROGRAMS

-

-BACHELOR THESIS INTERNATIONAL LAW MAJOR

INTERPRETATION OF WTO AGREEMENTS

IN THE CONTEXT OF HUMAN RIGHTS:

A CASE STUDY OF ARTICLE XX GATT 1994 AND

Supervisor: Ph.D Le Thi Anh Nguyet

HO CHI MINH CITY

2013

HO CHI MINH CITY UNIVERSITY OF LAW

INTERPRETATION OF WTO AGREEMENTS

IN THE CONTEXT OF HUMAN RIGHTS:

A CASE STUDY OF ARTICLE XX GATT 1994 AND

TRIPS AGREEMENT

Student: Tran Thi Cam Thach Student Code: 0955050186

Class: CLC34

Supervisor: Ph.D Le Thi Anh Nguyet

HO CHI MINH CITY

2013

Sinh viên thực hiện:

Statutory Declaration

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

Hochiminh, 15th July 2013

Tran Thi Cam Thach

TABLE OF CONTENT

INTRODUCTION 1

CHAPTER ONE: THE RELATIONSHIP BETWEEN HUMAN RIGHTS AND THE WTO 7

1.1 Human rights terminology 7

1.2 The right to health and the right to life as two important human rights 10

1.3 Does WTO agreements cover ―Human rights‖? 12

1.3.1 ―Human rights‖ before Uruguay round 12

1.3.2 ―Human rights‖ in the WTO‘s legislation 14

1.4 Doha development agenda towards Public health 15

1.4.1 Historical development of the Doha round 15

1.4.2 Negotiating process towards Public health 18

1.4.3 Doha round‘s declaration 20

1.4.4 Is Doha declaration binding? 21

CHAPTER 2: INTERPRETATION OF THE GATT’S ARTICLE XX AND TRIPS IN THE CONTEXT OF HUMAN RIGHTS 25

2.1 Grounds for the interpretation of Article XX GATT 1994 and TRIPs agreement in the context of ―Human rights‖ 25

2.1.1 Dispute Settlement Bodies competence to interpret Article XX GATT 1994 and TRIPs agreement in the context of human rights-is it feasible? 26

2.1.2 Limitation for WTO Dispute Settlement Bodies in interpreting issues related to human rights 30

2.2 ―Human rights‖ content in Article XX GATT 1994 36

2.2.1 Public Morals –US Gambling 36

2.2.2 Protection of Human life or health-Thailand Cigarettes and EC Asbestos 39

2.2.3 Measures relating to the products of ―prison labor‖ 41

2.2.4 Conservation of exhaustible natural resources- US Shrimp 42

2.3 ―Human rights‖ content in TRIPs 44

2.3.1 Intellectual property right and human rights relation 44

2.3.2 Human rights in TRIPs 45

CHAPTER 3: WTO JURISPRUDENCE ON CASES “RELATING TO” HUMAN RIGHTS 52

3.1 United States – Import Prohibition of Certain Shrimp and Shrimp Products (WT-DS 58) 52

3.1.1 Facts of the case 54

3.1.2 ―Sustainable development‖ consideration in relation to interpreting ―Exhaustive natural resource‖ terminology 57

3.1.3 Evaluating Appellate Body‘s report over ―Sustainable development‖ consideration in relation to interpreting ―Exhaustive natural resource‖ terminology 60

3.2 Canada – Patent Protection of Pharmaceutical Products Case WT/DS 114 64

3.2.1Facts of the case 64

3.2.2 ―Public health‖ consideration in relevant provisions‘ interpretation 68

3.2.3 Evaluating Panel‘s report toward relevant provisions‘ interpretation 68

CONCLUSION 70

LIST OF ABBREVIATIONS

DSU Dispute Settlement Understanding

GATS The General Agreement on Trade in Services

GATT The General Agreement on Tariffs and Trade

SPS Agreement on Sanitary and Phytosanitary Measures TRIPs Agreement on Trade-Related Aspects of Intellectual

Property Rights

UN The United Nations

WTO World Trade Organization

INTRODUCTION

1 Imperativeness of the Study

WTO is an international organization which seeks for trade liberalization Also, it is a place for settle trade dispute among its member nations As for human rights, no provision in WTO agreements does cite human rights as an official terminology In recent years, the linkage of human rights standards and trade measures has nevertheless become a much discussed topic in international relations

by scholars, human rights specialists, socialist and jurisprudents also Besides, there have been a number of scholars rejecting the relationship between human rights and the WTO as well as the WTO Dispute Settlement Bodies‘ competence toward human right interpretation

Whether WTO Dispute Settlement Bodies are obligatory to interpret WTO provisions in the context of human rights? The answer is yes WTO agreements do contain certain so-called-human rights terminologies Outstandingly, Article XX GATT 1994 and TRIPs agreement express most obviously the relation to human rights, specifically, the two fundamental human rights- the right to life and the right

to health These provisions are contained in WTO covered agreements in term of Article 3.2 of DSU Additionally, Dispute Settlement Bodies are bound by Vienna convention on the law of treaties which referring to several interpretive tools to examine human rights terms

Significantly, positive moments have been taken by WTO members and WTO Dispute Settlement Bodies towards interpreting WTO agreements in the context of human rights

First of all, WTO‘s goal is to improve the welfare of its member countries‘

people However, TRIPs agreement which gave birth to patent impedes poor people from access to affordable medicine, this in turn affects adversely to human right to health In reality, a potential number of member countries, especially, developing countries are in extreme difficulty of facing with several severe diseases, particularly AIDS But Doha negotiation over ―TRIPs and Public health‖ and its

declaration which firmly recognized State member obligation to protect public health are salient example for WTO‘s effort toward public health enhancement This calls to mind the attention of the WTO towards human right to health in term

of public health

Secondly, WTO Dispute Settlement Bodies, in recent years, seem to interfere

human rights issues with WTO obligations by referring to several other international agreements out of WTO agreements system whose purpose is to ensure, protect and fulfill human rights in particular fields and giving an positive and optimistic toward issue related to human rights For instance, the right to health

was encroached upon by the Thai Cigarettes case, the Asbestos case and the right to life by the Shrimp and turtle case

In addition to such advantages, some pit-falls still exist in the WTO Dispute

Settlement proceeding toward relevant-human rights terms and standards First,

dissimilar with appreciative GATT‘s interpretation, TRIPs agreement‘s interpretation of the Dispute Settlement Bodies to these ones was rare and strict, even disposing to take human rights in to consideration when they deal with the

case Second, some human-rights-related-provisions under TRIPs agreement and

Article XX GATT 1994 have not been challenged by members; thereof, there is no official jurisprudence of interpreting these terms These shortcomings will have negative effects on GATT‘s Article XX and TRIPs interpretation in the context of human rights later

So far, many researches, projects have dealt with the relation between human rights and the WTO Nevertheless, the insufficiency still exists in the specific field of

―interpretation‖ as none of these researches stating and analyzing this in a clear specific and in-depth way Besides, there have been no Articles and studies specifically working in human rights in WTO in general and Article XX GATT

1994 and TRIPs interpretation in the context of human rights in particular implemented by Vietnamese scholars For all above reasons, I am inspired to

choose the title: “Interpretation of WTO Agreements in the context of Human

rights: A case study of Article xx GATT 1994 and TRIPs Agreement” to my

bachelor thesis

2 Purposes of the Thesis

Studying the topic named ―Interpretation of the GATT‘s Article XX and TRIPs in the context of Human rights‖, the author seeks to achieve these following purposes:

First of all, the thesis will provide a general understanding some fundamental

academic issues in regard to the relationship between Human rights and the WTO

by giving legal approaches, definitions, characteristics of human rights interpretation together with two fundamental human rights in international law, an overview of human rights in WTO context trough WTO historical development, current legislation and negotiation

Secondly, WTO Dispute settlement Bodies‘ competence toward human rights

will be figured out Particularly, the thesis will study human rights interpretation in some particular provisions of WTO, including Article XX GATT 1994, Article 7, 8,

28 and Article 31 of TRIPs agreement

Subsequently, analyzing two WTO cases regarding to Article XX GATT

1994, and TRIPs agreement in tern to examine how human rights have been interpreted in WTO dispute settlement proceedings is also a core purpose of this thesis

Finally, from all these presentations, the thesis will give a prediction

towards human rights interpretation in the future WTO dispute settlement proceedings

3 Thematic delimitations

With the restriction of time and ability of the author, this thesis is not intended to provide a comprehensively in-depth view on all WTO-agreements which are related to human rights– a wide field containing many researches of well-known socialists and jurisprudents WTO legislation includes diverse agreements regarding to human rights, namely GATT 1994 agreement, particularly, Article XX-

general exceptions and Article XXI-security exception; TRIPs agreement; GATS agreement, particularly Article XIV(a); SPS agreement; and other agreements

This thesis concentrates only on the TRIPs agreement and Article XX GATT

1994 Moreover, to investigate thoroughly about the interpretation of human rights under TRIPs agreement and Article XX GATT 1994, the author also analysis two cases in regard to these two legal instruments in turn

In relation to human rights in WTO agreements, there has been a great diversity of studies and scientific studying Articles with numerous approaches For instance, the relation between international trade and human rights from the economic perspective, WTO and human rights linkages, some litigating problems regarding to human rights in WTO like human rights-based trade measures, types of human rights arguments against the WTO and so on In the study extent of this thesis, the issue of interpretation of the Article XX GATT 199and TRIPs would be focused on

4 Research methodology

Pursuant to the purposes as mentioned above, this thesis use four methods:

First, description method is used mainly in chapter 1, chapter 2 and chapter 3

as well to present definitions, perspectives, approaches, provisions, interpretation of law;

Second, comparison is utilized to clarify the involvement of WTO in

comparison with GATT towards Human rights approach and the similarities and differences of Developing and developed countries‘ proposals in Doha negotiation round, the divergences between various scholars‘ viewpoints

Third, analysis is used in all chapters, especially chapter 2 and chapter 3, to

give analytical view over some case studies, evaluate the Dispute Settlement Bodies‘ interpretation, and withdraw characteristics, advantages, disadvantages, shortcomings, conclusions

Forth, system is made use of in all chapters to select and arrange collected

information so that they can be used rationally related to each other

All methods shall be used flexibly and in combination with one another so as

to attain more effects for researching

5 Literature review

In Vietnam, there have not been any comprehensive and thorough researches

in relation to the WTO agreements interpretation in the context of human rights, apart from some Articles which refer to the WTO states obligation to protect public

health beyond Doha declaration, for example, Le Thi Nam Giang (2011), Vietnam

with the approval of TRIPs agreement‟s amended protocal, Journal of Legislative

Studies-The National Assembly Office, No 5/2011, p 28-34

The relationship between human rights and international trade has been a point of discussion for many years, initially by human rights experts from the mid 1990s From the mid 1990s onwards, more and more scholars began to formulate opinion over human rights concerns in international trade Here are some remarkable books and Articles:

- Thomas Cottier, Joost Pauwelyn and Elisabeth Burgi (2005), Human rights

and International trade, Oxford University Press, Oxford: This book

incorporates the relationship between human rights norms, policies and the World Trade Organization Besides the concern of more explicit to link trade and human rights, the conflict between human rights obligation and international trade is also subscribed It can lead readers further to an overall

of these issues, which is extraordinarily complex

- James Harrison (2007), The human rights impact on the World Trade

Organization, James Harrison, Oxford and Portland, James Harrison: The

Article is undoubtedly the most exhaustive and in-depth analysis of human rights in WTO, especially the trade law approach to the right to health and how to raise human rights arguments in WTO Dispute settlement Proceedings

- Anthony E Cassimatis (2007), Human rights related Trade measures under

International law, International studies in Human rights, Martinus Nijihoff

Publishers is another worth-reading piece It provides an insight of the

human rights related trade measures with numerous case- study analyses

- Among an abundant collection of research works on measures to reform WTO by Ernst-Ulrich Petersmann, James Harrison (2005) in the book named

―Reforming the World Trading System- Legitimacy, Efficiency, and

Democratic Governance‖, Oxford university press, the Article ―The

„Human Rights Approach‟ advocated by the UN High Commissioner for the Human rights and by International Labor Organization: Is it relevant for WTO law and policy?” is the most relevant to my thesis It focuses on

studying the question of WTO Dispute Settlement Bodies- the ability to be

required to address arguments that human rights may be relevant legal

context for interpreting WTO rules

However, researches, study pieces that deeply, clearly and specifically pointed out the interpretation of the WTO agreements, specifically, Article XX GATT 1994 and TRIPs in context of Human rights are still rare Besides, almost researches have a tendency to work generally on case-study rather than take in-depth analysis over particular provisions in WTO agreements relating to human rights

6 Structure of the thesis

In addition to the Introduction and Conclusion, in accordance with the purposes and delimitation presented above, this thesis is divided into three main parts as three following chapters:

Chapter 1: The relationship between human rights and the WTO

Chapter 2: Interpretation of the GATT‘s Article XX and TRIPs in the context of human rights

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

CHAPTER ONE: THE RELATIONSHIP BETWEEN HUMAN

RIGHTS AND THE WTO

With effort to provide an overall look of the relationship between Human rights and the WTO, this chapter will study human rights terminology, the two significant human rights- the right to health and the right to life, examine human rights in the WTO context and Doha negotiation round to find out WTO positive moments to human rights, particularly to the right to health and the right to life

1.1 Human rights terminology

Nowadays, human rights have been increasingly recognized in the legislation

of multi-continental organizations such as the United Nations, the Food and Agriculture Organization, the World Health Organization and the United Nations Educational, Scientific and Cultural Organization (UNESCO), regional economic agreements like the EC Treaty, the 2000 Cotonou Agreement, and the 2001 Quebec Minis Declaration on a Free Trade Area of the Americas.1 However, the UN would still be the core of human rights‘ interpretation whereas other international organizations are just reference Namely, human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, color, religion, language, or any other status.2

Human rights entail not only rights for human being but also obligations to

States and other individuals Firstly, States assume obligations and duties under international law to respect, to protect and to fulfill human rights.3 The obligation to respect means that States and its organs must abstain from doing anything that interferes with or curtails the enjoyment of human rights The obligation to protect

1 Ernst-Ulrich Petersmann (2005), The ‗Human Rights Approach‘ advocated by the UN High Commissioner for the Human rights and by International Labor Organization: Is it relevant for WTO law and policy?,

Reforming the World trade system ,Oxford University Press, p.370

2 Article 2 of The Universal declaration of Human rights; What are human rights, Available at

http://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx , last visited on 16th june 2013

3 What are human rights, Available at http://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx , last visited on 16th june 2013; Christine Breining-Kaufmann (2005), The Legal Maxtrix of Human Rights and

Trade Law: State Obligations versus Private Rights and Obligations, Human Rights and International Trade,

Oxford University Press, p.10

requires States to protect individuals and groups against human rights abuses by third parties The obligation to fulfill means that States must take positive action to facilitate the enjoyment of basic human rights This obligation also requires states to assist those who otherwise cannot enjoy their rights.4 Secondly, at the individual

level, while we are of our human rights, we should also respect the human rights of others We must not do anything harmful to other ones‘ human rights because when

we do so, the State‘s obligation to protect human rights will immediately incur Thereby, that state will take appropriate measures to against the violating action

Generally, universal instruments relating to human rights could be separated into three groups: International Bill of Rights, the core human rights treaties and other universal instruments relating to human rights.5

First, the International Bill of Human Rights includes Universal Declaration

of Human Rights, International Covenant on Economic, Social and Cultural Rights, International Covenant on Civil and Political Rights, Optional Protocol to the International Covenant on Civil and Political Rights, Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty.6

Second, there are nine core international human rights treaties Some of the

treaties are supplemented by optional protocols dealing with specific concerns They consist of International Convention on the Elimination of All Forms of Racial Discrimination, International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, Convention on the Elimination

of All Forms of Discrimination against Women, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Convention on the Rights of the Child, International Convention on the Protection of the Rights of All

4 A Eide (1989), Report updating the Study on the right to food, UN Doc E/CN4./Sub.2/1998/9

5 Universal Human rights instruments, available at

http://www.ohchr.org/EN/ProfessionalInterest/Pages/UniversalHumanRightsInstruments.aspx , last visited on

14th July 2013

6 Universal Declaration of Human Rights (Annex), adopted by General Assembly resolution 217 A (III) of

10 December 1948

Migrant Workers and Members of Their Families, International Convention for the Protection of All Persons from Enforced Disappearance, Convention on the Rights

of Persons with Disabilities, Optional Protocol to the Covenant on Economic, Social and Cultural Rights, Optional Protocol to the International Covenant on Civil and Political Rights, Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, Optional Protocol

to the Convention on the Elimination of Discrimination against Women, Optional protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, Optional protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Optional Protocol to the Convention on the Rights of Persons with Disabilities 7

Lastly, there is a non-exhaustive selection of other universal instruments

relating to human rights with various kinds of human rights and types of beneficiaries The legal status of these instruments varies: declarations, principles, guidelines, standard rules and recommendations have no binding legal effect, but such instruments have an undeniable moral force and provide practical guidance to States in their conduct; covenants, statutes, protocols and conventions are legally-binding for those States that ratify or accede to them.8

A great variety of international human rights instruments is synonymous with diversity of ―human rights‖ terminology interpretation because each instrument has an instinctive interpretation each type of human rights corresponding to every kinds of governed subject, and each type of human rights

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

http://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx , last visited on 22nd June 2013

8

Universal Human Rights Instruments, available at

http://www.ohchr.org/EN/ProfessionalInterest/Pages/UniversalHumanRightsInstruments.aspx , last visited on 22nd June 2013

1.2 The right to health and the right to life as two important human rights

The right to health is recognized in a number of human rights agreements

Health, well-being and medical care are mentioned as purposes of standard of living adequate according to Article 25.1 of the Universal Declaration of Human rights.9

Additionally, Article 12.1 of International Covenant on Economic, Social and

Cultural Rights provides that ―the States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.‖ Particularly, the WHO constitution with its increasing number

of member States10 has proven particularly universal significance of such a right

The preamble of WHO constitution states that ―The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without discrimination of race, religion, political belief, economic and social condition.‖

In principle, the right to health does not mean the right to be healthy.11 The right to health means that governments must generate conditions in which everyone can be as healthy as possible Such conditions range from ensuring not only availability of health services, but also the underlying determinants of health, such

as access to safe and potable water and adequate sanitation, an adequate supply of safe food, nutrition and housing, healthy occupational and environmental conditions, and access to health-related education and information, including on sexual and reproductive health 12

Meanwhile, the right to life is also provided in many international covenants For example, the right to life is acknowledged in Article 3 of the Universal

9

Article 25.1 of the Universal Declaration of Human rights:

Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control

10 As of 22nd June 2013, there are 194 Member States to WHO, available at http://www.who.int/countries/en/ , last visited on 22nd June 2013

11 The right to health, Available at http://www.who.int/mediacentre/factsheets/fs323/en/ , last visited on 10thJuly 2013

12 The right to health, available at http://www.who.int/mediacentre/factsheets/fs323/en/ , last visited on 22ndJune 2013

Declaration of Human rights that ―everyone has the right to life, liberty and security

of person‖ This means that everyone has the right to live, and to live in freedom

and safety 13 Besides, Article 6.1 of the International Covenant on Civil and

Political Rights regulates that ―Every human being has the inherent right to life This right shall be protected by law No one shall be arbitrarily deprived of his life‖ Furthermore, Article 6 of the Convention on the Rights of the Child provides

―(1) States parties recognize that every child has the inherent right to health (2) States Parties shall ensure to the maximum extent possible the survival and development of the child.‖ Finally, Article 10 of the Convention on the Rights of Persons with Disabilities contains the right to life ―States Parties reaffirm that every human being has the inherent to life and shall take all necessary measures to ensure its effective enjoyment by persons with disabilities on an equal basis with others.‖

From the approach of such international human rights regulations, the right

to life is factually not just limited to right of survival, but also extent to right of life effective enjoyment and development As a result, in regard to the right to life, states own the obligation to take protective measures against the loss of life and preventive measures in the face of known risk to life.14

In general, enjoyment of the human right to health is vital to all aspects of a person‘s life and well-being, and it is crucial to the realization of many other fundamental human rights and freedoms.15 Therefore, if the right to health is well guaranteed and protected, both the right to life and other human rights are positively influenced

1.3 Does WTO agreements cover “Human rights”?

1.3.1 “Human rights” before Uruguay round

Havana conference was held by United Nations in 1947 This conference adopted the Havana Charter was meant to establish a multilateral trade organization, named International Trade Organization This charter pursued for not only economic aims but also political and social objectives such as aim to create conditions of stability, well-being which are necessary for peaceful and friendly relations among nations and purpose of attainment of the higher standards of living, full employment.16 However, Havana Charter ultimately never came into force

Several negotiation rounds later including Geneva, Annacy, Torway, Dillon,

Kenedy, Tokyo round mainly focused on market access with efforts to

progressively reduce tariffs The preamble of GATT 1947, in addition to primarily referring to trade and economic endeavor, also pays attention to human issues in

term of raising standards of living, ensuring full employment 17 Furthermore, GATT

1947 provides various safeguard clauses giving priority to non-economic objectives

over trade welfares, for instance so as to prevent ―serious injury to domestic producers‖18, to protect ―public morals‖ and ―human, animal or plant life and

16 Article 1 of Havana Charter:

Recognizing the determination of the United Nations to create conditions of stability and well-being which are necessary for peaceful and friendly relations among nations,

The Parties to this Charter undertake in the fields of trade and employment to co-operate with one another and with the United Nations

For the Purpose of

Realizing the aims net forth in the Charter of the United Nations, particularly the attainment of the higher standards of living, full employment and conditions of economic and social progress and development, envisaged in Article 55 of that Charter

To this end they pledge themselves, individually and collectively, to promote national and international action designed to attain the following objectives

17 GATT 1947 preamble:

Recognizing that their relations in the field of trade and economic endeavour should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, developing the full use of the resources of the world and expanding the production and exchange of goods

18 Article XIX of GATT 1947

health‖, ―conservation of exhaustible natural resources‖19 and ―national security‖.20

Until Uruguay round, the final way under GATT system, it broadened the subjects of negotiation to several fields which are in close relation with human life,

namely sanitary and phytosanitary standards, technical regulations, environmental rules, intellectual property rights Such issues could have influences on human life

because they give requirement on standards of goods which are consumed by human, make positive contributions to environment which is the human living surroundings, protect individual rights of intellectual property rights holders

WTO law goes far beyond trade liberlization and gives much more regards

to respects which enable to affect to human life First, the preamble of Marrakesh agreement establishing the WTO mentions ―sustainable development and seeking both to protect and preserve the environment‖ as an objective of WTO besides

raising standards of living, ensuring full employment which have been already

referred in GATT 1947 Second, TRIPS stipulates intellectual property right as

substantive and procedural individual rights

Doha, the latest negotiation round of WTO, particularly first-time raised TRIPs-Public health as a critical subject in the work program This could be considered as a tremendous emphasis of WTO over Public interest which is the traditional interpretation to refer to human rights.21 Especially, the Doha declaration has reinforced the right to protect public health in the TRIPs context.22 The following part of this thesis will give much more details on the Doha negotiation round All above analyses could lead to a conclusion that WTO is gradually getting closer to ―human rights‖ by its legal involvements and WTO members‘ effort to improve current legal system

19

Article XX of GATT 1947

20 Article XXI of GATT 1947

21 Earnst- Ulrich Petersmann (2002), Constitutionalism and WTO law: from a state-centered towards a human rights approach in international economic law, The WTO and International Trade Law, MPG Books Ltd, Bodmin,Cornal, p.676

22 Frederick M Abbott (2003), the ―Rule of Reason‖ and the right to health: Integrating Human Rights and Competition Principles in the context of TRIPs, Human Rights and International Trade, p.300

1.3.2 “Human rights” in the WTO’s legislation

Factually, WTO law does not explicitly refer to human rights23 for the reason that nowhere in WTO agreements provides specifically ―human rights‖ as a

particular term They do, however, contain provisions that would be ―an effective measure‖ to permit states to protect and promote human rights through trade by

taking certain measures against states that violates human rights.24

The pivotal provisions for this respect are Article 8 of TRIPS agreement-

―measures necessary to protect public health‖ and ―to prevent the abuse of intellectual rights‖25, Article 6, Article 7 and 31 (b), (f) and (h) of TRIPS agreement26, Article XX.(a), (b), (e), (g)-―general exceptions‖27 and XXI of GATT

1994-―exception of security‖28, Article XIV(a) of GATS-―public morals‖29 and so

on My dissertation mainly focuses on the exception of Article XX GATT 1994and TRIPs agreement

The reason for giving such provisions as prime examples of WTO‘s reference to human rights is that these Articles are literately comprised of words and

phrases somehow related to human rights More particularly, ―human health‖ in Article XX.b refers to the right to health In general, ―public morals‖ (Article XX.a), ―prison labour‖ (Article XX.e), ―human life‖ in Article XX.b; the

―conservation of exhaustible natural resources‖ (Article XX.g) regard to the right

27 Ernst-Ulrich Petersmann (2005), supra note 1, p.376

28

Anthony E Cassimatis (2007), supra note 26, p.367

29 Ernst-Ulrich Petersmann (2005), supra note 1, p.376; Christine Breining-Kaufmann (2005), Supra note 3,

p.107

―The exceptions referred to [Article XX] call to mind the protection of the right to life, the right to a clean environment, the right to food and

to health, the right to self determination over the use of natural resources, the right to development and freedom from slavery to mention a few.‖ 30

In relation to TRIPs, some provisions of this agreement including Article 7,

Article 8, and Article 27.2 and Article 31 appear to be significant in relation to the justification of measures taken to protect the human right to health.31 Similar to GATT 1994, there are some terminologies in these provisions relevant to human

rights such as social welfares, order public, morality, human, human health or the environment Those term call to mind the promotion of the right to food and to

health, the right to development, and the right to enjoy the benefits of scientific progress.32

1.4 Doha development agenda towards Public health

1.4.1 Historical development of the Doha round

The Doha Round, whose entire package is called the Doha Development Agenda (DDA), is the latest round of trade negotiations among the WTO

membership and was launched at the Fourth Ministerial Conference in Doha, Qatar,

in November 2001 The initial target that WTO member governments set out is to finish negotiation on 1 January 2005; however, such a deadline was missed After that, members unofficially aimed to finish the negotiations by the end of 2006, it is paradoxical that this attempt was again unsuccessful Further progress in narrowing members‘ differences was made at the Hong Kong Ministerial Conference in December 2005; but some gaps remained unbridgeable and Director-General Pascal

30 United Nations (2000), Globalization and its impact on the full enjoyment of all human rights-Preliminary report of the Secretary-General, A 55-342, p.4

31 Anthony E Cassimatis (2007), supra 26, p.464; Hans Morten Haugen (2009), Human Rights and TRIPS

Exclusion and Exception Provisions, The Journal of World Intellectual Property, Martinus Nijihoff

Publishers, p.352

32

Report of the Report of the High Commissioner (2001), The impact of the Agreement on Trade-Related

Aspects of Intellectual Property Rights on human rights, Economic, Social And Cultural Rights, Economic, Social And Cultural Rights, E/CN.4/Sub.2/2001/13 27 June 2001, p.7

Lamy suspended the negotiations in July 2006 Endeavors later concentrated on trying to achieve a breakthrough in early 2007.33

According to the declaration of the Fourth Ministerial Conference, Doha Round assumed overall responsibility for negotiation over diverse issues, including: (i) Agriculture, (ii) Non-agricultural market access (NAMA), (iii) Services, (iv) Trade facilitation, (v) Rules, (vi) The environment, (vii) Geographical indications: multilateral register for wines and spirits, (viii) Other intellectual property issues, and (ix) Dispute settlement.34 Its aim is to achieve major reform of the international trading system through the introduction of lower trade barriers, revised trade rules and to improve the trading prospects of developing countries.35

In this round, TRIPs and Public health is one of its subjects An overview on the relevant terms will assist for further understandings of negotiation process and declaration altogether

In the most generally understanding, compulsory licensing is that a government allows someone who is not the exclusive patent-holder to produce the patented product or process in a certain period of time without the consent of the patent owner36 Nonetheless, the term ―compulsory licensing‖ does not appear in the

TRIPs Agreement but in Doha agenda Instead, the phrase refers to ―other use without authorization of the right holder‖ appears in the title of Article 31 It should

be noted that compulsory licensing is only part of this since ―other use‖ includes

use by governments for their own purposes37 Article 31 consists of use by the government and use by third parties authorized by the government As a result, compulsory licensing is the circumstance that patented product or process is used by

33 Understanding The WTO: The Doha Agenda, available at

http://www.wto.org/english/thewto_e/whatis_e/tif_e/doha1_e.htm , last visited on 15th 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 15th June 2013

35 The Doha round, available at http://www.wto.org/english/tratop_e/dda_e/dda_e.htm , last visited on 15thJune 101

36 Le Thi Nam Giang (2011), Vietnam with the approval of TRIPs agreement‘s amended protocal, Journal of

Legislative Studies-The National Assembly Office, No.5/2001, p.4

37 Trips and Pharmaceutical Patents - Obligations And Exceptions, available at

http://www.wto.org/english/tratop_e/trips_e/factsheet_pharm02_e.htm , last visited 10th July 2013

third parties authorized by the government This could happen in form of a third party‘ request for use without authorization of the right holder accepted by the government or the government‘s intentional grant to a third party for use without authorization of the right holder

In discussion of public health, compulsory licensing is usually associated with pharmaceuticals.38 In case of the national emergency or other circumstances of extreme urgency under Article 31 of TRIPs, ―compulsory licensing‖ could be taken Therefore, in reality as well as in legitimate theory, compulsory licensing is recognized as the most significant tool to limit negative influences of patent protection over social interest.39

―Public health‖ is not present in Article 31, but Article 8 of TRIPs This provision allows states to adopt ―measures necessary to protect public health and nutrition‖ No interpretation in WTO dispute settlement body proceedings has been

implemented to figure out the meaning of this terminology However, the

Declaration on the TRIPS agreement and public health adopted on 14 November

2001stated that:

―Each member has the right to determine what constitutes a national emergency or other circumstances of extreme urgency, it being understood that public health crises, including those relating to HIV/AIDS, tuberculosis, malaria and other epidemics, can represent a national emergency or other circumstances of extreme urgency.‖ 40

So, it could be concluded that public health is a national situation relating to particular dangerous diseases and can stand for a national emergency or other circumstances of extreme urgency Public health seeks for societal conditions in which people can be healthy by promoting health and preventing diseases.41 Public health thereby has close relation with compulsory licensing for the reason that public health is the condition to apply compulsory licensing

38 Id

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:

A Reader, Routledge, New York, p.34

In principle, the state‘s human rights responsibilities to respect, protect and fulfill rights relating to health also include obligations concerning both medicine and public health Moreover, the human rights perspective aims to guarantee that every individual can achieve the highest attainable standard of physical, mental and social well being Human rights are progressively being understood to offer an approach for considering the broader societal dimensions and contexts of the wellbeing of individuals and populations, and therefore to be of utility to all those concerned with health.42

The primary target of public health is the protection of collective interests for the reason that public health seeks to ensure every person's right to achieve the highest attainable standard of health Public health seeks to address health illness, therefore guarantee and protect the human right to health in particular and human rights in general

1.4.2 Negotiating process towards Public health

Even though TRIPs does not explicitly mention ―Human right‖ in general and the ―right to health‖ in particular, the right of WTO members to adopt measures necessary to protect public health in form of compulsory licenses is confirmed.43However, it is not clear when such provision could be made use of to get access to more affordable essential medicines The original influences eventually resulting in

Doha negotiation round is derived from ―the inability of large segments of the population to obtain medicines and treatment at prices they can afford threatens the vital interest of States in protecting and promoting public welfare, preserving law and order, and maintaining social cohesion‖44

Doha round was similar to the battle field between two group of countries,

developing countries and developed countries, over ―public health‖ The group of

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

―discharging the obligation to protect and promote the fundamental human rights to life and the enjoyment of the highest attainable standard of physical and mental health, including the prevention, treatment and control of epidemic, endemic, occupational and other diseases and the creation of conditions which would assure to all medical service and medical attention in the event of sickness, as affirmed in the International Covenant on Economic, Social and Cultural Rights.‖

Furthermore, developing countries prefer to widen the scale of public health issue to cover heart disease, cancer and diabetes also.46 Epidemic, endemic, occupational and other diseases are general terms of such disease that were recommended by developing countries.47

In response to such developing countries‘ draft, a coalition of developed countries led by US also suggested with a number of proposals They recognized the importance of the access to medicines for treatment, especially to the poorest populations of the globe on one hand, but they were on the other hand opposed to the proposal of referring to international human rights law.48

In regard to kinds of diseases to be subject of public health, developed countries disagreed to widen its scope into such broaden extent as developing countries‘ recommendation Developed countries just wanted to restrict on HIV/AIDS and other pandemics49

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)

1.4.3 Doha round’s declaration

The Doha declaration on the TRIPs agreement and Public health was adopted

in part to clarify that the right to health plays an essential role in interpretation of the agreement.50 Factually, the Doha declaration is one of the few occasions where the final text is much closer to that proposed by developing than developed countries.51 Namely, Doha declaration was in favor of developing countries when recognizing HIV/AIDS, tuberculosis, malaria and other epidemics as the gravity of the public health problems afflicting many developing and least-developed countries.52 This could be considered as corroborating for the developing countries‘ approach

It should be noted that the right to health was a respect in shaping the negotiation over the Doha Declaration in light of the requirement of developing

countries to utilize human rights norms or standards in International Covenant on Economic, Social and Cultural Rights Ultimately, Doha Declaration stated in the

paragraph 4 as below:

―while reiterating our commitment to the TRIPS Agreement, we affirm that the Agreement can and should be interpreted and implemented in a manner supportive of WTO Members' right to protect public health and, in particular, to promote access to medicines for all.‖

This final declaration clearly refers to ―the right to health‖; however, it did not explicitly use the term ―human rights‖ of the developing countries‘ draft.53 It is really different between the proposal of such developing countries and the

conclusion of Doha Declaration In more detail, the approach over ―the right to health‖ of developing countries is on the ground of a basic human right of access to

essential medicines Doha declaration only considers it as a right of governments to guarantee and protect the public health for its citizens It is an individual human right to one side and each WTO member‘s right to the other side It seems to be that

the approach of developing countries is similar to the understanding of the International human rights law whereas Doha Declaration‘s approach is not Namely, International human rights law and the approach of developing countries mentioned directly to human rights in term of rights inherent to human beings while Doha declaration‘s approach cited indirectly to right of states to protect so-called-human-rights-concerns, particularly, public health

In summary, during all course of Doha negotiation, developing countries invocation of the right to health in their draft Doha Declaration is the clear example

of a human rights approach having impacts on international trade law obligations

The Doha declaration officially acknowledges the ―right to protect public health‖

1.4.4 Is Doha declaration binding?

Doha declaration is clearly a Ministerial decision in context of Article IX.1

of the Marrakesh agreement establishing the WTO It states the purpose of the TRIPS Agreement in the area of public health, interprets the TRIPS Agreement with regard to some important aspects also, instructs the Council for TRIPS to take action, and decides on the implementation of the transitional provisions for least developing countries.54

However, whether is it an authoritative interpretation in term of Article IX.255 of the Marrakesh Agreement Establishing the WTO which refers to Ministerial decision on interpretation of a WTO multilateral agreement to or just a normal Ministerial decision in term of Article IX.1?

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

agenda on TRIPs and Public health was launched by the proposal of developing countries but recommendation by the TRIPs Council In addition, there is no reference in Doha declaration suggesting that the Declaration would only clarify provisions of the TRIPS Agreement Specially, this declaration even refused to take proposed suggestions on such a clarification of developing countries

and developed countries; for example, ―reaffirming the context of the TRIPS Agreement and certain provisions‖56 and ―has clarified Member's views of the flexibility provided under the Agreement‖57 For these reasons, Doha declaration on TRIPs and public health could not be recognized as an authoritative interpretation in term of Article IX.2 of the Marrakesh Agreement Establishing the WTO

WTO agreements, specifically Article XX GATT 1994 and TRIPs do not mention explicitly ―Human rights‖ term However, Doha agenda towards TRIPs and Public health somehow shows an optimistic and prosperous movement of WTO towards human rights when Human rights concerns-Public health was officially dedicated in such a Ministerial conference of WTO In the light of Article X.158 of the Marrakesh agreement providing for proposal to amend the provisions of the Multilateral Trade Agreements in Annex 1, it need acceptance by consensus which would be unattainable seeing as developed countries majorly possess Patented products or processes Article X.359 of the Marrakesh agreement on the other hand

56 Proposal by the African Group (Bangladesh, Barbados, Bolivia, Brazil, Cuba, Dominican Republic, Ecuador, Haiti, Honduras, India, Indonesia, Jamaica, Pakistan, Paraguay, Philippines, Peru, Sri Lanka, Thailand and Venezuela) (4 October 2001), IP/C/W/312, WT/GC/W/450

a longer period, for a period of 90 days after the proposal has been tabled formally at the Ministerial Conference any decision by the Ministerial Conference to submit the proposed amendment to the Members for acceptance shall be taken by consensus Unless the provisions of paragraphs 2, 5 or 6 apply, that decision shall specify whether the provisions of paragraphs 3 or 4 shall apply If consensus is reached, the Ministerial Conference shall forthwith submit the proposed amendment to the Members for acceptance.‖

59

Article X.3 Marrakesh agreement provides that: ―Amendments to provisions of this Agreement, or of the Multilateral Trade Agreements in Annexes 1A and 1C, other than those listed in paragraphs 2 and 6, of a nature that would alter the rights and obligations of the Members, shall take effect for the Members that have

provides a much more straightforward measure to do this That is amendments to provisions shall take effect for the Members that have accepted them upon acceptance by two thirds of the Members and thereafter for each other Member upon acceptance by it No one could predict exactly whenever this will happen but this does not mean that it will be impossible to adopt amended provisions

This does not mean that Doha declaration on TRIPs and Public health is no longer taken into consideration by Dispute Settlement Bodies when interpreting TRIPs Instead, the other legal ground for this is that the Declaration can be

regarded as a ―subsequent agreement‖ between the parties regarding the

interpretation of a treaty or the application of its provisions, under Article 31.3 (a)

of the Vienna Convention on the Law of the Treaties.60 Paragraph 4 of Doha declaration obviously mentions that:

―We agree that the TRIPS Agreement does not and should not prevent Members from taking measures to protect public health Accordingly, while reiterating our commitment to the TRIPS Agreement, we affirm that the Agreement can and should be interpreted and implemented in

a manner supportive of WTO Members' right to protect public health and, in particular, to promote access to medicines for all.‖

By doing so, Doha declaration gives instruction to Panel and Appellate Body for interpreting TRIPs provisions in regard to public health and has developed a particular principle for interpreting human rights concerns in TRIPs

Developing countries should utilize such approach of Doha declaration for,

in addition to enjoying the full extent possible of the right to protect public health and promote access to medicines, preparing well their arguments in case they are parties of dispute related to public health

In conclusion, the ―right to protect public health‖ must be given effect and

taken into account in the dispute settlement proceedings related to TRIPs agreement

accepted them upon acceptance by two thirds of the Members and thereafter for each other Member upon acceptance by it The Ministerial Conference may decide by a three-fourths majority of the Members that any amendment made effective under this paragraph is of such a nature that any Member which has not accepted

it within a period specified by the Ministerial Conference in each case shall be free to withdraw from the WTO or to remain a Member with the consent of the Ministerial Conference.‖

60 Carlos M.Correa (2002), supra note 54, p.45

on the ground that Doha Declaration is a ―subsequent agreement‖ under Article 31

Section 3.a of the Vienna Convention on the Law of Treaties regarding the interpretation of the TRIPS agreement Under the circumstances that it is difficult to obtain a Ministerial agreement on interpreting WTO multilateral trade agreement because adopting an interpretation shall be taken by a three-fourths majority of the Members61, Doha declaration could be considered as the bridge for promoting the interpretation WTO agreement in the context of human rights

of the UN human right law, human rights cover both rights and obligations, rights

of human being and obligations of the states and other individuals

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

WTO‘s approach towards human rights has gradually got closer by time from negotiation rounds before Uruguay to Doha agenda Particularly, Doha negotiations and its declaration could be considered as prominent landmark of the WTO seeing as such declaration is able to be referred as human rights interpretive

tools in term of a ―subsequent agreement‖ under Article 31 Section 3.a of the

Vienna Convention on the Law of Treaties Besides, human rights are also implicitly mentioned in WTO agreement in form of so-called-human-rights-terminologies which are related to the right to life and the right to health

61 Article IX.2 of Marrakesh agreement establishing the WTO

CHAPTER 2: INTERPRETATION OF THE GATT’S

ARTICLE XX AND TRIPS IN THE CONTEXT OF HUMAN

RIGHTS

As for the title of my thesis-Interpretation of WTO Agreements in the context of Human Rights: A case study of Article XX GATT 1994 And TRIPs Agreement‖, this chapter will go into the interpreting competence of the Dispute Settlement Bodies towards so-called-human-rights-provisions in WTO agreements, specifically

in Article XX GATT 1994 and TRIPs Agreement, and interpretation of these two legal instrument in the context of human rights in turn

2.1 Grounds for the interpretation of Article XX GATT 1994 and TRIPs

agreement in the context of “Human rights”

In this part, author intents to find out the answer of the question that whether WTO, more precisely, the Panel and Appellate Body, have the competence to take human rights into their consideration when interpreting some human-rights-related-provisions, for instance Article XX GATT 1994 and TRIPs Then, if any, to what extent they could interpret these provisions

It should be noted that human rights approach in the interpretation of Article

XX GATT 1994 and TRIPs is not synonymous with taking rights of human being when interpreting these provisions As I have mentioned in Chapter 1, human rights are comprised of both rights and obligations, rights of human being and obligation

of states Human rights approach in the interpretation of Article XX GATT 1994 and TRIPs should be understood as taking obligation of the member states to respect, to protect and to fulfill human rights into consideration when interpreting

such provisions This conclusion is derived from three causes: First, only WTO

member countries could take part in WTO Dispute Settlement Proceedings as the

character of this mechanism‘s confidential feature; second,

so-called-human-rights-provisions in Article XX GATT 1994 and TRIPs are defenses for the breach of

WTO members‘ obligations which will be explained further in next part-WTO bodies‘ interpreting competence in context of Human rights; last but not least,

ratifying WTO agreements means that states partly lose their autonomy towards trade development policy and these provisions aim to give a balance between trade liberalization and non-trade concerns for WTO members

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

The first one is that such bodies are not authorized to interpret provisions in relation to human rights One typical representative of the scholars supporting for this perspective is James Harrison62 Below come up with his three main reasons strongly corroborating for this first school of thought

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

Secondly, the jurisdiction of Panel and Appellate Body is restricted to claims

made under WTO agreements, provided in Article 1.1 of DSU64 Nowhere in all WTO agreements has clearly mentioned ―Human rights‖ as an official term65

; therefore, no claims can be brought to WTO dispute settlement procedures alleging breaches of international law which are not based on provisions of WTO agreements.66

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

DSB cannot add to or diminish the rights and obligations provided in the covered agreements So, how can DSBs take into account norms and standards from international human rights law without adding to or diminishing WTO obligations?67 In addition to this, there are no treaties having identical membership68; thus, it is impossible to apply Human rights international law which binds all WTO members

By contrast, majority of the scholars supporting for the remaining school of thought have asserted that examining the above arguments in more meticulous detail would entail the opposite outcome This stems from the fact that arguments of the advocates supporting for the dispute settlement bodies‘ competence of interpretation over Human rights norms and standards are much more persuasive that those of the defenders Subsequently, the representatives of the second school

of thought have presented their own three justifications in response to the defenders‘ presentation so as to make their arguments overshadow the remainder‘s ones

First of all, although WTO is not a human rights organization and its

fundamental aim is to obtain commercial welfares by reducing obstacles to international trade, this does not mean that WTO concentrates on trade concerns only and endeavors to attain commercial welfares by all means, even ignoring other concerns In recent years, ―non-trade concerns‖ terminology has been mentioned a lot in ―WTO speak‖ and numerous studies on WTO law ―Non-trade concerns‖ is similar to multi-functionality.69 The glossary of the WTO subsequently specifies this term to food security and environmental protection under the preamble of the Agriculture Agreement as examples Moreover, this term was cited by members as rural development and employment, together with poverty alleviation.70 Thereby,

―non-trade concerns‖ should be interpreted in a broad understanding as other concerns except for trade concerns Not only trade-concerns but also non-trade concerns are therefore values attracting attentions of the WTO Particularly, the Preamble of Marrakesh agreement establishing the WTO71 that relations between WTO members in the field of trade and economic endeavor should be conducted

with a view to raising standards of living, ensuring full employment In addition to that, the objective of sustainable development, seeking both to protect and preserve the environment is also mentioned as an implicit of the right to life For this reason,

human rights concern is one of the crucial values that WTO has pursued

Secondly, while WTO dispute settlement proceedings are restricted to ruling

on claims that are based on WTO agreements, WTO dispute settlement bodies including Panel and Appellate Body still can make decisions on trade matters specified in the WTO agreements that also involve non-trade issues related to human rights, since this is part of their ―implied‖ or ―incidental‖ mandate in order to settle disputes.72 That is to say, Claimants cannot bring cases on the basis of a human rights claim given Article 1.1 of DSU because there is no citation of ―human rights‖ term in WTO agreements Nevertheless, human rights would be valid as part

of defenses to claims of breach of a WTO agreements.73 There are specific Articles explicitly mentioning non-trade issues related to human rights, so defendants of a WTO case can refer human rights issue in such a case to WTO dispute settlement

proceedings Those issues related to human rights are Public morals under Article 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

71 The Parties to this Agreement, Recognizing that their relations in the field of trade and economic endeavor

should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, and expanding the production of and trade in goods and services, while allowing for the optimal use of the world‘s resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different levels of economic development

72 Harrison (2007), supra note 64, p.188

73 Id, p.188

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

Finally, Gabrielle Marceuau74, a prominent commentator, argued that Panels and Appellate Body would not add to or diminish rights and obligations under the covered agreements when interpreting WTO rules to be consistent with human rights obligations as far as this is possible within WTO forum In more detail, it is within WTO forum if human rights concern is raised as a defense by defendant as author have just mentioned above Besides, the inherent flexibility of a number of WTO provisions means that such an approach will most often avoid conflicts between human rights and international trade law.75 Therefore, according to the second school of thought, it is within the jurisdiction of WTO dispute settlement Panels and Appellate Body to rule on human rights issues which are raised as defenses by countries accused of breaching their WTO obligations.76

In my perspective, the arguments of the second school of thought far outweigh those of the first one by their persuasive strength Furthermore, there have

been a numbers of disputes raised by WTO member that are involved request for an interpretation of WTO obligations taking into account other non-trade concerns

http://graduateinstitute.ch/Jahia/site/iheid/cache/bypass/teaching/faculty/visiting_faculty?alphafilter=ABCDE FGHIJKLMNOPQRSTUVWXYZ&personneId=bc43c9c364457e9b96aee7135547e9eb , last visited on 15thJuly 2013

75 Id, p,190

76 Harrison (2007), supra note 64, p.189

such as public health and environmental issues77 and rulings were also adopted by

Panels and Appellate Body Thailand-Restrictions on Importation of and Internal Taxes on Cigarettes (WT/DS10) and EC-Measures affecting Asbestos and Asbestos- containing products (WT/DS135) could be taken as particularly salient examples of this More specifically, in EC- Asbestos, Canada brought a case against the EC in

respect of measures imposed by France, prohibiting of asbestos and products containing asbestos.78 The Panel in this case concluded that the presence of

chrysotile asbestos fibers in cement-based products poses ―an undeniable public

health risk‖.79 Later, the Appellate Body did agree with this conclusion of the Panel.80

From all these above analyses, taking the initial argument to the final conclusion, Panels and Appellate Body would obtain an authority of interpretation issues regarding to human rights in accordance with the WTO agreements in the light of defenses by countries which are accused of breaching their WTO obligations

2.1.2 Limitation for WTO Dispute Settlement Bodies in interpreting issues related to human rights

Albeit generally convinced of the WTO bodies‘ interpreting authority, it is problematic in itself that to what extend Panels and Appellate Body attain authoritative interpretation over human rights issues The following methodology of taking assessment of the current legislation of WTO‘s interpreting authority would entail in a particular and apparent result

77 Id, p.191

78 European Communities- Measures Affecting Asbestos and Products Containing Asbestos, available at

http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds135_e.htm , last visited on 19th June 2013

The primary and official provision of the dispute settlement bodies interpreting authority is Article 3.2 (DSU) which mandates an approach of

interpretation that WTO agreements need to be interpreted ―in accordance with customary rules of interpretation of public international law‖.81

It should be noted that WTO law is public law because it follows the patterns

of public international law.82 Accordingly, regulation of trade law is at the international level, involves governmental rule-making, States are the performers who formulate international trade law rules and who are bound by international trade law obligations As a result, the DSU requires that interpretation of WTO agreements should be implemented in light of customary rules of interpretation of public international law

Needless to say, Vienna convention on the Law of Treaties (1969) governs the authoritative interpretative methodology of public international law.83Therefore, interpreting WTO agreements shall be based on Vienna convention In regard to the relation between Article 3.2 of DSU and Article 31 of Vienna

convention specifying General rule of interpretation, Appellate Body in US — Gasoline stated that:

―The general rule of interpretation [as set out in Article 31(1) of the Vienna Convention on the Law of Treaties] has attained the status of a rule of customary or general international law As such, it forms part of the

―customary rules of interpretation of public international law‖ which the Appellate Body has been directed, by Article 3(2) of the DSU,…‖ 84

To sum up, Panel and Appellate Body when interpreting issues related to human rights under WTO agreements shall take into consideration sources of

in the covered agreements

82 James Harrison (2007), supra note 64, p.34-35

83

Article 1 of the Vienna convention provides that ―The present Convention applies to treaties between States.‖

84 US — Gasoline (WT/DS2/AB/R), p 17

interpretation provided in Article 31 and Article 32 of the Vienna Convention on the Law of Treaties

Article 31 of the Vienna Convention85 accordingly refers to sources which

shall be taken into account during the course of interpretation At first, Article 31.1mandates that a Treaty ―shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.‖ In addition to ―context of the treaty‖, the

preamble and annexes shall be included.86 Besides, any subsequent practice in the

application of the treaty which establishes the agreement of the parties regarding its interpretation and any subsequent agreement between the parties altogether must be taken into consideration also.87 Hence, the case law of the WTO will be an important interpretative tool, as well as Ministerial Declaration such as those on labor standards and public health.88

And lastly, the preparatory work of the treaty and the circumstances of its

conclusion which are regarded as supplementary means of interpretation under Article 3289 of the Vienna convention will be prevail in case the interpretative

85 Article 31provides that:

General rule of interpretation

1 A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms

of the treaty in their context and in the light of its object and purpose

2 The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

(a) any agreement relating to the treaty which was made between all the parties in connection with the

conclusion of the treaty;

(b) any instrument which was made by one or more parties in connection with the conclusion of the treaty

and accepted by the other parties as an instrument related to the treaty

3 There shall be taken into account, together with the context:

(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application

of its provisions;

(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties

regarding its interpretation;

(c) any relevant rules of international law applicable in the relations between the parties

4 A special meaning shall be given to a term if it is established that the parties so intended

86

Article 31.2 of the Vienna convention

87 Article 31.3 of the Vienna convention

88 James Harrison (2007), supra 64, p.200

89 Article 32 provides over the supplementary means of interpretation that:

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of Article 31, or to determine the meaning when the interpretation according to Article 31:

process under Article 31 leaves the meaning ambiguous or obscure or leads to a result which is manifestly absurd or unreasonable There are a great variety of

interpretative tools; of those, ―any relevant rules of international law applicable in the relations between the parties‖ under Article 31.3.c is the most direct relevance

with regard to international human right treaties.90

In general, an examination of to what extend human rights norms and standards can be taken into consideration in interpreting the meaning of WTO provisions must be implemented through the ordinary meaning of the terms, WTO case law and other relevant instruments, and supplementary means of interpretation Determining the scale of Article 31.3.c which appears to be the most directly applicable provision in regard to international human rights law would be however the target of studying the WTO interpreting competence in context of Human rights

Article 31.3.c provides that ―there shall be taken into account, together with the context… any relevant rules of international law applicable in the relations between the parties‖ International human rights norms and standard which are

found to be applicable law under Article 31.3.c would be thereby taken into account

so as to determining the overall scope of the particular WTO provisions referring to human rights But it has sparked a lot of controversies over the accurate meaning of

the phrase ―between the parties‖ Some scholars argue as if it is general truth that this phrase means rules of international human right law which are valid to parties

to the case only that while others hold a confidence that those are applicable to the whole WTO membership.91

Actually, there has been a case in earlier time which directly referred to Article 31.3.c.92 In the EC-Biotech, the United States sued the EC in concern to

certain measures taken by the EC and its member States affecting imports of

(a) leaves the meaning ambiguous or obscure; or

(b) leads to a result which is manifestly absurd or unreasonable

90

Id, p.200

91 James Harrison (2007), supra 64, p.201

92 Id, p.201

agricultural and food imports from the United States.93 When examining the relevance of other rules of international law to the interpretation of the WTO agreements at issue in this dispute, the panel found that rules of international law are applicable under Article 31.3.c if they all WTO member States.94 Such a decision has not been reviewed by the Appellate Body for the reason that EC did

not appeal the EC-Biotech Panel‘s ruling

This interpretation of the Panel in the EC-Biotech has been disapproved by

number of scholars; of those, Koskenniemi95 criticized this approach of the Panel in his report on Fragmentation of international Law.96 Namely, it is unlikely of a precise sameness in the membership of most important multilateral conventions Especially, the more the membership of a multilateral treaty such as the WTO covered agreements expanded, the less likely those agreements have a chance to have identical membership with the rest of international law Therefore, WTO law,

as interpreted by the EC-Biotech Panel, is almost impossible to take into account

other rules of international law in general and international human rights law in particular Moreover, this approach ultimately results in an inappropriately restrictive effect in two situations:

―(a) it could preclude reference to treaties which have very wide acceptance in the international community (including by the disputing States) but which are nevertheless not universally ratified and which are not accepted in all respects as stating customary international law (such as UNCLOS 97 ); (b) It could also preclude reference to treaties which represent the most important elaboration of the content of international law on a specialist subject matter, on the basis that they

http://www.yatedo.com/p/Martti+Koskenniemi/famous/846a622232f7a6be580ad30568cec1bc , last visited on