WTO Deference to National Health Policy: Toward an Interpretive Principle

Abstract:     
Critics of the WTO often cast it as an obstacle to human health, particularly in the poorest nations. Not only does this portrayal overlook potential synergies between trade and health; it all but ignores recent developments within the WTO that have affirmed member states' power to promote health. The WTO's framers paid little heed to health policy. Over the past few years, however, politics and the AIDS pandemic have pushed health to center stage as a trade issue. This article reviews the WTO's response. It considers the WTO's treatment of national health policies in several contexts - GATT Art. XX(b) (permitting health regulations that restrict trade), the SPS Agreement (governing food safety regulation), and the TRIPS Agreement (limiting manufacture and sale of patent-protected medicines). It identifies an emerging pattern of heightened deference to national authority when member states' health policies conflict with other values protected by trade agreements. The WTO system, I argue, has come to treat protection for health as a de facto interpretive principle when disputes arise over members' treaty obligations. But rather than imposing a one-size-fits-all conception of rational health policy, WTO decision-makers have preferred the path of deference to members' varied policy choices. This approach sensibly accommodates the psychology of health politics, differences in culture and resources among member states, and hopes for recognition of health as a value in international law.

Accepted Paper Series