Global Trade and Health: Controversy, Coherence, and Consilience

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Global Trade and HealthControversy, Coherence,
and Consilience

• David P. Fidler
• James Louis Calamaras Professor of Law
• Indiana University
• Maurer School of Law
• Presentation for CDC/PHLP
• July 27, 2009

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Presentation Overview

• Analyze the trade-health relationship to
  determine how much controversy and how much
  consilience exists between these two policy
  realms
• Consilience integration of concepts, interests,
  and principles from different disciplines,
  especially when informing a comprehensive theory,
  strategy, or approach
• Argue that this relationship has undergone a
  shift over the past 15 years from controversy
  about the substantive content of trade rules to a
  search for policy coherence and normative
  consilience

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Shift in Trade-Health Debate
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Content ControversiesThe Policy Space
DebateTrade in Goods

• GATT hostile to trade-restricting health
  measures through application of Article XX
• ThailandCigarettes
• USGasoline
• ECAsbestos
• SPS Agreement tougher requirements prevent
  implementation of health protective measures ?
  ECHormones as lightening rod
• TBT Agreement rules on technical regulations and
  standards could limit use of health interventions
  (e.g., product safety, labeling)

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Content ControversiesThe Policy Space
DebateTrade in Goods

• Trade in tobacco, alcohol, and obesogenic
  products
• Use of trade agreements to force open foreign
  markets
• Controversies about trade in tobacco products
  during FCTC negotiations
• Commercial interests opposing global strategies
  to fight obesity and obesity-related diseases

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Content ControversiesThe Policy Space
DebateTrade in Services

• General Agreement on Trade in Services (GATS)
  first multilateral agreement promoting
  liberalization of trade in services
• Policy space controversies with GATS-zilla
• GATS will force privatization of health services
• GATS will force privatization of services
  important to social determinants of health, such
  as water
• GATS restricts the ability of WTO members to
  regulate services
• GATS sacrifices sovereignty to corporate interests

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Content ControversiesThe Policy Space
DebateIntellectual Property

• TRIPS first time multilateral trading system
  directly incorporated rules to protect
  intellectual property rights
• TRIPS controversies
• Requirement to grant and protect pharmaceutical
  patents
• Abuse of TRIPS to bully developing countries not
  to engage in parallel importing and compulsory
  licensing (e.g., antiretrovirals)
• Hypocrisy of U.S. pressure against compulsory
  licensing revealed when U.S. threatened to issue
  a CL for patent-protected cipro after anthrax
  attacks
• Accusations of developed countries pressuring
  developing countries not to implement fully TRIPS
  flexibilities
• Pursuit of TRIPS provisions by developed
  countries in preferential trade agreements (PTAs)

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Content ControversiesThe Policy Space
DebateGovernance

• Controversies over the content of WTO rules and
  their impact on healths policy space connected
  to concerns about governance of the trade-health
  relationship
• WTO dominated the relationship
• WTO power centralized, formal, and legally
  intensive and demanding regime created with
  little to no health input
• Global health governance fragmented, diffuse,
  uncoordinated, and legally thin and undemanding
• WTO dispute settlement compulsory,
  comprehensive, and coercive mechanism that would
  interpret WTO rules affecting health without
  health involvement
• Trade liberalization negotiations for more
  liberalization in trade for goods and services
  impervious to effect health sector participation

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WHO Efforts on Trade and Health How Do WTO
Rules Affect Healths Policy Space?

• From a health perspective, analyze whether and
  how WTO agreements affect the policy space of
  health ministries and policy makers
• Examples
• Joint WHO/WTO publication on trade and health
  (2002 the Bluebook)
• Detailed legal analyses and reviews of GATS, SPS
  and TBT Agreements, and TRIPS
• More frequent interactions between WHO and WTO
  personnel on specific issues

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The Lancet Series on Trade and HealthJanuary 2009

• Managing the pursuit of health and wealth the
  key challenges
• Bridging the divide global governance of trade
  and health
• Trade and social determinants of health
• Trade in health-related services
• Trade, TRIPS, and pharmaceuticals
• Trade and health an agenda for action

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The Lancet Series A Different Critique

• Critical analysis in the Lancet series did not
  reflect the policy space controversies about
  WTO rules, with perhaps the exception of TRIPS
• Examples
• The series contained little description or
  analysis of the substantive content of WTO rules
• Apart from one or two mentions, the series
  contained no description or analysis of the
  controversial WTO trade-health cases
• Virtually nothing about the SPS Agreement, and
  nothing on the TBT Agreement
• GATS article focused on problems related to
  empirical challenges of determining the
  magnitude, patterns, and main contributors to
  trade in health-related services
• Agenda for action contains no items that call
  for changes to the substantive rules of any WTO
  agreement, including TRIPS

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What Happened? From Policy Space to Policy
Coherence

• Thesis After more focused analysis, policy
  space controversies diminished because the trade
  rules did not present the threats alleged (with
  the exception of IPRs) focus shifted to
  achieving policy coherence within and between
  countries on trade and health
• Evidence
• Detailed legal reviews of WTO agreements narrowed
  the policy space concerns
• WTOs dispute settlement mechanism operated in
  trade-health disputes in ways sensitive to
  health interests
• WHOs development of the IHR 2005 reflected
  trade-health principles very similar to WTO rules

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Health-Driven Analyses of WTO Agreements

• General WTO agreements did not pose as much of a
  threat to health policy as many argued in the
  years after WTOs creation (with the exception of
  IPRs)
• Examples
• Food safety and the SPS Agreement more
  similarities than differences in trade and health
  approaches
• Technical barriers to trade and the TBT
  Agreement requirements do not pose obstacles to
  health-related trade measures
• Services and GATS general obligations (e.g.,
  MFN) not a problem for health specific
  commitments on market access and national
  treatment left up to each WTO member provision
  on domestic regulation is procedural not
  substantive
• Tobacco, alcohol, and obesogenic products WTO
  agreements left ample room for evidence-based
  health interventions that affect trade

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WTO Dispute Settlement and Trade-Health Cases

• General WTO decisions involving
  trade-restricting health measures proved
  sensitive to health concerns
• GATT
• USGasoline protectionist discrimination not
  health protection making all gasoline meet
  higher standard would protect health better
• ECAsbestos frontload health analysis in
  application of anti-discrimination principles
  held that health is one of the most important
  values recognized by WTO members hailed as
  victory for health
• BrazilTyres the decision is no less than a
  slam dunk victory for Members environmental and
  health policies vis-a-vis trade
  disciplines.Schlomann, Bridges

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WTO Dispute Settlement and Trade-Health Cases

• SPS Agreement
• ECHormones interpretations of risk assessment
  and scientific evidence requirements preserved
  policy space for WTO members refused to hold
  that EC measure had no scientific support
• ECBiotech Products ruling based on procedural
  requirements of biotech product approval and
  stayed away from deciding whether biotech
  products posed any scientifically grounded threat
  to health

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Trade and Health in the IHR 2005

• WHOs development of the IHR 2005 contributed to
  lessening of health worries about content of
  trade rules
• IHR 2005 seeks to achieve health prevention,
  protection, and control while avoiding
  unnecessary interference with international trade
  and travel
• IHR 2005 is radically more health-driven by
  expanding scope of the Regulations, the reporting
  duties, and the obligations to develop
  surveillance and response capacities
• In this health-driven regime, approach to
  trade-restricting health measures mirrored what
  WTO has, that is, such measures must
• Have a scientific and public health basis
• Be supported by a risk assessment
• Be applied in a non-discriminatory manner
• Be the least trade restrictive measure possible
  to achieve the health objective sought

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WHO Efforts on Trade and Health Shift to Policy
Coherence Concerns

• WHOs work on trade and health shifts from the
  policy space debates to attempting to improve
  how trade and health ministries coordinate policy
• Shift from What cant we do? to What should we
  do, and how do we do it?
• Examples
• Strategies for WHO members to analyze better
  whether and how they want to engage in
  liberalization of health-related services (e.g.,
  try before you buy)
• Creation of trade and health diagnostic tool to
  help countries better coordinate trade and health
  policies
• Education and training missions in countries
  seeking to produce better policy coherence

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Policy Coherence, Policy Capacity Challenges

• Policy coherence agenda reflects
• Understanding that the policy space available to
  health under trade rules is, generally speaking,
  sufficient
• Concern that governments and IGOs lack the
  capacities to exploit the policy space most
  effectively for both trade and health
• Capacity challenges of policy coherence
• Personnel trade and health officials are
  unconnected because of a lack of awareness and
  training
• Institutions national ministries and IGOs
  reflect traditional policy silos that thwart
  coordination
• Processes governments and IGOs have lacked good
  interagency or intersectoral mechanisms to
  produce coherence across trade and health

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Lancet Series Agenda for Action Dominated by
Policy Coherence and Capacity Concerns

• Three pillars of the agenda for action
• Strengthening evidence on trade and health links
• Building trade and health engagement and capacity
• Asserting health goals in trade policy
• Evidence-based analysis ? capacity to understand,
  articulate, and engage ? better equilibrium
  between trade and health interests in policy
  formulation and outcomes
• Better exploitation of the policy space
  nationally and internationally to advance both
  trade and health interests

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From Coherence to Consilience? Common Interests,
Common Principles

• Common interests
• Trade trade does not flow as productively when
  health problems flare up and states apply
  irrational, unnecessary trade restrictions (e.g.,
  SARS, H1N1)
• Health
• Trade is a political and social determinant of
  health ? Health-related damage done by impact of
  global economic crisis on trade and other
  economic indicators
• Narrowly focusing on trade restrictions to
  protect health is not an effective public health
  strategy more comprehensive approaches are
  needed
• Trade in health-related services
• Tobacco, alcohol, and obesogenic products

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From Coherence to Consilience? Common Interests,
Common Principles

• Common principles development of set of shared,
  deeply grooved principles in the trade-health
  relationship (e.g., in WTO and IHR 2005)
• Health-related disciplines
• Trade-related disciplines
• Health-related disciplines
• Identify risk through assessment involving
  scientific evidence and public health principles
• Each country determines its own level of health
  protection
• Use evidence-based international standards to
  guide health measures (harmonization)
• Each country is able to be more health protective
  than international standards, provided such
  measures have a scientific and public health basis

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From Coherence to Consilience? Common Interests,
Common Principles

• Trade-related disciplines
• Trade-restricting health measures should not
  discriminate on the basis of the national origin
  of a product or service
• Trade-restricting health measures should be the
  least trade restrictive measures capable of
  achieving the health protection sought
• Possible less trade-restrictive alternative
  measures receive strict scrutiny because health
  is a value of the highest order
• States do not have to provide quantitative
  evidence to prove that the health measure
  selected will actually be effective

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Still Stuck between Content and Coherence The
IPR Problem

• Major exception to the shift from controversies
  about the substantive content of WTO rules
  towards policy coherence concerns is the still
  acrimonious problem of IPRs
• From controversy to controversy
• TRIPS and access to medicines
• Implementation of the Doha Declaration on TRIPS
  and Public Health
• Difficulties negotiating third-party CL (e.g.,
  TRIPS amendment)
• Use of TRIPS provisions in PTAs
• H5N1 virus sharing, access vaccines, and patents
• Controversy over stoppage and seizure by EC
  authorities of transhipments of generic
  pharmaceuticals, patents on which EC corporations
  own
• Concerns about the Anti-Counterfeiting Trade
  Agreement (ACTA) (stricter IP enforcement to
  address counterfeiting)

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Emerging Trade-Health Problems and Controversies
(1)

• Continued tensions concerning trade in tobacco,
  alcohol, and obesogenic products, which reflects
  weaker reciprocity and greater divergence of
  trade and health interests
• Divergent interests between human and animal
  health in terms of policy coherence (e.g., should
  OIE adopt IHR 2005-like rules?)
• Violations of trade-health rules (e.g., IHR 2005,
  SPS Agreement) during disease outbreaks and lack
  of adequate mechanisms to address such violations

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Emerging Trade-Health Problems and Controversies
(2)

• Private bodies and processes that implement
  higher food and product safety standards that
  exporters in developing countries have trouble
  meeting
• Domestic regulatory failures (melamine ? FDA in
  China)
• Food insecurity and impact of Doha Rounds need
  to achieve agreement on liberalizing trade in
  agriculture
• Stagnation and fragmentation of trade governance
  (e.g., stalled Doha Round and PTA proliferation)

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Conclusion

• Trade-health relationship has evolved and in a
  direction that has increased the profile of
  health in the world trading system
• Stages
• Policy space controversies about the substantive
  content of trade rules
• Policy coherence concerns about capacities
  needed to ensure coherence in policy between
  trade and health interests
• Limited consilience integration of concepts,
  interests, and principles from trade and health
  that form a stronger basis for policy
• No time for complacency because the next phase of
  this evolution might be heavily influenced by how
  the world trading system bounces back from the
  global economic crisis

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Contact Information

• David P. Fidler
• James Louis Calamaras Professor of Law
• Indiana University
• Maurer School of Law
• 211 S. Indiana Avenue
• Bloomington, IN 47405
• Tel [phone]
• Email dfidler_at_indiana.edu