Living in the 21st century in a world that continuously becomes increasingly integrated with more and more states interact with each other and tend to depend their existence on others as the economic life of every state is connected closely to the other due to the international economic system that has been established. This has lead to a new world system where it becomes less and less possible for different policy areas to be handled independently of each other.
The WHO and WTO are part of this phenomenon. At first sight these organisations seem totally different. However, in the past few years the linkage between those two has been the focus of much debate and it has been shown that those two policy areas have much common ground not to mention that trade and health policymakers can be benefit from a good and closer cooperation.
In the words of Mr. Miguel Rodríguez Mendoza, Deputy Director-General and the principal coordinator for the WTO “WTO Agreements are sensitive to health issues. In fact, health concerns can take precedence over trade issues. If necessary, governments may put aside WTO commitments in order to protect human life. And, according to WTO jurisprudence, human health has been recognized as being 'important in the highest degree.”
This study aims to explain that countries have the right to take measures to restrict imports or exports of products when this is necessary to protect the health of humans, animals or plants. What happens when liberalizing services, retain the right to regulate in order to meet national policy objectives, in areas such as health.
World Trade Organisation (WTO) and public health definitions
Before trying to find the common ground and the interdependence between those two different policy areas it is necessary to define them, so that the analysis will be more specific and understandable.
To begin with, the World Trade Organisation (short WTO) is an organisation that intends to supervise and liberalize international trade. The WTO officially commenced on 1 January 1995 under the Marrakech Agreement (15.04.1994), replacing the General Agreement on Tariffs and Trade (GATT), which commenced in 1948. The WTO deals with the regulation of trade between participating countries by providing a framework for negotiating and formalizing trade agreements and a dispute resolution process aimed at enforcing participants' adherence to WTO agreements, which are signed by representatives of member governments and ratified by their parliaments. Most of the issues that the WTO focuses on derive from previous trade negotiations, especially from the Uruguay Round (1986–1994). The organisation is attempting to complete negotiations on the Doha Development Round, which was launched in 2001 with an explicit focus on addressing the needs of developing countries. The WTO is not a specialized organisation of the system of the United Nations (UN) and has 160 members and 24 observer governments. The member governments make all decisions, and the rules are the outcome of negotiations among members. Secondly, the public health is "the science and art of preventing disease, prolonging life and promoting health through the organized efforts and informed choices of society, organizations, public and private, communities and individuals." It is concerned with threats to health based on population health analysis. The dimensions of health can encompass "a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity", as defined by the United Nations World Health Organization (WHO). Public health incorporates the interdisciplinary approaches of epidemiology, biostatistics, health services, health economics, public policy, and other important subfields. The focus of public health intervention is to improve health and quality of life through the prevention and treatment of disease and other physical and mental health conditions, through surveillance of cases and health indicators, and through the promotion of healthy behaviors. Modern public health practice requires multidisciplinary teams of public health workers and professionals.
Today’s multilateral trading system, with a lot of different nations cooperating with each other and affecting each other life's has a lot to contribute to the public health and therefore to increase the global welfare.
The WTO Agreements relevant to health The two organisations, the World Trade Organisation and the World Health Organisation are important partners in this effort with the WTO already having agreements related to health and health policies. The most important of these agreements namely are: the Agreements on Technical Barriers to Trade (TBT), the Sanitary and Phytosanitary Measures (SPS), the Trade-Related Intellectual Property Rights (TRIPS), and the Trade in Services (GATS). Each of them contain articles that have to do with health and more specific with public health issues and under these agreements, health is considered a legitimate objective for restricting trade. First of all, the agreement on Technical Barriers to Trade (TBT) was first signed in the Round of Tokyo of multilateral negotiations from 1973 until 1979 and only 24 countries adhered. Due to the fact that only 24 signed the agreement the new TBT agreement came into force in 1995 with the WTO and was binding on all WTO members. The most important principle of this agreement is the non-discrimination, which means that if a member applies certain requirements to, imported products, it has to apply the same requirements to like domestic products. All the members have the right to restrict trade for «legitimate objectives», in other words the TBT agreement allows the members to obstruct trade for legitimate reasons but its principle requires that such measures do not unnecessarily restrict trade. Protection of human, animal, plant and environmental health are among the legitimate objectives for which product requirements may be developed. Of all TBT regulations notified to the WTO in 2000, the largest single group (254 notifications, out of the total of 725 that were received) had human health or safety as their objective. Lastly, when it comes to the use of international health standards although the TBT agreement strongly encourages them,the members have the opportunity to depart from them if they consider that their application would be ineffective or inappropriate for the fulfilment of certain legitimate objectives. Secondly, the Sanitary and Phytosanitary Measures (SPS) agreement was linked to the Uruguay Round negotiations on the Agreement on Agriculture of the General Agreement on Tariffs and Trade (GATT) and entered into force in 1995 at the same time with the WTO’s establishment. In seeking to reduce agricultural tariffs and subsidies, some Members were concerned that countries might turn to the use of non-tariff barriers to protect domestic agricultural sectors. Moreover it could be tempting to use human, animal or plant health as an excuse to restrict trade. The SPS agreement includes a lot of specific rules that have to do with the restriction of trade just to ensure the safety of food, and the protection of all human beings and the plant and animal life. When it comes to health this agreement has two basic aims which are : a) the recognizability of the sovereign right that members have to determine the level of health protection they deem as appropriate and b) to ensure that a sanitary or phytosanitary requirement does not represent a scientifically unjustifiable restriction on international trade. In accordance to the ANNEX A of the SPS Agreement paragraph 1. : Sanitary or phytosanitary measure — Any measure applied: (a) to protect animal or plant life or health within the territory of the Member from risks arising from the entry, establishment or spread of pests, diseases, disease-carrying organisms or disease-causing organisms; (b) to protect human or animal life or health within the territory of the Member from risks arising from additives, contaminants, toxins or disease-causing organisms in foods, beverages or feedstuffs; (c) to protect human life or health within the territory of the Member from risks arising from diseases carried by animals, plants or products thereof, or from the entry, establishment or spread of pests; or (d) to prevent or limit other damage within the territory of the Member from the entry, establishment or spread of pests. Sanitary or phytosanitary measures include all relevant laws, decrees, regulations, requirements and procedures including, inter alia, end product criteria; processes and production methods; testing, inspection, certification and approval procedures; quarantine treatments including relevant requirements associated with the transport of animals or plants, or with the materials necessary for their survival during transport; provisions on relevant statistical methods, sampling procedures and methods of risk assessment; and packaging and labelling requirements directly related to food safety. Continuing with the third agreement, the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement was negotiated at the end of the Uruguay Round in 1994 and establishes minimum standards for protecting and enforcing intellectual property rights. The Principles of the TRIPS agreement that are relevant to public health are set out in Article 8 paragraph 1 which clearly says: «Members may,in formulating or amending their laws and regulations,adopt measures necessary to protect public health and nutrition,and to promote the public interest in sectors of vital importance to their socio-economic and technological development,provided that such measures are consistent with the provisions of the Agreement». Three different intellectual property areas from this agreement are relevant to health and these are : patents, trademarks including service marks,and lastly undisclosed informations. One of the purposes of this agreement is for example to provide security for more effective international cooperation against counterfeiting which includes also international trade in counterfeit goods such as drugs . Another one purpose is the patent protection for pharmaceutical products, which from a social and public health view is very important due to the fact that new drugs and vaccines made to treat and prevent diseases are generated, and the incentives that are being provided by the patent system do effectively promote it. The patent system provides for, on the one hand, exclusive rights granted to inventors of new drugs, and, on the other hand, the requirement that for a new drug to benefit from such rights it must be new, involve an inventive step, be industrially applicable and be fully disclosed, and further that after a term of protection the invention will fall into the public domain and become free and useable by all. Lastly, the TRIPS Agreement contains several other provisions enabling governments to implement their intellectual property regimes in a manner which takes account of immediate and longer-term public health considerations. And last the General Agreement on Trade in Services (GATS) which was a result of the negotiations in the Uruguay Round entered into force in 1995. The treaty was created to extend the multilateral trading system to service sector. The most important principle of the WTO is the one of the Most Favourite Nation (MFN) and it is being applied to GATS agreement. GATS has been designed to regulate measures affecting international trade in services, public services included and it also have enormous implications especially for health care services. Several health-related sectors and sub-sectors that may be liberalized under GATS include the inhibition of governments from shaping their own health care systems, the threatening of government-funded or -provided health services, the undermining of domestic regulation,the protection of public health, specialized and general health personnel, nursing services, ambulance services, and physiotherapeutic and paramedical services by medical and dental laboratories. GATS addresses issues that arise when a nation opens its borders to services provided by citizens of another country. Under the agreement types of traded services are delineated as four different modes. For example Mode 1 includes Cross-Borders Supply which means provision of diagnosis or treatment planning services such as telemedicine; outsourcing of medical records transcription; audio, visual and data communications; consultancies; and web conferences. Mode 2 has to do with Consumption Abroad which is the opportunity a patient has to enter another country seeking for health care, medical tourism or studying a health profession abroad. Moving on Mode 3 is about the Foreign Commercial Presence where a commercial organization establishes a presence in a country other than its home country or foreign investors invest in a local entity (such as a hospital or health insurance company) or in health-related products (such as insecticide-treated bed nets). And last Mode 4 the Movement of Natural Persons which relates to the opportunity that health professionals have to move from one country to another to work there for the health system. To sum up, it is obvious that every main agreement of the WTO includes Articles that are relevant to public health. It is beyond any doubt that there is an effort towards a coherence between trade and health policy so that international trade and trade rules maximize health benefits and minimize health risks, especially for poor and vulnerable populations. The focus is to strengthen capacities in the ministries of health to best enable them to work effectively with their colleagues in the ministries of trade, commerce and finance in efforts to shape and manage the trade policy environment for health.
These legitimate objectives include the protection of human health or safety,the protection of animal or plant life or health , the protection of the environment,national security interests, and the prevention of deceptive practices.
 Whole article taken from the official website of the WTO home-trade topics-sps-text of agreement: http://www.wto.org/english/tratop_e/sps_e/spsagr_e.htm
 Find all the agreement’s text and articles here : http://www.wto.org/english/tratop_e/trips_e/t_agm2_e.htm
 Counterfeit drugs, often contain few or no active ingredients and may actually be harmful to health, are a major problem in many developing countries, notably in sub-Saharan Africa and they are recognized as a problem undermining the effectiveness of drug therapy.
 A most favoured nation clause (also called a most favoured customer clause or most favoured licensee clause) is a contract provision in which a seller (or licensor) agrees to give the buyer (or licensee) the best terms it makes available to any other buyer (or licensee). In some contexts, the use of such clauses may become commonplace.