INTERPRETATION OF WTO AGREEMENTS IN THE CONTEXT OF HUMAN RIGHTS a CASE STUDY OF ARTICLE XX GATT 1994 AND TRIPS AGREEMENT (2)

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 TRIPS AGREEMENT Student: Tran Thi Cam Thach Student Code: 0955050186 Class: CLC34 Supervisor: Ph.D Le Thi Anh Nguyet HO CHI MINH CITY 2013 HO CHI MINH CITY UNIVERSITY OF LAW MANAGING BOARD OF SPECIAL TRAINING PROGRAMS  - BACHELOR THESIS REGULAR TRAINING COURSE 34TH (ACADEMIC YEAR 2009 - 2013) 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 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 CHAPTER ONE: THE RELATIONSHIP BETWEEN HUMAN RIGHTS AND THE WTO 1.1 Human rights terminology 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 EC European Community 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 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 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 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 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 wellknown 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 Research methodology Pursuant to the purposes as mentioned above, this thesis use four methods: First, description method is used mainly in chapter 1, chapter and chapter 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 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 65 relevant provisions of the Canadian implementing legislation (in particular the Patent Act) in relation to its obligations under the TRIPs Agreement.210 The EC alleged that Canada‘s legislation is not compatible with its obligations under the TRIPS Agreement, because it does not provide for the full protection of patented pharmaceutical inventions for the entire duration of the term of protection envisaged by Articles 27.1, 28 and 33 of the TRIPS Agreement.211 Particularly, Under Canadian patent legislation, a third party may, without the consent of the patent holder, use a patented invention to carry out experiments and tests required (proof of safety and bio-equivalency) to obtain marketing approval of the copy of an innovative medicine before the expiration of the relevant patent in order to ensure market access immediately following the patent expiry; and manufacture and stockpile patented products for a period of up to six months before patent expiry for sale after expiry Accodingly, Canadian Patent Act provides that: ―Section 55.2(1): It is not an infringement of a patent for any person to make, construct, use or sell the patented invention solely for uses reasonably related to the development and submission of information required under any law of Canada, a province or a country other than Canada that regulates the manufacture, construction, use or sale of any product Section 55.2(2): It is not an infringement of a patent for any person who makes, constructs, uses or sells a patented invention in accordance with subsection (1) to make, construct or use the invention, during the applicable period provided for by the regulations, for the manufacture and storage of Articles intended for sale after the date on which the term of the patent expires.‖ Section 55.2(1) is the so-called regulatory review exception providing that potential competitors of a patent owner are permitted to use the patented invention, without the authorization of the patent owner during the term of the patent, for the 210 Canada - Patent Protection Of Pharmaceutical Products, Request for Consultations by the European Communities, WT/DS114/1, IP/D/11 G/L/221 12 January 1998, p.1 211 Dispute Settlement: Dispute Ds114, Canada — Patent Protection of Pharmaceutical Products, available at http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds114_e.htm, last visited on 3rd July 2013 66 purpose of obtaining government marketing approval, so that they will have regulatory permission to sell in competition with the patent owner by the date on which the patent expires And section 55.2(2) is the so-called stockpiling exception allowing competitors to manufacture and stockpile patented goods during a certain period before the patent expires, but the goods cannot be sold until after the patent expires In response to European Union‘s conclusion that these Canada‘s exceptions violated Articles 27.1, 28 and 33 of the TRIPS Agreement, Canada alleged that: ―Canada's exceptions to the exclusive rights conferred by a patent were "limited exceptions" within the meaning of Article 30 of the TRIPS Agreement212, because they did not conflict in any mode or manner with the "normal exploitation" of a patent; they did not prejudice, or if they did, they did not "unreasonably prejudice" the "legitimate interests of a patentee taking account of the "legitimate interests" of third parties; and the third party interests that the exceptions took account of were "legitimate interests" of relevant third parties.‖213 Importantly, Canada did claim that its regulation was permitted under Art of the TRIPS Agreement, as follows: ―In the view of Canada … one of the key goals of the TRIPS Agreement was a balance between the intellectual property rights created by the Agreement and other important socio-economic policies of WTO Member governments Article 8214 elaborates the socioeconomic policies in question, with particular attention to health and nutritional policies.‖ In term of section 55.2, Canada asserted that the legitimacy of the third party interest in the adoption of measures like those to counteract the post-expiry 212 Article 30 of TRIPs provides that ―Members may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions not unreasonably conflict with a normal exploitation of the patent and not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties.‖ 213 Canada - Patent Protection of Pharmaceutical Products, Panel report, WT/DS114/R (Panel, March 2000) Accessed April 8, 2003, p.16 214 Article Principles: Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect 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 this Agreement 67 monopoly for regulated products was particularly pronounced in the cases of both users and payers of health care products Besides, public health was a value whose importance was recognized as a matter of principle in Article 8.1 of the TRIPS Agreement Factually, the use of generic medicines retailed in important economies for the public health care system, and so contributed to its viability and the protection of public health These measures have been introduced in response to the increasing costs of health care in the major markets Thereby, measures that sought to control the costs of the health care system and to ensure access to needed drug therapies were obviously conducive to social welfare As such, they could properly be adopted by Members pursuant to Article 30, as a means of achieving the balance contemplated by Article In the post-expiry market, the interests of consumers and payers in ensuring access to less costly generic drugs were legitimate and important In particular, Canada supposed that as required by Article 30, these exceptions they sought to protect public health-a value recognized in Article 8.1 of the TRIPS Agreement-through promoting access to cost-effective generic medicines following patent expiry In this connection, they took into account the legitimate interests of individuals, private insurers and public sector entities that financed health care in maintaining access to affordable medicines Furthermore, Canada argued that the language of Article 30 must be interpreted according to the rules of interpretation contained in the Vienna Convention on the Law of Treaties Article 31, paragraph 1, of that Convention set out the basic principle 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‖ Article 31, paragraph 2, of the Vienna Convention went on to specify that the context in which treaty terms were to be read included, among other things, the preamble to the treaty For this reason, in order to ascertain the scope of Article 30, the Preamble of the TRIPS Agreement and Article of the Agreement certifying TRIPs objectives must be bear in mind The requirement that measures and procedures to enforce intellectual property rights 68 not themselves become barriers to legitimate trade in the Preamble of the TRIPS Agreement and social and economic welfare, and to a balance of rights and obligations in Article have to be subsequently ensured TRIPS Agreement therefore did not aim to achieve a degree of protection for intellectual property rights which would unduly prejudice the vital public interest in social and economic welfare or the rights of others 3.2.2 “Public health” consideration in relevant provisions’ interpretation After taking into consideration both parties‘ arguments, the panel found that: The so-called regulatory review exception (Section 55.2(1) was not inconsistent with Article 27.1 of the TRIPS Agreement and was covered by the exception in Article 30 of the TRIPS Agreement and therefore not inconsistent with Article 28.1 of the TRIPS Agreement The so-called stockpiling exception (Section 55.2(2) was inconsistent with Article 28.1 of the TRIPS Agreement and was not covered by the exception in Article 30 of the TRIPS Agreement The panel considered that, unlike the regulatory review exception, the stockpiling exception constituted a substantial curtailment of the exclusionary rights required to be granted to patent owners under Article 28.1 to such an extent that it could not be considered to be a limited exception within the meaning of Article 30 of the TRIPS Agreement However, these conclusions were withdrawn by examining three cumulative conditions of Article 30 namely (1) the exception must be ―limited‖; (2) the exception must not ―unreasonably conflict with normal exploitation of the patent‖; (3) the exception must not ―unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties‖ without any consideration about ―public health‖ which had been clearly presented by Canada 3.2.3 Evaluating Panel‟s report toward relevant provisions‟ interpretation The interpretation of Article 8, specifically on the public health goals, by the Panel in the Canada – Patent Protection of Pharmaceutical Products Case, shows not 69 only a strict interpretation of the agreement, but a refusal to consider exceptions for public health reasons Thereby, this effectively ignored states‘ obligation to promote the right to health In this case, European Community sued for the patent protection control of Canada, which allowed for the use of patented drugs without authorization of the patent holder, for the development of generic medicines before expiration of the patent This policy was relied on Canada‘s public health policy goal, to ensure that generics could be tested for regulatory review before exhaustion of patents, so as to start distribution as soon as patents expired No less of importance is to ensure access to needed drug therapies This case is crucial for the reason that different to the previous case where public health necessity were not based on, Canada did claim that its regulation was permitted under Article of the TRIPS Agreement for public health concern Unfortunately, such Panel‘s rulings and recommendations have never reviewed by the Appellate Body because Canada did not appeal this case to the Appellate Body If such interpretation of the Panel is followed by Dispute Settlement Bodies in later cases, ―public health‖ will be taken no notice and the right to health will also be thereby overlooked Moreover, it raises a concern here that in regard of WTO countries which are members of human right treaties guaranteeing the right to health, such interpretation will be bound to limit their options to protect the right to health As a consequence, this makes them prosperously desecrate their human right obligation Conclusion of chapter 3: In United States – Import Prohibition of Certain Shrimp and Shrimp Products case, the Dispute Settlement Bodies had an evolutionary interpretation since they examined meaning of the ―exhaustible natural resources‖ in light of ―sustainable development‖ On the other hand, the sole case of TRIPs attaining jurisdiction of the Dispute Settlement Bodies did refuse to take human-rights-related-concern in term of public health into account when dealing with the Canada Patent case 70 CONCLUSION After research of the Interpretation of the GATT‘s Article XX and TRIPs in the context of human rights, the author has withdrawn the following conclusions: Firstly, WTO, different from GATT mechanism, has involved gradually in its perspective in human rights concerns and paid much more attention to relevant respects of human rights through its historical development, the current legislation and negotiation: (i) adding some related- human rights issues to negotiations ground and mention those into WTO fundamental agreement are particular evidence of the WTO‘s changing by time, (ii) various terminologies relevant to human rights are mentioned officially in the Article XX GATT 1994 and TRIPs agreement in spite of no prevalence of this term in these two legal instruments , and (iii) Doha declaration referred to member states‘ obligation to protect public health as an initial step to protect and fulfill the right to health approach Secondly, WTO has not officially announced about the WTO Dispute settlement Bodies‘ competence toward human rights interpretation and this raised a lot of controversies However, the fact that the WTO Dispute settlement Bodies took into account related-human rights concerns into account and referred to the international human rights instruments is implied for WTO‘s acceptance to WTO Dispute settlement Bodies‘ competence toward human rights interpretation and the extent of interpreting Regardless of the presence of relevant-human rights terms in the Article XX GATT 1994 and TRIPs, the jurisdictions of the WTO Dispute settlement Bodies is still limited Even some terms have not been challenged by WTO members Moreover, scholars have had diverse interpretations way to those terms‘ meaning Thirdly, analyzing the two typical cases in regard to the Article XX GATT 1994 and TRIPs, it is noticeable that in relation to the Article XX GATT 1994, Dispute settlement Bodies actually approached to human rights and obtained an evolutionary interpretation However, in relation to TRIPs agreement they still have a strict interpretation toward human rights concerns 71 BIBLIOGRAPHY I Legal Documents Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) Agreement on Sanitary and Phytosanitary Measures (SPS) Dispute Settlement Understanding (DSU) Doha declaration on TRIPs agreement and Public health Adopted on 14 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E/C.12/2011/WP.2, Part III, available at http://www.unhchr.ch/tbs/doc.nsf/0/907f88e4d28e4cb9c1256a63003069fd?Opendo cument 72 United States — Import Prohibition of Certain Shrimp and Shrimp Products, Available at http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds58_e.htm 73 Universal Human Rights Instruments, available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/UniversalHumanRightsInstru ments.aspx 74 US — Offset Act (Byrd Amendment), WT/DS217/AB/R, paragraph 248; available at http://www.wto.org/english/tratop_e/dispu_e/repertory_e/i3_e.htm 75 What are human rights, Available at http://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx 76 WTO analytical index, Article XX, available at https://www.wto.org/english/res_e/booksp_e/analytic_index_e/gatt1994_07_e.htm# article20 78 APPENDIX Table 2.1: Cases in regard to TRIPs Kinds of case Number of case Mutually agreed solution 14 In consultation In Panel establishment (but not yet composed) Panel report Appellate Body report Total of case 33 Table 3.1: The main facts’ summary of the WT-DS 58 Time US’s activity Affecting scale Requirement (*) 1987 Circulating ―1987 Regulations‖ United State Using TEDs 1989 Circulating ―Section 609‖ Caribbean/Western Must have Atlantic region certification and declaration 1991 Circulating the ―1991 Caribbean/Western Must have to Guidelines‖ and the ―1993 Atlantic region certification and 1993 Guidelines‖ for the declaration implementation of Section 609 1996 Circulating the ―1996 All countries Must have a Guidelines‖ for the declaration and implementation of Section 609 without 79 certification Later Negotiating with nations outside Nations outside A four-month Caribbean/Western Atlantic Caribbean/Western phase-in period Atlantic before the import prohibition went into effect *Requirement: in order to not to be subject to the US‘s embargo ... ? ?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 Purposes of the Thesis Studying the topic named ? ?Interpretation. .. 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... 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