General Issue
Vol. VIII, No. 1
(Summer '16)

This paper identifies the legal and economic assessments applied to resolve WTO disputes requiring an assessment of the contribution of the measure to the objective pursued, along with identifying any reasonably available alternatives. It focuses on disputes encompassing an interpretation of GATT Article XX (b), Sanitary and Phytosanitary Agreement (SPS) Article 5.6 and the Technical Barriers to Trade (TBT) Agreement Article 2.2. This narrow focus is because the WTO DSB has opined that there are no significant differences between the tests developed under Art. XX(b) of the GATT 1994 and Art. 5.6 of the SPS Agreement, nor that any aspect of the Art. XX(b) jurisprudence relating to the interpretation of the term "necessary" would be inapplicable to Art. 2.2 of the TBT Agreement.[1] This provides an opportunity to compare the legal and economic assessments applied in disputes falling under these provisions

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According to Articles 2.2, 5.1 and 5.2 of the Agreement on the Application of Sanitary and Phytosanitary Measures (“SPS Agreement”), Members need to base sanitary and phytosanitary measures (“SPS measures”) on scientific principles and risk assessment. These provisions have sparked analysis on issues such as how this ‘risk’ needs to be addressed, which ‘science’ Members need to take into account, and what the relationship is between values and science. It is commonly observed that the SPS Agreement leans towards a technical approach to the determination of risk. If socio-economic concerns were to be taken into account in the SPS Agreement, a leeway for Members to introduce protectionist policies would open up. We illustrate with the example of the ongoing citrus dispute between the European Union (EU) and South Africa that the technical approach can likewise be used to shield protectionist policies with an extraterritorial effect. The reason for this is the uncertainty with regards to how science needs to be interpreted in relation to the probability that a disease will be introduced. We conclude that the choice for technical risk does not remedy the ‘protectionist policy with extraterritorial effect’ problem. Rather than debating the options of ‘socio-economic’ risk and ‘technical’ risk only, the WTO Dispute Settlement Body should use disputes such as the one on citrus to develop a more normative approach to ‘risk’ in the SPS Agreement, indicating which kind of ‘probability’ is normatively required to justify SPS measures.

This paper attempts a critical examination of the doctrine of legitimate expectations in relation to non-violation complaints with a view to underlining its doctrinal significance for developing countries to justify the use of TRIPS flexibilities, such as compulsory licences, for public health considerations. Consequently, the author briefly traces some failed promises during the negotiation of TRIPS, and argues that the principle of good faith interpretation under World Trade Organisation law is more supportive of the contention that developing countries, which are generally the ones faced with complex public health issues require as a matter of fairness, greater flexibility to use compulsory licences in order to obtain affordable medicines to protect their legitimate public health expectations. This argument rests on the presumption that TRIPS allows for the substantive protection of legitimate expectations based on the balance of rights and obligations, and presently the agreement overly protects patents on essential medicines. Therefore, by implication the legitimate expectations of only the home governments of the pharmaceutical industry are protected at the expense of developing countries.

Over the past two decades, under the general framework of the Agreement on the Application of Sanitary and Phytosanitary Measures (―SPS Agreement‖) of the World Trade Organization (―WTO‖), countries have devised and revised their food safety laws in an uncoordinated fashion. As a result, a fragmented global food safety governance now stands in contrast to an increasingly globalized food supply chain. Nevertheless, the latest wave of updates of food safety regimes in the United States, the European Union, and China points to several nodes of convergence. This paper elaborates on these converging themes, including their boundaries, and explores the policy implications. It suggests that these unifying themes are areas ripe for international cooperation, a roadmap for other countries’ legal update, a best practice to be diffused for enhanced global food safety, and a call for additional civil society participation.

Since the negotiations leading to the adoption of the TRIPS Agreement and throughout the recent proliferation of TRIPS-Plus provisions, scholars, policymakers, and activists alike have been sharply divided between those who saw pharmaceutical patents as a tool for promoting of technological progress and those who denounced their adverse impact on access to affordable medicines worldwide. This article seeks to reconstruct that debate by focusing on three of its interlocking dimensions and the narratives built around them. First, the opposition between intellectual property and public health may be seen as part of a political and diplomatic struggle between developed and developing countries. Second, it may be construed as a normative conflict between two policy objectives equally recognized and protected under international law (in particular under trade rules and human rights rules, respectively). Third, it may reflect a clash between the discourses and the deeply ingrained rationalities of different international institutions, such as the WTO, the WHO, and the UN human rights bodies. Focusing on any of these three dimensions frames our understanding of a crucial global issue and shapes our vocabulary to address it. However, each narrative also has its own blind spots and obscures as much as it reveals.