Right to Health in GATS: Can The Public Health Exception Pave the Way for Complementarity?

Abstract

Trade in health-related services, such as hospital, medical professional and sanitation, have potential to improve health outcomes for Countries. Yet, health-related services are least liberalised services sector under GATS. Reluctance of WTO members can be attributed to the scepticism that GATS restricts the public health policies and their ability to protect, promote and fulfil their right to health obligation as signatory to ICESCR. Examining the specific interaction between the right to health and public health exception in GATS, this paper demonstrates that WTO members can raise public health exception to justify trade-restrictive public health policies aimed at fulfilling the right to health. It argues that good faith and harmonious interpretation of the public health exception in GATS taking into account the right to health not only brings complementarity between international human rights and international trade law regimes but further advances systemic integration and (de)fragmentation of public international law.