Right to health in GATS: can the public health exception pave the way for complementarity?

Abstract

International trade in the healthcare services came to be acknowledged with the inclusion of health related and social services in General Agreement on Trade in Services (GATS). Although public services are excluded, Members are still unsure whether they retain the right to regulate public health and freely supply public healthcare services given the textual ambiguities in the exclusion clause. Public healthcare services are crucial from a right to health perspective which requires availability and accessibility of public health services. Consequently, only one third Members have (fully or partially) liberalised the hospital services sector and are reluctant to further liberalise this sector. World Trade Organisation (WTO) secretariat claims that GATS respects a member’s right to protect public health by allowing a WTO member to adopt or enforce any measure necessary to protect human, animal or plant life or health. It acknowledges the importance of healthcare and reassures the Members that they can justify the breach of any GATS obligations under the public health exception in GATS Article XIV(b). This paper thus argues that WTO can corroborate its claim by drawing on the right to health to interpret public health exception in GATS. There are generally two types of normative relationships in international law: relationships of interpretation and relationship of conflict. Where one norm assists in the interpretation of another, there is a relationship of interpretation. On the other hand, where two valid and applicable norms point to incompatible decisions so much so that a choice must be made between them, a relationship of conflict is deemed to exist. As there is no apparent legal and normative conflict between GATS and the right to health norms, this paper argues that a relationship of interpretation can be found through a right to health interpretation of public health exception in GATS. The Appellate Body has already established that WTO law is not to be read in clinical isolation from public international law and has considered contemporary international conventions in dispute settlements. Thus, a good faith interpretation of GATS public health exception taking into account the right to health not only provides coherency but also echoes the complementarity as found between the Marrakesh Agreement Establishing the WTO and the UN Charter. Finally, it will encourage further liberalisation of the health services sector if Members are reassured that they can retain the right to regulate public health services and fulfil their right to health obligation ad libitum.