The International Code in relation to agreements of the World Trade Organisation: health versus trade interests

Trade has an impact on health in various ways. In its preamble, the World Trade Organisation (WTO) states that free trade should contribute to an improvement in the standard of living. This suggests that liberalisation of trade should not be regarded as a goal in itself. Unfortunately, the WTO's first real objective is to facilitate international trade, especially for the richer, industrialised world. Because of its enforcement mechanism (i.e. its authority to impose trade sanctions), the WTO is regarded as having more power than other multilateral organisations such as the World Health Organisation (WHO). The WTO is therefore not only a growing influence in world trade, but is also "set to become one of the most important influences on international health today" (note 1).

"The International Code of Marketing of Breast-milk Substitutes and relevant subsequent World Health Assembly (WHA) resolutions should be totally and explicitly exempted from WTO trade agreements. In that way they cannot be challenged as being ‘barriers to trade’ on the basis of these agreements". This was the main conclusion of the participants of the expert meeting that took place in Amsterdam on 20 September 2001, organised by Wemos (Netherlands). Among the participants were international experts in the fields of ‘WTO and consumer & health issues’ and ‘globalisation’ and representatives of a number of IBFAN groups. The position of the Code under the unfolding WTO regime and the options to strengthen the position and reaffirm the authority of the Code (note 2) were discussed in this meeting. The following paragraphs reflect this discussion.

The Ministry of Trade can hamper Code implementation and enforcement, which is usually the responsibility of the Ministry of Health. There have been numerous cases where foreign infant food companies (or even the government of the country where the company is based; see Guatemala vs. Gerber case) and institutions like the International Monetary Fund and the World Bank have put such Ministries under pressure, with the threat of trade sanctions and other adverse economic consequences. There is as yet no sign that the WTO agreements form a direct threat to the Code. Threats to the Code are not so much to be expected at the level of formal WTO disputes, but rather at the level of bilateral 'behind-the-scenes' pressures using economic power. However, the WTO or WTO agreements have been used as arguments in such pressures, which is already bad enough news for further and effective Code implementation.

The so-called SPS and TBT (note 3) agreements of the WTO acknowledge that governments have the right to take measures ‘necessary’ for the protection of human health. In these agreements Member States of the WTO are encouraged to base their measures on "international standards, guidelines or recommendations". The SPS agreement also explicitly refers to the Codex Alimentarius (food safety) standards. One of the key questions for the participants of the Amsterdam meeting was: would it be helpful if the Code were officially recognised in relevant WTO agreements?

At first sight one would say ‘yes’, because the WTO agreements are likely to outweigh decisions taken in the WHA, such as the Code, because of WTO's authority to impose sanctions. The industry might then have more respect for the Code. However, we see a number of dangers here. WTO is less transparent than UN organisations and heavily influenced by industry. Since the Codex Alimentarius is officially recognised under WTO there is an apparent shift from addressing public interests to facilitating trade (i.e. lowering trade barriers). Attempts to get the Code included in WTO agreements or standards may turn out to be counterproductive. In other words, the Code may then be transformed from a ‘minimum requirement’ (for governments to implement into a measure for the protection of health) to a ‘maximum requirement’ (that protects public health while posing minimal barriers to international trade).

The Code should be defended from a human rights perspective: that is that life and health are of an intrinsic value which should not be compromised by trade or commercial interests. Referring to the main conclusion of the Amsterdam meeting mentioned above (2nd paragraph), a possible strategy is to urge governments to amend to, or seek a clarification of, the relevant WTO agreements to ensure that provisions of the Code, and its subsequent WHA resolutions, are not subject to be challenged as trade barriers.

Notes

1. "World Trade Organisation: Implications for Health Policy". Medact, Physicians for Social Responsibility, EPHA and Wemos (2000).
2. Whenever 'the Code' is mentioned, it is in fact referring to The International Code of Marketing of Breast milk Substitutes and its relevant, subsequent WHA resolutions
3. SPS: Agreement on the Application of Sanitary and Phyto-sanitary measures
   TBT: Agreement on Technical Barriers to Trade.