Are trade restrictions justifiable health safety measures to face Corona Virus? Carla Amaral de Andrade Junqueira

The World Health Organization (WHO) is reconvening the International Health Regulations Emergency Committee on the new Corona Virus, to decide whether the current outbreak constitutes a public health emergency of international concern. The decision may have an impact on trade flows in and out of China.
If the WHO regards China as public health emergency area, would trade restrictions be justifiable? Most international trade agreements establish exceptions that allow flexibility where the measure in question is necessary to protect human health.

Trade flows can affect health in multiple ways. Sometimes the impact is direct, and the effect is obvious, as when a disease crosses a border together with traded goods or services. Other times the effects are more indirect and more related to international travels and movement of people.

The WHO rules are based on the principle to respond rapidly and effectively to public health needs, whereas the WTO rules are based on cross-border flows. Free trade implies mixing of people and more rapid cross border flows of goods and services and people, affecting the profile of risk factors for disease.

Much of the existing body of international trade law, such as the agreements under the WTO, was negotiated and adopted without much input from public health experts and officials. Within the public health community, concerns have been raised that the acceptance and implementation of international trade treaties adversely affect the mission of public health by reducing the “policy space” that public health agencies have to protect population and individual health. This line of reasoning asserts that implementation of trade treaties harms the ability of governments to protect the public’s health from disease risks heightened by the globalization of markets, trade and commerce.

In case of an outbreak, such as the Corona Virus, health-based justifications for violating a principle of a trade treaty must rationally relate to the objective of protecting human health. The import ban of a product or service that poses danger to a human health must be the least trade-restrictive measure possible to achieve the level of health protection sought. Moreover, the measure must be applied in a manner that constitutes a disguises restriction o arbitrary or unjustified discrimination.

The WTO Dispute Settlement Body (DSB) has enunciated that health effects should be included in the case-by-case analysis of whether products or services are alike and that trade restrictive measures to protect human health are permissible under the WTO agreements, so long as there are no less restrictive alternative measures that could reasonably be expected to achieve the health policy objectives in question.
Article 20 of the General Agreement on Tariffs and Trade (GATT) allows governments to act on trade in order to protect human health, provided they do not discriminate or use this as disguised protectionism. WTO members are encouraged to use international standards, guidelines and recommendations where they exist. When they do, they are unlikely to be challenged legally in a WTO dispute. However, members may use measures which result in higher standards if there is scientific justification. They can also set higher standards based on appropriate assessment of risks so long as the approach is consistent, not arbitrary. And they can to some extent apply the “precautionary principle”, a kind of “safety first” approach to deal with scientific uncertainty. Article 5.7 of the sanitary and phytosanitary agreement (SPS) allows temporary “precautionary” measures.

The SPS agreement still allows countries to use different standards and different methods of inspecting products. So how can an exporting country be sure the practices it applies to its products are acceptable in an importing country? If an exporting country can demonstrate that the measures it applies to its exports achieve the same level of health protection as in the importing country, then the importing country is expected to accept the exporting country’s standards and methods.

The SPS agreement includes provisions on control, inspection and approval procedures. Governments must provide advance notice of new or changed sanitary and phytosanitary regulations, and establish a national enquiry point to provide information.

Thus, international treaties allow countries to set their own standards of public protection, but alsoestablish that regulations must be based on science. Therefore, any trade restriction to face Corona Virus will be justified if the following conditions are met: (i) the measure is rationally relate to the objective of protecting human health, (ii) the measure is the least trade-restrictive measure possible to achieve the level of health protection sought; (iii) the measure is based on scientific evidence and (iv) the measure is applied in a manner that constitutes a disguises restriction o arbitrary or unjustified discrimination.