This is a guest post from Jingyuan "Joey" Zhou, Professor of Practice at University of Arizona Law School
Introduction
As exemplified by COVID-19,[i] a Public Health Emergency of International Concern (PHEIC)[ii] incidence and past PHEIC incidences like H1N1, Ebola, and MERS, governments take significant actions based on limited information and knowledge about the disease to prevent it from spreading and to protect their citizens. Containment measures seeking to establish barriers to the spread of the disease are exemplified by restrictions and bans of entries[iii] to those who have recently travelled to the epicenter or the country where the epicenter is located or other countries more broadly.[iv] Mitigation measures that focus on minimizing the impact by maximizing surge capacity may be seen from a declaration of a domestic “public health emergency”[v] or “a state of emergency.”[vi] Such measures should be based on “scientific principles, available scientific evidence, and available specific guidance and advice from the W[orld] H[ealth] O[rganization].”[vii] Those measures (hopefully?) restrict the spread of the disease, but also (inevitably) interfere with the movement of people and goods, sometimes even defy[viii] the WHO’s non-binding recommendations[ix] otherwise. This short piece reviews responses taken by governments since the existence of the coronavirus became publicly known in late December 2019, through the end of February 2020, and examines their compliance with certain World Trade Organization (WTO) trade in services rules as service trade is hurt most severely[x] (discussed below). The discussion makes reference to past responses taken during other pandemics and analogies from relevant cases under WTO jurisprudence in trade in goods.[xi] Recognizing the inherent power states have to protect their own citizens, I advocate collective actions based on scientific evidence, close communication, and against discriminatory measures.
WTO Principles
The General Agreement on Trade in Services (the “GATS”) sets forth primary principles, rights, and obligations that each WTO Member pledges to uphold. The commitments include non-discrimination and market access, among others. WTO Members, however, can impose measures “necessary to protect human, animal or plant life or health”[xii] and each Member may take actions “which it considers necessary for the protection of its essential security interests: … taken in time of war or other emergency in international relations; …”[xiii] that would have otherwise violated their pledges. Currently, with the restrictions on entry and fears over the spread of the disease, tourism and other hospitality industries including air and cruise traffic have reportedly been hit hard.[xiv] Factories are closed[xv] as are hotels and restaurants.[xvi] Exchange programs have been cancelled or postponed and the operations of global campuses have been restricted.[xvii] Thus, three out of the four modes of trade in services—consumption abroad (e.g., tourism and other hospitality industries), commercial presence (e.g., factories), and presence of natural persons (e.g., education)—are suffering and may suffer further under these protective and yet trade restrictive measures.
To date (February 22, 2020), no case challenging a Member’s measures imposed during PHEIC under GATS has been brought to the WTO for adjudication. Similar measures such as import restrictions on contaminated goods that may affect the safety and health of people against specific Members, however, have been challenged for asserting exceptions under Art. XX of the General Agree on Tariffs and Trade (GATT) and Arts. 2.2 and 5.7 of the Sanitary and Phytosanitary Agreement (SPS). Although Art. XXI of GATT has not been invoked to justify measures taken for safety and health reasons, the inherent power governments have to protect national security may see its application to PHEIC responses. Those WTO decisions shed light on the legality and compliance of measures Members take during PHEIC (now and in the future).
Governments have discretion in implementing measures for national security reasons, subject to WTO review.[xviii] Such measures—imports/export restrictions, for example—must be taken to protect a Member’s citizen from “external threats” under “an emergency in international relations.”[xix] As interpreted by the panel in Russia—Traffic in Transit, an emergency is an “armed conflict, or of latent armed conflict, or of heightened tension or crisis, or of general instability engulfing or surrounding a state.” Other WTO Members, including the United States, argue that the panel’s definition of an emergency is overly narrow.
Governments can implement measures “necessary to protect human … health,” provided that such measures are not “arbitrary or unjustifiabl[y] discriminat[ory].”[xx] For example, the complete ban on both domestic and imported asbestos products imposed by France is justified as a legitimate measure protecting French citizens from asbestos-related cancer.[xxi]
When imposing trade restrictive measures on goods for human health, governments are required to base these measures on sufficient scientific evidence or relevant international standards, and conduct a risk assessment.[xxii] However, when scientific research and evidence are insufficient or divergent, trade restrictive measures in the name of protecting public health may be difficult to defend against legal challenges, especially under Arts. 2.2 and 5.7 of SPS. Art. 2.2 of SPS authorizes governments to adopt measures “necessary to protect human … health, … based on scientific principles.” Art. 5.7 allows Members to “provisionally adopt … measures on the basis of available pertinent information, including that from the relevant international organizations … as well as applied by other Members” when “relevant scientific evidence is insufficient.”
One case regarding a complete import ban taken during Avian Influenza (though not PHEIC) is most relevant here. Experiencing High Pathogenicity Avian Influenza (infections of which may cause serious complications or fatal cases in humans), India banned the importation of agricultural products like poultry products from the United States. [xxiii] India claimed that such products came from areas that were affected by Low Pathogenicity Avian Influenza (infection of which may be asymptomatic or have very mild symptoms). The U.S. accused India of not basing its measures on or conforming to the World Organization for Animal Health (OIE)’s established international standard, the OIE Terrestrial Code, nor on a scientific risk assessment. The U.S. also claimed that India discriminatorily imposed those measures on poultry products from the U.S. while sparing products from other Members where similar conditions prevailed. The U.S. further alleged that India failed to recognize the disease-free areas and areas of low prevalence of the disease under Art. 6 of SPS, thus prohibiting imports of poultry products from those “safe” areas. The WTO panel and the Appellate Body sided with the U.S. on the aforementioned challenges, but the Appellate Body faulted the panel for not considering whether these Indian measures were supported by sufficient scientific evidence. Up to now, the compliance panel has yet to rule on India’s implementation of Appellate Body’s recommendations.
The EC—Hormones case is relevant when trade restrictive measures are taken under the “precautionary principle.”[xxiv] The European Community’s ban—imposed when scientific evidence on the toxicity of certain hormones was insufficient—on imports and domestic production of certain hormone treated meat and meat products, with limited exceptions, was held to be WTO-inconsistent.[xxv] The Appellate Body, in its ruling on the “precautionary principle” justification invoked by the EC, recognized that the “precautionary principle” was reflected in Art. 5.7 of SPS. The Appellate Body further held that any measure resulting from an exercise of the “precautionary principle” should conform to the risk assessment requirement, which must be sufficiently warranted by scientific evidence and principles.[xxvi]
Facilitating WTO-Compliant Responses to PHEIC
One obstacle facing governments during PHEIC is the lack of sufficient scientific evidence to justify stringent measures as oftentimes the disease is novel, fast spreading, and effective treatments are not presently available and may take time to develop. Meanwhile, governments need to protect their citizens and are required to base their measures on “scientific principles, available scientific evidence, and available specific guidance and advice from WHO.” As the risks of not taking sufficiently prudent and precautionary measures may be high and irreversible—life-terminating and serious damages to human health—in times of PHEIC, governments would rather err on the side of cautions, i.e., imposing more stringent measures than advised by WHO. Such more trade-restrictive-than-necessary measures may include a broad travel ban imposed on people coming from the Member state where the disease originates (instead of the specific area in that Member state where the disease originates) and from adjacent Member states where infections have been reported, defying the WHO’s advice to the contrary.
While governments’ hands should not be tied when responding to emergencies like PHEIC, it is important for governments to consider the consequences, risks, and externalities of those measures as they tend not only to impact the ability and capability of health protection, but also negatively affect international trade flow in goods and services. Those consequence, risks, and externalities may be justified under GATS Arts. XIV(b) and XIVbis, as alluded before, but governments should exercise restraint and extra precaution in assessing whether such measures are warranted by scientific principles and evidence. While PHEIC by itself indicates the existence of a public health emergency, whether it is equivalent to an emergency in international relations is still debatable. Assuming that PHEIC is equivalent to such enumerated emergencies (e.g., heightened crisis) in international relations, and protecting citizens’ health is one of “those interests relating to the quintessential functions of the state,” such measures shall not be “more restrictive of international traffic and trade … than reasonably available alternatives that would achieve the appropriate level of health protection.”[xxvii] When fear over unknown disease spreads alongside the disease itself, as is often the case of PHEIC, it is important to separate the legitimate consideration of protecting national security, citizens and their health with illegitimate considerations such as protectionism and de facto discrimination.
The more trade-restrictive-than-necessary measures may also be justified by drawing analogies to SPS, including the “precautious principle” embedded in Art. 5.7 when scientific evidence is scarce, when a new type of virus is reported and PHEIC is declared. However, the exercise of “precautionary principle” should not override the WHO’s requirements that governments should base their measures on “scientific principles, available scientific evidence, and available specific guidance and advice from WHO.” As past experience in PHEIC and other domestic pandemics suggest, new scientific evidence will be discovered and revealed as labs and researchers work collectively, though located separately, to study those novel viruses. In the interim, if and when governments feel compelled to implement more restrictive measures than advised by the WHO, some scientific justifications, more than mere fear, should be present to warrant such a deviation.
Admittedly, human health is of utmost importance to governments. To analogize measures under trade in goods and services rules, though relevant given the similarities in the wording of relevant provisions and the width of industries affected by measures taken during PHEIC, requires extra care. I do not purport to give a full account as to what constitutes “good practice” under PHEIC. I hope, however, by examining relevant past WTO cases concerning measures taken for the protection of national security and human health, a scientific evidence-centered approach will serve as guidance for measures taken in combating future PHEIC.
[i] WHO Director-General’s remarks at the media briefing on 2019-nCoV on 11 February 2020, World Health Organization, February 11, 2020, https://www.who.int/dg/speeches/detail/who-director-general-s-remarks-at-the-media-briefing-on-2019-ncov-on-11-february-2020.
[ii] Statement on the second meeting of the International Health Regulations (2005) Emergency Committee regarding the outbreak of novel coronavirus (2019-nCoV), World Health Organization, January 30, 2020, https://www.who.int/news-room/detail/30-01-2020-statement-on-the-second-meeting-of-the-international-health-regulations-(2005)-emergency-committee-regarding-the-outbreak-of-novel-coronavirus-(2019-ncov).
[iii] Rachel Pannett, Australia Restricts Travelers From Mainland China as Virus Impact Spreads, Wall Street Journal, February 1, 2020, https://www.wsj.com/articles/australia-s-qantas-suspends-china-flights-as-virus-impact-spreads-11580536238.
[iv] China coronavirus outbreak: All the latest updates, Al Jazeera, Feb. 21, 2020, https://www.aljazeera.com/news/2020/02/cloneofcloneofcloneofcloneofcloneof2002152244372-200220231446112.html.
[v] Secretary Azar Declares Public Health Emergency for United States for 2019 Novel Coronavirus, HHS Press Office, Jan. 31, 2020, https://www.hhs.gov/about/news/2020/01/31/secretary-azar-declares-public-health-emergency-us-2019-novel-coronavirus.html.
[vi] Italy declares state of emergency over coronavirus, France24, Jan. 31, 2020, https://www.france24.com/en/20200131-italy-declares-state-of-emergency-over-coronavirus.
[vii] International Health Regulations (2005), Art. 43(2), https://apps.who.int/iris/bitstream/handle/10665/246107/9789241580496-eng.pdf;jsessionid=A4372CD14B345F1D18285627B0EC340A?sequence=1.
[viii] WHO advice for international travel and trade in relation to the outbreak of pneumonia caused by a new coronavirus in China, WHO, Jan.10, 2020, https://www.who.int/ith/2020-0901_outbreak_of_Pneumonia_caused_by_a_new_coronavirus_in_C/en/.
[ix] Supra note vii, Article 1.
[x] Cecile Daurat, The Coronavirus is Infecting the Global Economy. Here’s How., Bloomberg, Jan. 31, 2020, https://www.bloomberg.com/news/articles/2020-01-31/the-global-economy-is-getting-infected-by-the-virus?sref=Yspa2Kpl.
[xi] The similarity in the languages and goals in Arts. XX(b) and XXI of GATT, and Art. 5.7 of SPS vis-à-vis GATS provisions warrants such analogy. See also Appellate Body’s U.S.—Gambling decision, recognizing the relevance of the jurisprudence under Art. XX of GATT.
[xii] GATS Art. XIV(b)
[xiii] GATS Art. XIVbis.
[xiv] Louise Moon and Martin Choi, Global tourism to take a US$80 billion hit and a year to shake off the effects of coronavirus outbreak, South China Morning Post, Feb. 14, 2020, https://www.scmp.com/business/companies/article/3050682/global-tourism-take-us80-billion-hit-and-year-shake-effects.
[xv] Coronavirus: Much of ‘the world’s factory’ still shut, BBC News, Feb. 10, 2020, https://www.bbc.com/news/business-51439400.
[xvi] See supra note xiv.
[xvii] Associated Press, Universities cancel study-abroad programs amid coronavirus fears, New York Post, Feb. 6, 2020, https://nypost.com/2020/02/06/universities-cancel-study-abroad-programs-amid-coronavirus-fears/.
[xviii] Russia — Measures Concerning Traffic in Transit (hereinafter “Russia—Traffic in Transit”), DS512, WT/DS512/R, paras. 7.102-7.104.
[xix] Id. at paras. 7.130 and 7.76.
[xx] Art. XX of GATT.
[xxi] European Communities — Measures Affecting Asbestos and Products Containing Asbestos, DS135, WT/DS135/AB/R.
[xxii] Articles 2 and 5 of SPS.
[xxiii] India—Measures Concerning the Importation of Certain Agricultural Products (United States), DS430, WT/DS430/AB/R paras. 1.4 and 4.12.
[xxiv] European Communities — Measures Concerning Meat and Meat Products (Hormones) (hereinafter “EC—Hormones”), WT/DS26/AB/R and WT/DS48/AB/R. The Appellate Body Report did not opine on whether “precautionary principle” has become customary international or a general principle of international law. Para. 123.
[xxv] EC—Hormones, WT/DS26/9 para. 9.1 and WT/DS48/7 para. 9.1.
[xxvi] EC—Hormones, WT/DS26/AB/R and WT/DS48/AB/R, Part XIV.
[xxvii] Supra note vii.
