First, by applying the precautionary principle, public health can be more in touch with state trade negotiators in the continued development of the WTO and regional or bilateral trade agreements. This could be supported by the development of a “health impact assessment methodology” for trade agreements, as requested by the UN Special Rapporteur on the right to health in his 2004 mission to the WTO.36 There is a growing recognition that developing countries performed worse than the Quad and other richer countries in the Uruguay Round negotiations that have launched the WTO. At the same time, the Millennium Development Goals (MDGs), a set of development goals, most of which are directly or indirectly related to health, have attracted significant multilateral political attention. This has led some analysts to suggest that trade agreements are subordinated to these objectives; Developing countries would be exempted from trade treaty obligations if they could demonstrate their need to achieve the Millennium Development Goals. In particular, a trade challenge against a developing country would be diverted from the WTO dispute settlement process to a group of development experts that would examine the challenge in the light of the Millennium Development Goals or a subsequent set of multilateral development goals. This exceptional process would respond to the criticisms of two United Nations Special Rapporteurs on globalization and human rights, who concluded that it was “necessary to move away from ad hoc and contingent approaches to conflicts between trade, human rights and development”.34 A worrying development has been the increase in travel and agreements. These are regional or bilateral trade agreements whose intellectual property rights provisions provide less policy flexibility than under TRIPS. TRIPS plus agreements typically add new areas of intellectual property rights, limit compulsory licensing, extend patent protection to transgenic lifestyles, and create dispute settlement rules for patent holders.11 The public health concern is that such agreements could weaken the small gains made by developing countries at the Doha Ministerial Conference. The US would focus on THE TRIPS agreements more in the hope that this will end up imposing stronger intellectual property rights in the TRIPS agreement itself.13 The best-known SPS case was an EU ban on foreign beef containing artificial growth hormones, which are banned in Europe because they can be carcinogenic. The panel ruled against the EC ban, in part because international standards had been established for five of the six hormones in question.44 SpS (III.1) favours state regulations based on international standards, in particular those of the Codex Alimentarius Commission (Codex). Codex is a joint FAO-WHO food standards programme.
What the panel ignored was that Codex adopted a “safe” level of hormone use by a very narrow vote of 33 to 29 with seven abstentions; and that Codex itself has been criticized for having an overwhelming majority of business scientists with very limited participation of civil society organizations. Standard-setting and risk assessment are not only “scientific”, but also political and controversial, especially in cases of uncertainty. While acknowledging that there could be a health risk, the Appellate Body has re-appealed against the EU for failing to conduct an appropriate risk assessment of bovine hormone abuse under the SPS. In 1999, the WTO sanctioned trade retaliation by the US and Canada against the EU, which refused to lift the ban. .