The Burden of Proof in WTO Public Health Protection Disputes

Abstract

The relationship between international trade and public health is complex. The accessibility of a diverse range of goods and services brings opportunities for health improvement. Meanwhile, there are risks of disease transmission. The WTO provides a framework for managing trade-related public health concerns, such as the GATT 1994, SPS, TBT, and TRIPS Agreements. In disputes involving public health measures that restrict trade, the burden of proof lies on the party seeking to justify the measure, requiring scientific evidence. The burden of proof can shift to the defending party, who may also present evidence in defense of their measure. There are many challenges to the necessity of protecting public health, including legal uncertainty, balancing necessity and trade interests, and the burden of proof for non-arbitrary discrimination. It also discusses the cost imbalance in presenting evidence and the lack of sufficient evidence for discrimination. The author suggests ways forward for developing standardized frameworks for assessing trade restrictions, harmonizing public health and trade standards, increasing cooperation, addressing the misuse of exceptions and trade barriers, and strengthening scientific expertise within WTO panels and dispute resolution bodies.

Keywords:Burden of Proof, Public Health Protection, WTO, Necessary, Arbitrary or Unjustifiable Discrimination, Scientific Evidence

DOI: 10.7176/JLPG/139-08

Publication date: January 31^st 2024