Does the gats undermine democratic control over health?

Journal of Ethics

Volumn 9, Issue 1-2, 2005, Pages 269-281

  Sreenivasan, Gopal ^a  

^a UNIVERSITY OF TORONTO   (Canada)

Author keywords

Dmocracy; Free trade; GATS; Health; Health care system; Legitimacy; Services; WTO

Indexed keywords

EID: 33644932068     PISSN: 13824554     EISSN: 15728609     Source Type: Journal    
DOI: 10.1007/s10892-004-3329-4     Document Type: Article

References (37)

1. D. Lipson, "The World Trade Organization's Health Agenda," British Medical Journal 323 (2001), pp. 1139-1140.
2. See, e.g., S. Sinclair, GATS: How the WTO's New "Services" Negotiations Threaten Democracy (Ottawa: Canadian Centre for Policy Alternatives, 2000);
3. A. M. Pollock and D. Price, "The Public Health Implications of World Trade Negotiations on the General Agreement on Trade in Services and Public Services," Lancet 362 (2003), pp. 1072-1075;
4. A. M. Pollock and D. Price, "Rewriting the Regulations: How the World Trade Organisation Could Accelerate Privatisation in Health-Care Systems," Lancet 356 (2000), pp. 1995-2000;
5. D. Price, A. M. Pollock, and J. Shaoul, "How the World Trade Organisation is Shaping Domestic Policies in Health Care," Lancet 354 (1999), pp. 1889-1892;
6. and D. Bolwell, The WTO and the GATS: What Is at Stake for Public Health? (Ferney-Voltaire: Public Services International, 1999).
7. World Health Organisation and WTO, WTO Agreements and Public Health (Geneva: WTO, 2002), Section 228, http://www.wto.org/english/res-e/booksp-e/ who-wto-e.pdf (accessed 12 March 2004).
8. For the text of the GATS, see http://www.wto.org/english/docs-e/legal-e/ 26-gats-01-e.htm (accessed 12 March 2004).
9. It is rather controversial how much protection from the GATS this exemption affords public services, since it is quite unclear how these categories are to be interpreted. Indeed, one legal scholar has argued that they have "no clear meaning" according to generally accepted methods of legal interpretation [see M. Krajewski, Public Services and the Scope of the GATS (Geneva: Center for International Environmental Law, 2001, http://www.ciel.org/Publications/PublicServicesScope.pdf (accessed 12 March 2004)].
10. Or, more usually, had listed "life insurance," which includes health insurance, without specifically excluding the health insurance sub-sector [see WTO Council for Trade in Services, Financial Services: Background Note by the Secretariat S/C/W/72 (1998), Section 9, www.wto.org/english/tratop-e/serv-e/ w72.doc (accessed 12 March 2004)
11. For a more detailed presentation, see R. Adlung and A. Carzaniga, "Health Services Under the GATS," Bulletin of the World Health Organization 79 (2001), pp. 352-364.
12. I say they "offer to impose" these restrictions, since the Articles also allow a member to re-write the standard battery at its discretion.
13. See WTO Council for Trade in Services, Health and Social Services: Background Note by the Secretariat S/C/W/50 (1998), Table 3, www.wto.org/english/tratop-e/ serv-e/w50.doc (accessed 12 March 2004).
14. To be precise, the non-monopolistic suppliers of health insurance must also include foreign firms. Otherwise the resultant encroachment on trade in services will not harm another WTO member's trade, and so not violate Article VIII. The Canadian example described in the text below satisfies this more precise condition (see note 12).
15. A. S. Detsky and C. D. Naylor, "Canada's Health Care System - Reform Delayed," New England Journal of Medicine 349 (2003), pp. 804-810.
16. M. Sanger, Reckless Abandon: Canada, the GATS and the Future of Health Care (Ottawa: Canadian Centre for Policy Alternatives, 2001), Chapter 4;
17. and Canadian Centre for Policy Alternatives, Putting Health First: Canadian Health Care Reform, Trade Treaties, and Foreign Policy, Summary Report on Globalization and Health (Ottawa: Commission on the Future of Health Care in Canada, 2002), Chapter 5, www.hc-sc.gc.ca/english/pdf/romanow/pdfs/Summary- Globalization-E. pdf (accessed 12 March 2004).
18. A similar retort could be made in relation to the GATS's unconditional restrictions, since even these require that a nation has signed the agreement.
19. See, e.g., WTO, GATS: Fact and Fiction (2001), pp. 15-16, www.wto.org/ english/tratop-e/serv-e/gatsfacts1004-e.pdf (accessed 12 March 2004).
20. Compare OECD Working Party of the Trade Committee, Open Service Markets Matter TD/ TC/WP(2001)24/PART1/REV1 (Geneva: Organisation for Economic Cooperation and Development, 2001), p. 38;
21. R. Adlung, "Effects of World Trade on Public Health," Lancet 357 (2001), p. 1626;
22. and R. Adlung, "Health Care Systems and the WTO: No Grounds for Panic" (2001), www.wto.org/english/tratop-e/serv-e/ comments-lancet-e.doc (accessed 12 March 2004).
23. It is fair by and large. Nevertheless, there are circumstances under which even this point could be questioned. If the consequence of a sovereign decision was impossible to anticipate, it may plausibly be argued that it does not inherit the stamp even of sovereign approval. In fact, various consequences of the decision to schedule a sector under the GATS are arguably impossible to anticipate, since their significance depends upon the correct interpretation of Article I Section 3's governmental authority exemption, which is extremely unclear (see note 5).
24. It is controversial what precise sense is the most suitable to require here. For simplicity, I shall frame the discussion in the familiar language of "popular mandates." But this is not meant to prejudge the underlying issue of how best to understand democratic legitimacy. The problem I go on to introduce arises independently of the simplified terms in which I frame it. See note 23, below.
25. For an account of the ratification (and implementation) procedures followed in eleven different jurisdictions, see J. Jackson and A. Sykes (eds.), Implementing the Uruguay Round (Oxford: Clarendon Press, 1997).
26. T. Cottier and F. Schefer, "Switzerland: The Challenge of Direct Democracy," in J. Jackson and A. Sykes (eds.), Implementing the Uruguay Round (Oxford: Clarendon Press, 1997), Chapter 9.
27. D. Leebron, "Implementation of the Uruguay Round Results in the United States," in J. Jackson and A. Sykes (eds.), Implementing the Uruguay Round (Oxford: Clarendon Press, 1997), Chapter 6.
28. While this approach was heavily criticised at the time - on the ground, inter alia, of being undemocratic - it should also be noted that, as it happened, the measure did gain the Senate's approval by more than the twothirds majority that treaties require under the Constitution. For some discussion, see J. Jackson, "The Great 1994 Sovereignty Debate: United States Acceptance and Implementation of the Uruguay Round Results," in his The Jurisprudence of the GATT and the WTO (New York: Cambridge University Press, 2000), Chapter 19.
29. For sovereign legal purposes, the fiction may be stipulative - it may hold for any group of people, however temporally or otherwise disconnected, as long as they are (were) all inhabitants of the same constitutional order. This merely reinforces the distinction between sovereignty and democratic legitimacy.
30. Compensation may take various forms. The nation rescinding its decision could liberalise equivalent service sectors in exchange or, as a last resort, the nation whose service providers are affected by the change could withdraw equivalent market access from the rescinding nation (i.e., from its service providers).
31. The quotation is from an introductory description of the GATS. See http:// www.wto.org/english/thewto-e/whatis-e/tif-e/agrm6-e.htm (accessed 12 March 2004).
32. Notice that this argument begins from the legislature's disability (lack of a power) to modify or dissolve an effectively compulsory obligation. This disability certainly raises a problem for future generations if the democratic legitimacy of an obligation requires that it enjoy a popular mandate. But a problem for effectively compulsory obligations will arise on any account on which democratic legitimacy seems to require that the people (or its representatives) retain the power to modify the obligations to which it is subject, whether or not the account sanctions the specific requirement of a popular mandate. (That is why I said my analysis would not depend on the simplified language of popular mandates. See note 16 above.) For an account of democratic legitimacy that requires the people to have the power to modify the obligations to which it is subject, but does not require these obligations to enjoy a popular mandate, see, e.g., P. Pettit, Republicanism (Oxford: Clarendon Press, 1997), Chapter 6.
33. This is rhetorically correct, though technically imprecise. To be precise, the GATS obligations are tantamount to a constitutional disability to have a health insurance sector with anything other than a certain minimum degree of privatisation.
34. Just how higher standards of democratic scrutiny contribute to the legitimacy of effectively compulsory obligations for future generations remains an open question. In my view, the answer turns on the effect higher standards (are likely to) have on the content of the obligations that can be made effectively compulsory. But nothing in the present discussion requires one answer to this question rather than another, as long as one agrees that constitutional amendments must be held to a higher standard of democratic scrutiny. For an instructive discussion of the largely salutory effects that liability to the prospect of a popular referendum had on Switzerland's position(s) in the GATS negotiations, see Cottier and Schefer, "Switzerland: The Challenge of Direct Democracy," pp. 340-342 and 354-363.
35. This is not, of course, to say that such procedures suffice to legitimise constitutional obligations democratically. It seems to me that the problem of how constitutional obligations gain their legitimacy is actually one to which insufficient attention has been paid. For some discussion of related issues, see Gopal Sreenivasan "Judicial Review and Individual Self-rule," Revista Argentina de Teoría Jurídica 2 (2001), pp. 1-13, www.utdt.edu/departamentos/derecho/publicaciones/rtj1/ primeraspaginas/2nro2.htm (accessed 12 March 2004).
36. WTO, GATS: Fact and Fiction (2001), pp. 5, 13-14.
37. Earlier versions of this paper were presented to a conference on "Globalisation, Justice, and Health," organised by the Department of Clinical Bioethics at the National Institutes of Health and held in Washington, DC; and to the Mini-Conference on Global Justice held in conjunction with the Pacific Division meeting of the American Philosophical Association in Pasadena, California. For helpful comments, I am grateful to Richard Arneson, Avi Astor, Margaret Battin, Leah Belsky, Ezekiel Emanuel, David Estlund, Henry Richardson, and the audiences on both occasions.