Harnessing trade and investment agreements to promote public health

There is an underlying tension between the goals of trade liberalisation and a nation's sovereign right to regulate on matters of public health. In terms of trade in goods, Article XX(b) of the General Agreement on Tariffs and Trade (GATT) allows for measures necessary to protect human health, as one of the general exceptions. The increasing proliferation of comprehensive Free Trade Agreements (FTA) also contains general exception clauses to protect human health. International Investment Agreements contain provisions carving out an exception for tobacco products, from the scope of Investor State Dispute Settlement (ISDS) claims against the host State. The aim of this article is to examine if the public health exceptions in FTAs differ from those under the GATT, and whether they can be used as an avenue for effective regulation. In the context of investment, the article examines if a ‘carve‐out’ from ISDS is a feasible option. The article concludes by observing that it may be difficult for FTAs to provide for broader regulatory autonomy to States, given the resort to the World Trade Organization (WTO) jurisprudence in FTA dispute settlement. Effectively, measures to regulate alcohol for the protection of public health may have to be designed and structured in a WTO compatible manner. In terms of ISDS, a ‘carve‐out’ from dispute settlement may provide increased regulatory space but would depend on whether consensus can be achieved in this regard. States should approach the regulation of alcohol in a comprehensive manner addressing potential challenges under the trade and investment regimes.