SRG JHSPH-MTCC 2014 Harmonization Between International Trade Policy with The Right to Health’s Standard: Case Study on WTO-DSB on US-Clove Cigarettes Researchers: Dodik Setiawan Nur Heriyanto, S.H., M.H. (Head) Eko Rial Nugroho, S.H., M.H. (Member) Phone: +62 8122777349 / E-mail: dodiksetiawan@gmail.com E-mail: dodiksetiawan@gmail.com
Dominancy of Kretek Industries in Indonesia SRG JHSPH-MTCC 2014 Dominancy of Kretek Industries in Indonesia Kretek commanded 85-90% of entire cigarrete market More 500 independent kretek manufacturers (employs 180.000 people and 10 million people indirectly). Largest Indonesian revenue. (Gilman and Zhou: 2004) Hospitals, researcher and etc. 2015 © Dodik Setiawan Nur Heriyanto Copyright E-mail: dodiksetiawan@gmail.com
Chance in International Trade Clove Cigarettes Importir Exportir 2015 © Dodik Setiawan Nur Heriyanto Copyright E-mail: dodiksetiawan@gmail.com
SRG JHSPH-MTCC 2014 Innovative Content DSB WTO guideline in facing the right to health issue DSB WTO awareness on the World Tobacco Control Policy (FCTC) Conceptual harmonization by human rights approach as the meeting point between the right to health and the right to trade in future DSB WTO disputes Rasio decidendi – judges reasoning. 2015 © Dodik Setiawan Nur Heriyanto Copyright E-mail: dodiksetiawan@gmail.com
SRG JHSPH-MTCC 2014 Research Question Why does WTO DSB upheld that the US ban on clove cigarettes import contradict with the non discrimination? How to harmonize the right to health standard with the right to trade? Is there any legal consequences of the DSB report on the United States ban on clove cigarettes import? No Political Will 2015 © Dodik Setiawan Nur Heriyanto Copyright E-mail: dodiksetiawan@gmail.com
SRG JHSPH-MTCC 2014 Research Objective To describe about development of tobacco business industry and its influence to international trade relations between states; To provide new understanding arguments whether WTO ruling give uncertainty implementation in regard with human health protection issues and support the MPOWER strategy under World Health Organization; and to give deep concern about foreign community awareness that cigarettes influences bad effect for young generations and health No Political Will 2015 © Dodik Setiawan Nur Heriyanto Copyright E-mail: dodiksetiawan@gmail.com
SRG JHSPH-MTCC 2014 Research Methodology NORMATIVE APPROACH This research will use legal normative approach. With this methodological approach, this research will use legal materials as the main data to analyze the problems occured. The legal materials will be analyzed in quantitative way to obtain a comprehensive conclusions to solve the problem’s formulation in this research. Rasio decidendi – judges reasoning. 2015 © Dodik Setiawan Nur Heriyanto Copyright E-mail: dodiksetiawan@gmail.com
US Ban on Clove Cigarette’s Import SRG JHSPH-MTCC 2014 US Ban on Clove Cigarette’s Import US Family Smoking Prevention and Tobacco Control Act 2009. Upheld by Appellate Body Worldwide critics Prohibition to ban Bans Flavored Cigarettes (including Kretek from Indonesia) to be imported in US but still exempted menthol cigarettes DSB Panel rulling: clove cigarettes and menthol cigarettes are like products Hospitals, researcher and etc. This bans challenged by Indonesia before DSB WTO Breach National Treatment (Article TBT Agreement, GATT 1994) 2015 © Dodik Setiawan Nur Heriyanto Copyright E-mail: dodiksetiawan@gmail.com
National Legislations SRG JHSPH-MTCC 2014 How to harmonize? Right to health ICESCR Art. 25 par. (1) UDHR CRC CRPD Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control FCTC MPOWER No Political Will National Legislations International Usages 2015 © Dodik Setiawan Nur Heriyanto Copyright E-mail: dodiksetiawan@gmail.com
Human Right Based Approach SRG JHSPH-MTCC 2014 Human Right Based Approach Trade Disputes WTO Rules (GATT) WTO DSB Article XX (b) Duty to Respect The Right to Health measure Human Rights Approach No Political Will Duty to Protect Duty to Fulfill Vienna Convention on The Law of Treaties 1969 FCTC State Obligation 2015 © Dodik Setiawan Nur Heriyanto Copyright E-mail: dodiksetiawan@gmail.com
General Comment ICESCR No.14 SRG JHSPH-MTCC 2014 General Comment ICESCR No.14 ICESCR: International Convention on Economic, Social, and Cultural Rights Violations of the obligation to protect follow from the failure of a state to take all necessary measures to safeguard persons within their jurisdiction from infringements of the right to health by third parties. This category includes such omissions as the failure to regulate the activities of individuals, groups or corporations so as to prevent them from violating the right to health of others; the failure to protect consumers and workers from practices detrimental to health, for example by employers and manufacturers of medicines or food; the failure to discourage production, marketing and consumption of tobacco, narcotics and other harmful substances. No Political Will 2015 © Dodik Setiawan Nur Heriyanto Copyright E-mail: dodiksetiawan@gmail.com
Legal Consequences of WTO DSB Ruling on US-Clove Cigarettes SRG JHSPH-MTCC 2014 Legal Consequences of WTO DSB Ruling on US-Clove Cigarettes Legal uncertainty in promoting Tobacco Control policy worldwide No grave intention of state obligation to protect the right to health Make FCTC less effective and binding power Less justice result to achieve the real goals of world trade relations Rasio decidendi – judges reasoning. 2015 © Dodik Setiawan Nur Heriyanto Copyright E-mail: dodiksetiawan@gmail.com
SRG JHSPH-MTCC 2014 Conclusion US-Clove Cigarettes Case takes world attention because of contradiction effort between states obligation in controlling cigarettes market on behalf of public health and the trade interest. The existence of art. XX (b) GATT indicates that right to health shall have priority use in analyzing related cases The idea of using rights based approach in WTO DSB decision making process The using of FCTC to interpret cigarette cases in WTO DSB US-Clove Cigarettes Case will cause legal uncertainty of FCTC implementation and injustice trade. 2015 © Dodik Setiawan Nur Heriyanto Copyright E-mail: dodiksetiawan@gmail.com
SRG JHSPH-MTCC 2014 Recommendation WTO and WHO shall work together in creating single legal instrument to harmonize the goals between the two organizations. Indonesia and US shall ratify the FCTC to support their common effort in tobacco control in domestic level 2015 © Dodik Setiawan Nur Heriyanto Copyright E-mail: dodiksetiawan@gmail.com