1. 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: /

2. 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 people and 10 million people indirectly).
Largest Indonesian revenue.
(Gilman and Zhou: 2004)
Hospitals, researcher and etc.
2015 © Dodik Setiawan Nur Heriyanto Copyright

3. Chance in International Trade
Clove Cigarettes
Importir
Exportir
2015 © Dodik Setiawan Nur Heriyanto Copyright

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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