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The Impact of International Trade in Healthcare Services under GATS on the Right to Health: A Study of Medical Tourism in India

Gola, Swati

[Thesis]. Manchester, UK: The University of Manchester; 2016.

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Abstract

Healthcare services, traditionally provided by the government in a welfare state, have become a tradable commodity in the era of globalisation. Indeed, globalisation has led to the creation of a new international healthcare market with increased participation of the private sector, assisted with enhanced mobility of health professionals, service providers and patients across borders. Soon after its inception, the 1995 General Agreement on Trade in Services (GATS) has come under fire from critics, especially for its broad scope and inclusion of basic services like healthcare, water or education that fulfil social objectives. In establishing a multilateral legal framework, GATS mandates progressive liberalisation of trade in services among the WTO members through successive rounds of negotiations. Since GATS applies to the measures by WTO Members affecting trade in services (whether taken at central, regional or local government level), inclusion of health services therein has raised concern regarding a government’s ability to regulate health-related services. Availability and accessibility of healthcare services is crucial from the right to health perspective. The International Convention on Economic Social and Cultural Rights (ICESCR) obligates its Member States to respect, protect and realise progressively and to the maximum of its available resources ‘the right to the highest attainable standard of health.’ When a WTO Member is also a signatory to the ICESCR, the question arises whether the legislative framework regulating healthcare services under GATS conflicts with the said Member’s obligation to respect, protect and fulfil the right to health. The present thesis attempts to answer this question through an analysis of GATS and the right to health norms within the framework of conflict of norms in international law. Although norm conflicts are generally assessed in terms of a legal relationship between a given State with another State, the present thesis focuses on a single State bound by both sets of rules where compliance with both obligations may/does lead to a legal, social or factual conflict.