Kējì Fǎxué Pínglùn (Dec 2004)
國民健康與WTO規範 ― 以我國推動之「國血自足」政策為探討中心 National Health and WTO Rules − Focusing on the Study of the Blood Self-sufficiency Policy Promoted by Our Country
Abstract
血液製品屬於生物製品，主要指以人類血液爲原料，採用生物科技或分離純化技術製備的生物活性製劑。1975 年WHO 曾以決議建議推行使用國人血液及血漿之自給自足的政策，嗣後為多國採納而予立法實施。我國並非聯合國成員，亦非WHO 會員國，但為維護國民健康及積極與世界接軌，目前正推動是項政策。惟WHO 所建議實施之以保護人民健康為宗旨之國血自足措施，因對外國血液產品，產生一定程度之排擠，卻可能與WTO 的自由貿易宗旨發生衝突。由於我國已是 WTO 會員，理應遵循WTO 國民待遇等不歧視原則，若實行國血自足政策則可能引發違反WTO 規範義務之疑慮。惟由WTO 案例法顯示，其已較能承認各國為維護公共利益所為措施之正當性，而在適用法律上，已作更為平衡與彈性的處置。本文將比較各國相關政策，研究WTO有關法理，並特別藉前例之解析，以助釐清我國立法政策是否與 WTO 規範相容，並提供一些政策建議。 Blood-related products derive from living organisms. They refer to the human blood based bio-active biotechnology products, which are manufactured by purification steps. In 1975, the World Health Organization (WHO) of the United Nations (U.N.) adopted a decision, recommending the alleged “blood selfsufficiency” policy. Since then, some countries have endorsed such a policy and incorporated it into their legislations. Taiwan is neither a member of the U.N., nor of the WHO. Nevertheless, the government has been promoting the policy for several years with a view to the preservation of public health and the conformity with the global trend. Given the certain degree of the exclusion of foreign products caused by the implementation of the policy, there seems to be a possible conflict between the measure and the object of trade liberalization honored by the World Trade Organization (WTO). As a member of the WTO, we are, no doubt, bound by non-discrimination principles, including, inter alia, national treatment, embodied in the institution. There might be a concern regarding the potential breach of Taiwan’s obligation under WTO rules if the blood self-sufficiency policy is in effect. But, the case law of the WTO has indicated its increasing tendency to recognize the legitimacy of applying measures for pursuing public interests and policy, including the issue of national health. As a result, WTO inclines to apply its rule in a more balanced and flexible manner. The article will look into the practices of countries exercising the policy. Then, by studying relevant WTO jurisprudence, especially on the analysis of its precedence, it aims at clarifying whether our legislation and policy may be compatible with WTO rules. Finally, some suggestions on the current policy and legislation will be offered.
