Regulatory Autonomy to Prevent Cancer under Australia s Trade and Investment Framework Jonathan Liberman GELN Symposium 19 May 2016
Overview Cancer prevention and regulatory autonomy How we speak about regulatory autonomy Australia s tobacco plain packaging Tobacco and the TPP Approaches to regulatory space
Legal training and capacity-building International legal training program build capacity in the effective use of law for cancer/ncd prevention and control, with a focus on developing coherence between health, trade, investment, sustainable development and human rights mostly for government lawyers from low- and middleincome countries run in collaboration with WHO and the Secretariat to the WHO FCTC
Legal training and capacity-building primary supporters Australian Department of Foreign Affairs and Trade, Cancer Council Australia supporters American Cancer Society Cancer Action Network, Norwegian Ministry of Foreign Affairs, WHO FCTC Secretariat, WHO Regional Office for Africa, WHO Regional Office for the Eastern Mediterranean, WHO Regional Office for the Western Pacific, William L Rudder Trust
Cancer prevention many cancers are preventable most people seem to agree that preventing cancer is a good thing cancer risk factors include tobacco asbestos alcohol obesity
Regulation and cancer prevention effective cancer prevention includes regulatory measures, eg restrictions / bans on advertising, promotion and sponsorship regulation of product content mandating consumer information regulation of packaging and labelling taxation
TAs and IAs and regulation trade / investment agreements set conditions / constraints on regulation (eg) non-discrimination technical barriers to trade intellectual property expropriation fair and equitable treatment process / notification requirements
How do we speak about regulatory autonomy? (Note: speaking here only about how regulatory autonomy is affected by international instruments, not by purely domestic legal / constitutional arrangements)
Regulatory autonomy cannot be quantified, can only be described is the sum of multiple parts found in many different places, interacting in complex ways, eg treaties and other international instruments (human rights, environmental, health, trade, investment) jurisprudence (of many different bodies) individuals / organisations with power / influence
Regulatory autonomy not surprising that people understand and describe it very differently a range of considerations likely to inform approaches knowledge field of expertise mandate (organisational / personal) ideology professional and social networks politics self-interest (organisational / personal)
Australia s tobacco plain packaging
Winfield packs from the late 1980s, late1990s, late 2000s and December 2012 Source: Quit Victoria collection
Marlboro packs from the late 1980s, late1990s, late 2000s and December 2012 Source: Quit Victoria collection
Australia s tobacco plain packaging announced April 2010 enacted Nov 2011 upheld by HCA Aug 2012 fully implemented Dec 2012 investment tribunal decided no jurisdiction Dec 2015 award published May 2016 WTO challenges ongoing
It has almost everything a tobacco control measure enacted by a democratically elected Parliament upheld by the highest domestic court when challenged by 4 major tobacco multinationals supported by a WHO treaty with (now) 180 Parties based on evidence when introduced; evidence since implementation shows its working
Tobacco and the TPP
TPP PM challenge v Aus PM challenge v Uruguay First negotiating round March 2010 Notice of claim June 2011 Notice of claim Feb 2010 Decision on jurisdiction July 2013 conclude Sept 2015 text released Nov 2015 Tribunal decision on jurisdiction Dec 2015
A poster child tobacco becomes one of the poster children for criticism of the TPP / ISDS new people and organisations start to become very interested in the relationships between tobacco control and trade and investment agreements
President Obama, Dec 2014 Remarks by the President at Meeting of the Export Council (Dec 11, 2014) https://www.whitehouse.gov/the-pressoffice/2014/12/11/remarks-president-meeting-export-council
John Oliver, Feb 2015
Trans-Pacific Partnership Agreement
Trans-Pacific Partnership Agreement
Gets swept up inside many different agendas, narratives, campaigns
Approaches a range of considerations likely to inform approaches knowledge field of expertise mandate (organisational / personal) ideology professional and social networks politics self-interest (organisational / personal)
Approaches to regulatory space 1. Regulatory space for public health: Australia (and other) countries should implement effective regulatory measures to prevent cancer there are thousands of trade and investment agreements in existence these do not prevent governments from implementing non-discriminatory effective, evidence-based public health measures
Approaches to regulatory space this approach tends to entail highlighting of regulatory space (provisions in agreements, jurisprudence) empowering of governments to implement regulatory measures and not be intimidated by threats of litigation
Approaches to regulatory space this approach tends to entail study of trade and investment law and drawing of lessons to strengthen public health regulation (inc its likelihood of withstanding legal challenge in the event that it happens) invocation of other instruments (WHO FCTC, health, sustainable development, human rights) as important and powerful
Approaches to regulatory space this approach tends to entail focus on the importance of informationsharing, capacity-building and resources to support countries to regulate endeavouring to bridge the divides between health and trade / investment seeking coherence and mutual understanding
We will foster a dynamic and well-functioning business sector, while protecting labour rights and environmental and health standards in accordance with relevant international standards and agreements and other ongoing initiatives in this regard, such as the Guiding Principles on Business and Human Rights and the labour standards of the ILO, the Convention on the Rights of the Child and key multilateral environmental agreements. (SDGs 67, AAA 37)
Approaches to regulatory space 2. Trade / investment agreements are a threat to public health (inc cancer prevention) they prioritize trade, investment, commercial interests above all else (inc public health) they prevent governments from regulating for public health (and other public interests) they represent a surrender of national sovereignty to multinational corporations
Approaches to regulatory space this approach tends to entail an emphasis on the constraints on regulation an emphasis on the legal risks to governments of regulating a diminution of the importance and power of other instruments (WHO FCTC, health, sustainable development, human rights)
Approaches to regulatory space this approach tends to entail (cont d) an emphasis on regulatory chill a highlighting of the costs of litigation an emphasis on conflict (and a conflation of conflicts with conflict in the legal sense)
Approaches to regulatory space this approach sometimes entails lists of all the things trade / investment treaties could do (with little or no qualification as to the likelihood or significance) discarding of recognitions of right to regulate in treaties (eg that s just in the preamble, it doesn t actually mean anything ) and in case law (not mentioned)
Approaches to regulatory space this approach sometimes entails overstatement of thresholds for protection (eg any time a corporation s profits are affected ) idea that anything not mentioned in a trade / investment agreement (eg another treaty) is irrelevant / meaningless
So?
Cancer Council Victoria (McCabe Centre for Law and Cancer) 2016. No part of this publication may be reproduced without written permission. The materials provided are for general informational purposes only and do not constitute legal advice.