International Investment Law and Non-Communicable Diseases

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Law and non-communicable diseases
Pictured: Jure Zrilic and Amandine Garde, the conference organisers, with delegates.*

* Benn McGrady (World Health Organization), Valentina Vadi (Lancaster University), Charles-Emmanuel Côté (Laval University), Paula O’Brien and Andrew Mitchell (Melbourne University).

On the 10th and 11th May 2018, the Law & Non-Communicable Diseases Unit (or Law & NCD Unit) held a successful one-and-a-half-day conference at the University of Liverpool Campus in London to discuss the relationship between NCD prevention policies and international investment law. In building upon previous events which the Unit organised on the role of legal instruments in preventing NCDs, the conference made a timely and significant contribution to the growing debate on the prevalence of private international investment and its consequential impact on the ability of host States to develop their own domestic policies to prevent the occurrence of NCDs.

NCDs are responsible for almost 70% of all deaths worldwide, including 82% of the 16 million premature deaths which occur in low- and middle-income countries. They have devastating consequences for individuals, families and communities. They threaten to both overwhelm health systems and encumber development. However, the advent of globalisation and economic liberalisation has dramatically increased the influence and reach of international business actors. In the field of public health, this has resulted in the intensification of foreign direct investment by the tobacco, alcohol and food industries; all of which have a direct correlation with the proliferation of NCDs. As foreign investors can bring compensation claims against host States for any measure that adversely affects investment and violates an investment treaty obligation, the nexus between private investment and public health becomes apparent. Thus, State efforts to regulate the tobacco, alcohol and food industries to prevent NCDs and promote public health could give rise to expensive arbitrations. This is clearly illustrated by the recent claims challenging tobacco control legislation in Australia and Uruguay. The regulation of alcoholic beverages and unhealthy food could face similar challenges under international investment law. Therefore, this conference examined how international investment law can affect State regulatory autonomy in designing and implementing measures for preventing NCDs, and contributed as such to building legal capacity for the prevention of NCDs.

With six panels convened over the course of the conference, the interface between international investment law and the ability of States to adequately regulate for the prevention of NCDs was thoroughly examined from contributors representing a wide array of backgrounds and countries. The conference commenced with an introduction to the relationship between international investment law and NCD prevention, focusing on the nature of this relationship through specific case studies. Succeeding panels examined the roles of intellectual property law, the human rights obligations of corporate actors, the impact of investment law on host States’ regulatory processes, the legal standard of ‘fair and equitable treatment’, the meaning and use of evidence to inform policy, and various approaches from different regional perspectives, not least Latin America and Eastern Europe, to assess how the legal boundaries between private investment and public health policy are best navigated.

Overall, through its extensive examination of the many legal issues arising as a result of the relationship of international investment law with NCD prevention, the conference further highlighted the need for the development and implementation of multi-sectoral and multi-disciplinary policy strategies to adequately permit States to regulate effectively in furtherance of public health objectives, and NCD prevention specifically. By drawing on the legal challenges which have occurred and may occur in the future, and by examining the legal standards which underpin the operable impact of the thousands of international investment treaties in force, the conference unpacked both a complex and entangled area of law, making it accessible and understandable to the broad range of delegates who attended, from academic colleagues with a background in either law or public health to a range of public health actors, including international organisations, public health agencies and civil society organisations.