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A Global Legal Instrument for Alcohol Control: Options, Prospects and Challenges

Published online by Cambridge University Press:  08 September 2020

Gian Luca BURCI Open the ORCID record for Gian Luca BURCI [Opens in a new window]
Gian Luca BURCI*
Affiliation:
Adjunct Professor of International Law, Graduate Institute of International and Development Studies, Geneva, Switzerland; email: [email protected].
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Abstract

Alcohol is the sole major psychoactive substance with a huge negative public health and social impact without some form of international control grounded in a binding treaty. While existing rules of international law, in particular in the economic field, favour liberalisation and may hinder strong national alcohol control measures, we may be witnessing a turning of the tide due to the growing mobilisation against non-communicable diseases. The Framework Convention on Tobacco Control has been a ground-breaking development in this sense, and has led policymakers and advocates in a number of countries to raise the possibility of a similar convention on alcohol control. The present contribution compares tobacco and alcohol from this perspective and considers the feasibility of a dedicated international convention. It concludes that the political prospects of a movement in this direction are very dim at the present time; however, policy developments on other health problems and theoretical models emerging from constructivist international relations scholarship may open up promising perspectives for considering normative and institutional approaches that could strengthen the existing legal framework and facilitate political processes towards stronger forms of legalisation of global alcohol control.

Type
Special Issue on the Global Governance of Alcohol
Information
European Journal of Risk Regulation , Volume 12 , Special Issue 2: Symposium on COVID-19 Certificates and Special Issue on the Global Governance of Alcohol , June 2021 , pp. 499 - 513
Copyright
© The Author(s), 2020. Published by Cambridge University Press

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References

1 WHO, Global Strategy to Reduce the Harmful Use of Alcohol (21 May 2010), 63rd World Health Assembly, resolution WHA63.13.

2 WHO, Global Status Report on Alcohol and Health (2018) p xv.

3 B McGrady, Trade and Public Health (Cambridge, Cambridge University Press 2011); T Voon, AD Mitchell and J Liberman (eds), Regulating Tobacco, Alcohol and Unhealthy Foods (Abingdon, Routledge 2014).

4 Political Declaration of the High-Level Meeting of the General Assembly on the Prevention and Control of Non-communicable Diseases, UNGA res. 66/2 (19 September 2011).

5 WHO Global Strategy, supra, note 1, 16.

6 ibid, 15–16.

7 ibid, 14–15.

8 ibid, 13–14.

9 ibid, 17.

10 WHO Framework Convention on Tobacco Control (adopted 21 May 2003, entered into force on 27 February 2005), 2302 UNTS 166.

11 Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) (adopted on 8 March 2018, entered into force 30 December 2018), and Annex 8 <https://www.dfat.gov.au/trade/agreements/not-yet-in-force/tpp/Pages/tpp-text-and-associated-documents> (last accessed 25 March 2020).

12 Council Directive 92/83/EEC of 19 October 1992 on the harmonization of the structure of excise duties on alcohol and alcoholic beverages [1992] OJ L 316/21.

13 Council Directive 92/84/EEC of 19 October 1992 on the approximation of the rates of excise duty on alcohol and alcoholic beverages [1992] OJ L 316, 31.

14 Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services [2010] OJ L 95/2.

15 Codex Alimentarius Commission, Report of the Forty-fifth Session of the Codex Committee on Food Labelling (July 2019), REP19/FL.

16 Notable examples of European Union jurisprudence, both on referral from national courts, are (1) Konsumentombudsmannen v Gourmet AB (2001), C-405/98, 8 March 2001, where the European Court of Justice found in favour of a Swedish law limiting advertising space for imported alcohol products to limit consumer exposure; and (2) Scotch Whisky Association and Others v The Lord Advocate and The Advocate General for Scotland, C-333/14.

17 A good summary is offered in S Zhou and J Liberman, “The global tobacco epidemic and the WHO Framework Convention on Tobacco Control – the contributions of the WHO’s first convention to global health law and governance”, in GL Burci and B Toebes (eds), Research Handbook on Global Health Law (Cheltenham, Edward Elgar Publishing 2018) p 340.

18 The links to those cases can be found at <https://www.wto.org/english/tratop_e/dispu_e/dispu_subjects_index_e.htm> (last accessed 25 March 2020).

19 Note 1, paras 13 and 17.

20 DH Jernigan and PJ Trangenstein, “What’s next for WHO’s global strategy to reduce the harmful use of alcohol?” (2020) 98 Bulletin of the World Health Organization 222–23.

21 J Klabbers, “The Normative Gap in International Organizations Law: The Case of the World Health Organization” (2019) 16 International Organizations Law Review 272.

22 This approach was validated from an economic perspective by an influential World Bank report published at the outset of the FCTC negotiations: World Bank, Curbing the Epidemic: Governments and the Economics of Tobacco Control (Washington, DC, World Bank 1999).

23 R Room, “International control of alcohol: alternative paths forward” (2006) 25 Drug and Alcohol Review 581.

24 Interview with a senior WHO official, 12 July 2019.

25 J Liberman, “The Power of the WHO FCTC: Understanding Its Legal Status and Weight” in AD Mitchell and T Voon (eds), The Global Tobacco Epidemic and the Law (Cheltenham, Edward Elgar Publishing 2014) pp 48–63.

26 Conference of the Parties to the WHO Framework Convention on Tobacco Control, “Control and prevention of smokeless tobacco products” (28 May 2014) FCTC/COP/6/9.

27 This ideological approach is reflected in the Framework of Engagement with Non-State Actors, adopted by WHO in 2016: WHO, 69th World Health Assembly, “Framework of Engagement with Non-state Actors” (28 May 2016) WHA69.10.

28 Room, supra, note 23, 581.

29 See, in the present issue, J Kelsey, “Digital Trade Agreements and Regulatory Autonomy”.

30 <https://www.fctc.org/about-us/> (last accessed 31 July 2020).

31 GL Burci and C-H Vignes, World Health Organization (Alphen aan den Rijn, Kluwer Law International 2004) p 155.

32 GL Burci, “Health and Infectious Disease”, in TG Weiss and S Daws (eds), Oxford Handbook on the United Nations (2nd ed, Oxford, Oxford University Press 2018) pp 679–94.

33 WHO, “Report of the Review Committee on the Role of the International Health Regulations (2005) in the Ebola Outbreak and Response” (13 May 2016) A69/21.

34 M Finnemore and K Sikkink, “International Norm Dynamics and Political Change” (1998) 52 International Organization 887.

35 WHO Executive Board, “Accelerating action to reduce the harmful use of alcohol” (7 February 2020) decision EB146(14).

36 Room, supra, note 23, 590–91.

37 Convention on Psychotropic Substances (adopted 21 February 1971, entered into force 16 August 1976) 1019 UNTS 175.

38 ibid, Art 2.

39 Main reference here is to KW Abbott and D Snidal, “Hard and Soft Law in International Governance” (2000) 54 International Organization 421. Their approach is confirmed and developed in G Shaffer and M Pollack, “Hard and Soft Law”, in JL Dunoff and MA Pollack (eds), Interdisciplinary Perspectives on International Law and International Relations (Cambridge, Cambridge University Press 2013) p 197.

40 Abbott and Snidal, supra, note 39, 426–34.

41 The text of the guidelines can be found at <https://www.who.int/fctc/treaty_instruments/adopted/guidel_2011/en/> (last accessed 25 March 2020).

42 Abbott and Snidal, supra, note 39, 434–50.

43 WHO, “WHO Global Code of Practice on the International Recruitment of Health Personnel” (21 May 2010), WHA63.16.

44 Para 2.2 of the Code reads as follows: “The Code is global in scope and is intended as a guide for Member States, working together with stakeholders such as health personnel, recruiters, employers, health-professional organizations, relevant subregional, regional and global organizations, whether public or private sector, including nongovernmental, and all persons concerned with the international recruitment of health personnel”. Moreover, para 9.4 enables the WHO Secretariat to “consider reports from stakeholders as stipulated in Article 2.2 on activities related to the implementation of the Code”.

45 This possibility should be strongly constrained and open to scrutiny by Member States under the Framework of Engagement with Non-State Actors (note 27).

46 Global Strategy, supra, note 1, 21–22.

47 The strong divide between arguments in favour of strong intellectual property protection to promote pharmaceutical innovation on the one hand and contrary arguments based on the need to better protect and promote the right to health on the other is reflected in a controversial report of a UN high-level panel: United Nations, “Report of the United Nations Secretary-General’s High-Level Panel on Access to Medicines” (2016).

48 A useful conceptualisation of the possible antagonistic relationship between “hard” and “soft” law is provided in Shaffer and Pollack, supra, note 39, 209–13.

49 OA Cabrera and LO Gostin, “Human Rights and the Framework Convention on Tobacco Control: Mutually Reinforcing Systems” (2011) 7 International Journal of Law in Context 285.