Global Health Law Committee of the International Law Association

Report on Activities at Sydney Biennial - August 2018

Report on Activities at Sydney Biennial - August 2018

ILA Sydney Report The Global Health Law Committee, co-Chaired by Profs. Frederick Abbott and Brigit Toebes, convened its public working session on Tuesday morning, August 21, 2018. The Committee submitted its Report in advance of the meeting, and the co-Chairs briefly outlined the substance of the Report. This was followed by substantive presentations by Prof. Toebes addressing the identification and development of general principles of global health law, by Dr. Pedro Villarreal on the relationship between global health law and international environmental law, and by Prof. Abbott's presentation on transparency as a principle of global health law. The working session was well attended by non-members, and useful ideas for future work of the Committee emerged from interventions by those participants. For example, the suggestion was made that the Committee might further explore the rule system governing collection and use of health data that involves potential scientific benefits (e.g. AI-assisted R&D), on one side, and interference with rights of personality, privacy and related discrimination issues (e.g., insurance coverage), on the other. Data flows are often trans-border, and this points to an important international legal dimension that might be taken up by the Committee. There was substantial consensus that public health concerns (i.e. the effects) are an increasingly important dimension of environmental impacts (i.e. the causes), and that while so far international law has tended to focus on environmental causes, there is room for further exploring the legal implications of public health effects (e.g., a precautionary principle with respect to health). The Global Health Law Committee was also responsible for organizing a “side event” on Tuesday afternoon discussing the WTO Tobacco Panel Report.

In June 2018, a WTO dispute settlement Panel issued a Report on the complaints filed with respect to Australia’s Tobacco Plain Packaging (TPP) legislation by Cuba, the Dominican Republic, Honduras and Indonesia. The Panel rejected all claims of WTO inconsistency in an 880+ page decision. There were two main sets of claims, those under the Agreement on Technical Barriers to Trade (TBT Agreement), and those under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). The Global Health Law Committee organized an expert panel to assess the Panel Report. This was a timely and “geographically appropriate” occasion given Australia’s central role in the dispute, and we were fortunate to include among the panelists several individuals who directly participated in the dispute settlement process, both from a legal and scientific angle. The Sydney panel was comprised of Jonathan Liberman (McCabe Centre for Law and Cancer, Australia), Edward Kwakwa (World Intellectual Property Organisation, Switzerland), Natasha Spisbah (Department of Foreign Affairs and Trade, Australia), Prof. Brigit Toebes (University of Groningen, Netherlands) and Prof. Tania Voon (University of Melbourne, Australia). Prof. Abbott chaired this expert panel session. The good news, of course, is that the WTO Panel reached the legally correct result, though that was hardly a surprise given the weakness of the complaining parties’ position -- which weakness was manifest already from the outset of the case back in 2012. One interesting question discussed by the panelists was whether the tobacco producers nevertheless enjoyed some success by virtue of the 6-year time span for issuance of the panel report, exceeding WTO procedural rules by five years (though somewhat less by customary practice), thereby managing to delay adoption of similar TPP legislation by other countries. Opinions were mixed on that, with some expressing the view that after about two years countries contemplating new legislation had stopped worrying about the WTO. Others thought that there were concrete examples of government delays awaiting the outcome. The case illustrated the complex science surrounding smoking cessation, and the importance of a multipronged approach to reducing tobacco use. It demonstrated that the TBT Agreement is not a “model of clarity”, particularly regarding some rules surrounding burden of proof, and the disputing parties spent considerable time debating which WTO Member had the burden, and what were the potential consequences of burden shifting. Considerable attention was paid to the WTO Panel determination that the WHO Framework Convention on Tobacco Control did not constitute a “relevant international standard” for purposes of establishing a rebuttable presumption that Australia’s legislation did not constitute an unnecessary obstacle to trade, and whether that determination raised questions regarding WTO’s approach to public health matters. On the TRIPS Agreement, the “main” question was whether Australia’s TPP legislation “unjustifiably” encumbered the rights of trademark owners under Article 20. Again, the WTO Panel reached the right (i.e. no) result, but there was some discussion in Sydney about the multi-part analytic framework employed. Interestingly, the complaining countries generally conceded that the TRIPS Agreement does not establish a “right to use” trademarks yet sought in various ways to infer positive from otherwise negative rights. The WTO Panel rejected those efforts. An appeal of the Panel Report was initiated by the time of the Sydney Biennial (Honduras, more recently followed by Dominican Republic), and Prof. Voon discussed the issues raised in the Honduras appeal filing. A number of insightful interventions were made from the floor as part of the follow-on Q & A.

 

Report of the Global Health Law Committee for 2018 ILA Sydney Biennial

Report of the Global Health Law Committee for 2018 ILA Sydney Biennial

Second Report of the Global Health Law Committee prepared for the International Law Association 2018 Sydney Biennial Conference, August 19-24, 2018

draft Report to be discussed and proposed for adoption

Committee Meeting - Geneva March 13, 2017

WHO Health Emergencies Program

WHO Health Emergencies Program - March 2017 Update

 

WHO Health Emergencies Program Documentation http://who.int/emergencies/en/

UPDATE | WHO Health, Emergencies Programme: progress and priorities, Financing dialogue, 31 October 2016 http://who.int/about/finances-accountability/funding/financing-dialogue/whe-update.pdf?ua=1

WHO An R&D Blueprint for Action to Prevent Epidemics http://who.int/csr/research-and-development/r_d_blueprint_plan_of_action.pdf?ua=1

 

Climate Change and Health

Climate Change and Health

 

US - The Interagency Working Group on Climate Change and Health1 (IWGCCH) A Human Health Perspective on Climate Change: Change A Report Outlining the Research Needs on the Human Health Effects of Climate Change <https://www.cdc.gov/climatechange/pubs/hhcc_final_508.pdf>

 

Committee Meeting, Johannesburg Biennial August 9, 2016

Committee Meeting, Johannesburg Biennial August 9, 2016

Presenters at Biennial

Co-Rapporteur Xavier Seuba, Member Ruth Atherton, Co-Chair Frederick Abbott

 

Audio: 

Draft Committee Report for Johannesburg Biennial (August 2016)

Draft Committee Report for Johannesburg Biennial (August 2016)

Documents of Interest

Documents of Interest

Philip Morris v. UK Sec'y for Health, CJEU, Case -547/14, 4 May 2016

USGCRP, 2016: The Impacts of Climate Change on Human Health in the United States: A Scientific Assessment. Crimmins, A., J. Balbus, J.L. Gamble, C.B. Beard, J.E. Bell, D. Dodgen, R.J. Eisen, N. Fann, M.D. Hawkins, S.C. Herring, L. Jantarasami, D.M. Mills, S. Saha, M.C. Sarofim, J. Trtanj, and L. Ziska, Eds. U.S. Global Change Research Program, Washington, DC, 312 pp. http://dx.doi.org/10.7930/J0R49NQX

London Meeting March 11, 2016

London Meeting March 11, 2016

Committee Submissions to UN High Level Panel on Access to Medicines

Committee Submissions to UN High Level Panel on Access to Medicines

The Committee's submissions to the High Level Panel process will be presented in London at the public hearing on March 9, 2016.

The proposal for an Essential Medicines Patent Pool will be presented by Ellen 't Hoen (GHLC Rapporteur) in connection with a panel regarding Contributions that propose Incremental Modifications to Existing Innovation and Access Models – Patent related Mechanisms, beginning at 11:15 AM

The proposal for The Framework Convention on Pharmaceutical Innovation and Its Related Protocols will be presented by Xavier Seuba (GHLC Rapporteur) in connection with a panel regarding Contributions regarding System Wide Reform -- New Models to Finance Innovation, beginning at 1:40 PM

Information regarding webcast of the public hearing should be available from the UN High Level Panel Secretariat prior to the hearing: http://www.unsgaccessmeds.org

Submitted February 19, 2016

Proposal 1 (EMPP) prepared by: Ellen ‘t Hoen LLM, Prof dr Brigit Toebes, Katrina Perehudoff MSc, LLM, and Prof Frederick M Abbott

Proposal 2 (Framework) prepared by: Xavier Seuba

Global Health Security Work Program

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<body>The Global Health Law Committee, co-Chaired by Profs. Frederick Abbott and Brigit Toebes, convened its public working session on Tuesday morning, August 21, 2018. The Committee submitted its Report in advance of the meeting, and the co-Chairs briefly outlined the substance of the Report. This was followed by substantive presentations by Prof. Toebes addressing the identification and development of general principles of global health law, by Dr. Pedro Villarreal on the relationship between global health law and international environmental law, and by Prof. Abbott's presentation on transparency as a principle of global health law. The working session was well attended by non-members, and useful ideas for future work of the Committee emerged from interventions by those participants. For example, the suggestion was made that the Committee might further explore the rule system governing collection and use of health data that involves potential scientific benefits (e.g. AI-assisted R&D), on one side, and interference with rights of personality, privacy and related discrimination issues (e.g., insurance coverage), on the other. Data flows are often trans-border, and this points to an important international legal dimension that might be taken up by the Committee. There was substantial consensus that public health concerns (i.e. the effects) are an increasingly important dimension of environmental impacts (i.e. the causes), and that while so far international law has tended to focus on environmental causes, there is room for further exploring the legal implications of public health effects (e.g., a precautionary principle with respect to health). The Global Health Law Committee was also responsible for organizing a “side event” on Tuesday afternoon discussing the WTO Tobacco Panel Report.<p></p>

 

In June 2018, a WTO dispute settlement Panel issued a Report on the complaints filed with respect to Australia’s Tobacco Plain Packaging (TPP) legislation by Cuba, the Dominican Republic, Honduras and Indonesia. The Panel rejected all claims of WTO inconsistency in an 880+ page decision. There were two main sets of claims, those under the Agreement on Technical Barriers to Trade (TBT Agreement), and those under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). The Global Health Law Committee organized an expert panel to assess the Panel Report. This was a timely and “geographically appropriate” occasion given Australia’s central role in the dispute, and we were fortunate to include among the panelists several individuals who directly participated in the dispute settlement process, both from a legal and scientific angle. The Sydney panel was comprised of Jonathan Liberman (McCabe Centre for Law and Cancer, Australia), Edward Kwakwa (World Intellectual Property Organisation, Switzerland), Natasha Spisbah (Department of Foreign Affairs and Trade, Australia), Prof. Brigit Toebes (University of Groningen, Netherlands) and Prof. Tania Voon (University of Melbourne, Australia). Prof. Abbott chaired this expert panel session. The good news, of course, is that the WTO Panel reached the legally correct result, though that was hardly a surprise given the weakness of the complaining parties’ position -- which weakness was manifest already from the outset of the case back in 2012. One interesting question discussed by the panelists was whether the tobacco producers nevertheless enjoyed some success by virtue of the 6-year time span for issuance of the panel report, exceeding WTO procedural rules by five years (though somewhat less by customary practice), thereby managing to delay adoption of similar TPP legislation by other countries. Opinions were mixed on that, with some expressing the view that after about two years countries contemplating new legislation had stopped worrying about the WTO. Others thought that there were concrete examples of government delays awaiting the outcome. The case illustrated the complex science surrounding smoking cessation, and the importance of a multipronged approach to reducing tobacco use. It demonstrated that the TBT Agreement is not a “model of clarity”, particularly regarding some rules surrounding burden of proof, and the disputing parties spent considerable time debating which WTO Member had the burden, and what were the potential consequences of burden shifting. Considerable attention was paid to the WTO Panel determination that the WHO Framework Convention on Tobacco Control did not constitute a “relevant international standard” for purposes of establishing a rebuttable presumption that Australia’s legislation did not constitute an unnecessary obstacle to trade, and whether that determination raised questions regarding WTO’s approach to public health matters. On the TRIPS Agreement, the “main” question was whether Australia’s TPP legislation “unjustifiably” encumbered the rights of trademark owners under Article 20. Again, the WTO Panel reached the right (i.e. no) result, but there was some discussion in Sydney about the multi-part analytic framework employed. Interestingly, the complaining countries generally conceded that the TRIPS Agreement does not establish a “right to use” trademarks yet sought in various ways to infer positive from otherwise negative rights. The WTO Panel rejected those efforts. An appeal of the Panel Report was initiated by the time of the Sydney Biennial (Honduras, more recently followed by Dominican Republic), and Prof. Voon discussed the issues raised in the Honduras appeal filing. A number of insightful interventions were made from the floor as part of the follow-on Q & A.

 

 

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News Reporting

News Reporting

Donald McNeil, Simob Romero & Sabrina Tavernise, How a Medical Mystery in Brazil Led Doctors to Zika, Feb. 6, 2016

Simon Romero, Alarm Spreads in Brazil Over a Virus and a Surge in Malformed Infants, NY Times, December 30, 2015 

Dionne Searcey and Sheri Fink, Sierra Leone Declared Free of Ebola Transmissions, NY Times, Nov. 7, 2015

Denise Grady, 2 New Ebola Vaccines Pass Important Early Test, Researchers Say, NY Times, April 8, 2015

NIH Press Release, Experimental Ebola vaccine safe, prompts immune response, April 1, 2015, US HHS

Amirah Al Idrus, GSK to test Ebola jab with booster from Emergent BioSolutions, FierceVaccines, Mar. 18, 2015

Pam Belluck, Ebola Virus in Latest Outbreak Does Not Show Unusual Mutations, Study Finds, NY Times, Mar. 26, 2015

Dina Fine Maron, West Africa Unprepared for Future Health Crises Despite Ebola Aid, Scientific Am., Mar. 23, 2015

Sheri Fink, Nearly Halted in Sierra Leone, Ebola Makes Comeback by Sea, NY Times, Feb. 28, 2015

Donald G. McNeil, Jr., Fatality Rate Is Falling in West African Ebola Clinics, Feb. 26, 2015

Betsy McKay, How to Detect Infectious Diseases Like Ebola Faster, Wall St.J., Feb. 20, 2015

Pam Belluck, Red Cross Faces Attacks at Ebola Victims’ Funerals, NY Times, Feb. 12, 2015

NY Times Editorial Board, Reform After the Ebola Debacle, Feb. 10, 2015

 

Julie Hirschfeld Davis, Obama to Recall Military Personnel from Ebola Zone, Officials Say, NY Times, Feb. 10, 2015

Sheri Fink, Ebola Drug Aids Some in a Study in West Africa, NY Times, Feb. 4, 2015

Norimitsu Onishi, As Ebola Ebbs in Africa, Focus Turns From Death to Life, NY Times, Jan. 25, 2015

Jonathan Corum, A History of Ebola in 24 Outbreaks, NY Times, Dec. 29, 2014