A recent article in the Huffington Post by one of my favourite trade and investment law commentators discussed the draft TPP’s exclusion of tobacco-related public health policies from investment arbitration. An ongoing case brought forward against Australia by Philip Morris over cigarette plain packaging rules has been a flash-point for anti-ISDS critics. Given the extraordinary amount of emotion that tobacco politics can bring out in people it is unsurprising that the case has caught a lot of flak. One wonders what it takes to get a PR job at a big tobacco company these days.
Cigarettes are bad and you shouldn’t smoke. But obvious health advice and sentimentality aside, it is worth discussing whether it really is so terrible that a tribunal of three highly qualified international jurists constituted pursuant to an international trade agreement are adjudicating on the legality of a public health policy that is clearly global in scope.
The point has been made for a long time that 21st century global governance is disaggregated and multifaceted. That is to say that despite the dreams of both post world war eras we are unlikely to see anything resembling a world parliament anytime soon. But that doesn’t mean that policy-making is an increasingly provincial endeavor. To the contrary, more-and-more legal and policy issues are global in scope and require coordinated decision making that funnels up and down a myriad of formal and informal global governance structures. The point, however, is that we are unlikely to see a single centralized body through which global policy-making will be orchestrated despite the concurrent reality that policy-making (and law making) is a not an activity that can transpire in isolation anymore.The fact that there has been a long string of failed attempts to forge a globe-spanning multilateral agreement on investment is evidence of the nature of how decisions are made internationally — and how they likely will continue to be made going forward.
Global governance in today’s world is an ad hoc phenomenon which, I think, makes the contemporary ISDS system a very unique feature of contemporary global governance. Just like issues demanding a coordinated global policy-making response are usually dealt with on an ad hoc basis so too are investment disputes adjudicated by tribunals established on an ad hoc basis pursuant to one of several thousand investment agreements that crisscross the world.
My project here is not to either celebrate or decry the foundations of contemporary global governance: it is what it is. But I do think that public health advocates who (rightly) call for a coordinated and international effort to regulate tobacco use should recognize that cases like Philip Morris v Australia are not counterproductive to their cause but rather emblematic of the reality that tobacco consumption is a policy area that needs to be and is being regulated at a global level. Tobacco use and the stunningly well-documented harms of its use are not confined to within the borders of any particular country. Nor do the supply chains of any massive tobacco conglomerate remain situated in any singe jurisdiction. Government responses to tobacco use — such as mandating plain packing — deserve discussion in a global forum: that is exactly what hashing out the debate over plain packing in front of an international tribunal will achieve.
Regardless of how the tribunal in Philip Morris (or any similar case) rules, the case’s award will be a thoughtful and systematic contribution to a global debate on a global public health issue. Those who think that forceful and coordinated public measures to respond to tobacco use is simply a matter of good governance should welcome tobacco regulation being made a matter of global governance.