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Multipolarity, Intellectual Property, and the Internationalization of Public Health Law Michigan Journal of International Law Volume 35 Issue 4 2014 Multipolarity, Intellectual Property, and the Internationalization of Public Health Law Sam F. Halabi University of Tulsa Follow this and additional works at: https://repository.law.umich.edu/mjil Part of the Health Law and Policy Commons, Intellectual Property Law Commons, International Trade Law Commons, and the Organizations Law Commons Recommended Citation Sam F. Halabi, Multipolarity, Intellectual Property, and the Internationalization of Public Health Law, 35 MICH. J. INT'L L. 715 (2014). Available at: https://repository.law.umich.edu/mjil/vol35/iss4/2 This Article is brought to you for free and open access by the Michigan Journal of International Law at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of International Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. MULTIPOLARITY, INTELLECTUAL PROPERTY, AND THE INTERNATIONALIZATION OF PUBLIC HEALTH LAW Sam F. Halabi* INTRODUCTION ................................................. 716 I. THE INTERNATIONALIZATION OF PUBLIC HEALTH LAW . 722 A. The International Sanitary Conventions .............. 726 B. The World Health Organization ..................... 727 1. International Code on the Marketing of Breastmilk Substitutes .......................... 728 2. International Health Regulations ................ 730 3. The Framework Convention on Tobacco Control ......................................... 733 C. Proposed Conventions .............................. 734 1. Framework Convention on Alcohol Control ..... 734 2. Framework Convention on Global Health ....... 735 3. Medical Research and Innovation Treaty ........ 737 D. Public-Private Partnerships .......................... 738 II. THE EXPANSION OF INTELLECTUAL PROPERTY RIGHTS IN TRADE AND INVESTMENT TREATIES .................. 740 A. The 1883 Paris Convention for the Protection of Industrial Property .................................. 741 B. International Trade Law ............................ 743 1. The WTO ...................................... 743 2. TRIPS.......................................... 744 3. SPS and TBT Agreements ...................... 746 4. The Anti-Counterfeiting Trade Agreement ...... 748 C. Bilateral and Regional Trade and Investment Treaties............................................. 750 * Associate Professor, The University of Tulsa College of Law. J.D. Harvard, 2005; M.Phil. Oxford, 2001; B.S. Kansas State University, 1999. The author would like to thank participants at the O’Neill Institute for National and Global Health Law’s Summer Workshop Series, the American Society for Law, Medicine, and Ethics 2013 Health Law Professors Conference, the Washington University Junior Faculty Workshop, and the University of Oklahoma’s Junior Scholars Conference especially Ana Ayala, Paula Avila- Guillen, Sarah Burstein, Carli Conklin, Deborah Dinner, Eric Friedman, Stephen Galoob, John Inazu, Eric Johnson, Kit Johnson, Susan Kim, Rhett Larson, Benn McGrady, Daniel Morales, Laurent A. Sacharoff, Liz Sepper, David Rubenstein, Ganesh Sitaraman, and Bryan Thomas for helpful comments. Special thanks go to Allyn Taylor and Sean Murphy for providing materials used by the World Health Organization’s Consultation Committee on Potential Liability and Compensation Provisions for the FCTC. Thanks also go to Chris Garner for excellent research assistance. 715 716 Michigan Journal of International Law [Vol. 35:715 III. CONFRONTATIONS BETWEEN IP RIGHTS AND INTERNATIONAL PUBLIC HEALTH LAW .................. 753 A Guatemala, Brazil, India, the Philippines and the 1981 WHO Code on the Marketing of Breastmilk Substitutes .......................................... 753 B. Brazil, India, South Africa, Thailand and Access to Medicines .......................................... 755 1. Compulsory Licenses and Parallel Imports ...... 755 2. TRIPS Flexibilities and Model Laws ............ 757 3. Action at the World Trade Organization ........ 758 C. Indonesia and the International Health Regulations . 758 D. Australia, Uruguay and the FCTC ................... 761 E. Thailand and Pictorial Warnings on Alcoholic Beverage Containers ................................ 763 IV. INTERNATIONAL PUBLIC HEALTH LAW IN A WORLD OF STRONG INTERNATIONAL INTELLECTUAL PROPERTY LAW .................................................... 764 A. Rescission of Existing Bilateral, Regional and Multilateral Intellectual Property Agreements ........ 766 B. Revision of Existing Bilateral, Regional and Multilateral Intellectual Property Agreements ........ 767 C. The Role of Multipolarity in Rebalancing International Intellectual Property Protections and International Public Health Law .................... 769 CONCLUSION ................................................... 770 INTRODUCTION The cause of global health today is arguably the most influential human rights movement ever seen, mobilizing vast flows of direct and in- direct aid to the developing world to fight disease and build health care infrastructure; prompting the establishment of international organizations like UNAIDS and the Global Fund to fight AIDS, Tuberculosis and Mala- ria (Global Fund); including global health as a priority in major diplomatic summits; and driving the formation and implementation of international agreements to address global health threats. Champions of this movement claim that the diverse and influential state and non-state actors participat- ing in the development of the global health regime are evidence of its normative, law-making power. Speaking of a range of initiatives under- taken by the World Health Organization (“WHO”), Christopher McDou- gall, Ross Upshur and Kumanan Wilson wrote that: Each . reflects a revolutionary willingness of the international community to accept new forms of supranational authority and to abide by the principle that national sovereignty can in some cir- cumstances be subordinate to public health protection. As such, Summer 2014] Internationalization of Public Health Law 717 they are integral parts of the evolution of international health gov- ernance towards a global public health security regime.1 In 2007, the governments of Brazil, France, Indonesia, Norway, Sene- gal, South Africa, and Thailand issued the Oslo Ministerial Declaration declaring that: The early 21st century . has seen an unprecedented convergence of global health and foreign policy . [e]nsuring public health on a global scale is of bene?t to all countries. Powerful synergies arise when national interest coincides with the need for concerted re- gional and global action.2 Indeed, the evidence for the normative strength of the global health movement is persuasive. From 1995 to 2010, the value of goods and ser- vices aimed at improving global health increased at least threefold.3 Global health was introduced as a priority at the 26th G8 Summit—giving rise to the Global Fund—and has remained on the agenda ever since.4 Since 2005, states have updated the International Health Regulations (“IHR”) to coordinate broader responses to more diseases and have con- cluded the first international public health treaty, the Framework Conven- tion for Tobacco Control (“FCTC”). Yet that evidence is also deceiving. The 2005 IHR, concluded in the wake of outbreaks of diseases largely in developing countries, appeared to falter on the unwillingness of wealthy countries to equitably address vac- cine production and distribution. Key provisions of the FCTC have failed in the face of challenges tobacco firms have mounted on the basis of their rights in trademarks and brands. Indeed, formal global health instruments that purportedly capture the health movement’s normative force have been systematically undermined by a competing global movement: inter- national intellectual property protection. Intellectual property rights and public health interventions are in many ways natural antagonists. The exclusive control given pharmaceuti- 1. Christopher McDougall et al., Emerging Norms for the Control of Emerging Epidemics, 86 BULL. OF THE WORLD HEALTH ORG. 643 (2008), available at http://www.who. int/bulletin/volumes/86/8/08-051771.pdf?ua=1. 2. Celso Amorim et al., Oslo Ministerial Declaration—Global Health: A Pressing For- eign Policy Issue of Our Time, 369 THE LANCET 1373 (2007), available at http://www.who.int/ trade/events/Oslo_Ministerial_Declaration.pdf. 3. Josh Michaud, Global Health’s Private-Sector Revolution,WORLD POL. REV. (Dec. 14, 2010), http://www.worldpoliticsreview.com/articles/7328/global-healths-private-sector- revolution (citing Inst. for Health Metrics and Evaluation, Financing Global Health 2010: Development Assistance and Country Spending in Economic Uncertainty (2010) available at http://www.healthmetricsandevaluation.org/publications/policy-report/financing_global_ health_2010_IHME (analyzing spending on HIV/AIDS, tuberculosis, malaria, maternal and child health, and non-communicable diseases)). 4. Kiyoshi Kurokawa et al., Italian G8 Summit: A Critical Juncture for Global Health, 373 THE LANCET, Feb. 14, 2009, at 526, 526–527 (2009), available at http://www.global-health- summit.org/ghf2009/pdf/Lancet.pdf. 718 Michigan Journal of International Law [Vol. 35:715 cal patent holders, while theoretically required to encourage investments in research and development, stands at odds with access to affordable medicines. The goodwill trademark proprietors build through
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