International Investment Law Symposium LLM Perspectives Online Publications

Connecting the Dots of Business and Health at International Fora: An Analysis of the Investor-State Arbitration of Tobacco Plain Packaging

I would like to thank Professor William Burke-White for his great teaching on international investment law in 2016 at Penn Law and Dr. James McGann’s comments that significantly improved the comment draft. Any errors are my own.

I. Introduction

Regulators in Australia may not have expected international lawsuits by foreign companies when they drafted laws to regulate tobacco packaging to protect public health, but that has certainly been one side effect. Since the Parliament of Australia passed the Plain Packaging Act (“PPA”) in 2011, big tobacco has been fighting against this legislation in various domestic and international judicial fora, including the Australian national courts, a dispute settlement panel under the World Trade Organization (“WTO”), and through investor-State dispute settlement (“ISDS”) mechanisms. By the end of 2016, big tobacco had lost its ISDS case.

Through the twists and turns of the story of the plain packaging case, this comment explores the fragmentation of international law and addresses the question of what roles non-State actors could play to help unify heterogeneous international legal regimes. Part II will provide an overview of the ISDS mechanism and background of the plain packaging case in front of the ISDS arbitral panel. Part III will examine the tobacco company’s substantive ISDS claims, with a focus on expropriation. Part IV will compare the domestic and WTO cases to demonstrate how the ISDS case fits into the narrative of the fragmentation of international law as characterized by uneven legal regimes, imbalanced enforcement, and the role of non-State actors. Part V will conclude.

II. The Business-Health Dynamic

1. An Overview

Business and public health interests often have been diametrically opposed. The classic economic theory of comparative advantage, which lays the foundation for international economic law, demonstrates that trade can improve everyone’s welfare.01N. Gregory Mankiw, Principles of Microeconomics §1.1 (6th ed. 2012). Non-economic considerations such as health, however, do not fall within the scope of “welfare” under this economic theory. One simple example is environmental health. Industrial emission is one significant contributor to air and water pollution, so reducing such emissions can greatly improve environmental health.02Environmental Health, World Health Organization, http://www.who.int/topics/environmental_health/en/ (last visited Jun. 19, 2016). Such reductions are often expensive or otherwise negatively impact the viability of industry, however, and so difficulties arise when regulators are forced to choose between economic growth and a healthy environment.

Another example, which has been a prominent part of the global agenda in recent years, is access to medicines.03Access to Medicines, World Health Organization, http://www.who.int/trade/glossary/story002/en/ (last visited Jun. 19, 2016). Issues related to rare diseases and pharmaceutical patents reflect the oppositional health-wealth dynamic. A rare disease can be very severe and even fatal but only affects a very small percentage of the population, so the pharmaceutical industry lacks economic incentives to research treatments. This lack of economic incentive means that rare diseases need extra regulatory attention; Ebola, for instance, was considered a rare disease before the breakout in West Africa and was consequently little researched and poorly understood.04Margaret Chan, WHO Director-General Addresses High-Level Meeting on Ebola Research and Development, World Health Organization (May 11, 2015), http://www.who.int/dg/speeches/2015/ebola-research-remark/en/. The limited number of patients and disadvantaged geographic attributes rendered investment into researching Ebola a bad business decision; it was therefore long neglected, making successful treatment of the disease difficult during the recent outbreak.05Michael Hiltzik, The Economics of Ebola, or Why There’s No Cure, Los Angeles Times (Aug. 4, 2014), http://www.latimes.com/business/hiltzik/la-fi-mh-economics-of-ebola-20140804-column.html.

As for the contentious dynamic between pharmaceutical patents and public health, Novartis v. India illustrates the international economic dimension of this relationship. In 2005, the Indian legislature struck down secondary patents, which are “new forms of known drugs” without “therapeutic efficacy” and seen as an “ever-greening” strategy of big pharmaceutical companies.06“Ever-greening” strategies refer to strategies pharmaceutical companies adopt to extend the life of the patents they hold, including applying to a secondary patent before the primary patent expires.
Amy Kapczynski, Engineered in India — Patent Law 2.0, New Eng. J Med. (Aug. 8, 2013), http://www.nejm.org/doi/full/10.1056/NEJMp1304400?af=R&rss=currentIssue&.
Novartis’s Gleevec, a drug famous for treatment of leukemia, was blocked out. Consequently, generic drug companies can produce low-price versions of this drug without infringing Novartis’s intellectual property rights (“IPRs”), which has improved people’s access to medicines in India.07Id. Novartis filed a lawsuit in India, alleging financial losses due to the legal change. The case went to Indian Supreme Court. Novartis argued that the Indian legislation violated the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS Agreement”), a multilateral international treaty on IPRs that requires a minimum level of protection for pharmaceutical patents.08Novartis AG v. Union of India & Others, (2013) Civil Appeal Nos. 2706-2716 (India). In this case, the Indian Supreme Court listed national health concerns as a major reason to rule against Novartis.09Id.

Generally speaking, issues like rare diseases and access to medicines have affected the global South, while the North has instead been more concerned with non-communicable diseases, including “diabetes, cancer and respiratory and heart diseases,” as its social-economic development has proceeded.10World Health Organization, 2008-2013 Action Plan for the Global Strategy for the Prevention and Control of Non-Communicable Diseases, World Health Assembly document A61/8 (2008), http://www.who.int/nmh/Actionplan-PC-NCD-2008.pdf. According to a WHO report, smoking, drinking, and unhealthy eating habits are largely to blame for the rise in these types of diseases.11Id. Consequently, the tobacco, alcohol, and junk food industries have become targets for heavy taxation and further regulations like plain packaging.12Jack Cafferty, Tax Cigarettes, Alcohol, Junk Food to Pay for Health Care Reform?, CNN News (May 14, 2009), http://caffertyfile.blogs.cnn.com/2009/05/14/tax-cigarettes-alcohol-junk-food-to-pay-for-health-care-reform/.

Economists have offered different theories to explain these phenomena and justify such governmental regulations, which can be roughly described as correcting a market failure.13Stephen Breyer et al., Administrative Law and Regulatory Policy 4 (7th ed. 2011). Environmental pollution is the consequence of a collective action problem; everyone can benefit from public goods like clean air and water but no one can solve the issue of pollution alone.14Id. at 5. The causes of the lack of access to medicines are more complicated and involve the unequal distribution of wealth and big pharma’s abuse of market power.15Id. at 7. Pharmaceutical patents, for instance, are legitimate monopolies designed to incentivize innovation but can be misused to gain profits despite no real innovations.16Amy Kapczynski, et al., Polymorphs and Prodrugs and Salts (Oh My!): An Empirical Analysis of ‘Secondary’ Pharmaceutical Patents, 7.12 PLOS ONE (Dec. 2012), http://ssrn.com/abstract=2191728. The issue of widespread non-communicable diseases, on the other hand, results from the informational asymmetry between producers and consumers; as the consumers often underestimate the chronic impact of overeating, overdrinking, or smoking,17Breyer et al., supra note 13, at 6. which may lead consumers to an “unhealthy” choice of lifestyles. Nevertheless, national governments face dilemmas in striking a balance between economic development and public health, and especially when regulating transnational corporate entities.

2. Big Tobacco’s Battle against Plain Packaging Regulations

Tobacco plain packaging regulations have triggered four lawsuits in three different judicial fora, including one at the national level and three at the international level involving international laws both with and without viable enforcement mechanisms. To better understand the background of the important ISDS cases discussed in Part III below, I will provide a brief review of each of these cases here.

1) Australian National Court

In 2011, the Parliament of Australia passed the Plain Packaging Act (“the Act”), which requires that health warning images and wording occupy 75% of the tobacco packet surface and that packaging contain no symbol associated with a brand or any guarantee seal.18Tobacco Plain Packaging Act 2011 (Cth) chapter 2 (Austl.). Rather than using their trademark images, tobacco companies could only label their products using a standard font.19Id. This regulation is designed to make tobacco packaging unattractive in order to reduce the consumption of tobacco products.20Id. Though strongly endorsed public health advocates, the Plain Packaging Act has been criticized by the tobacco industry and questioned by IPRs supporters.21Matthew Rimmer, Cigarettes Will Kill You: The High Court of Australia & Plain Packaging of Tobacco Products, WIPO Magazine (Feb. 2013), http://www.wipo.int/wipo_magazine/en/2013/01/article_0005.html. Their main reason, as further discussed below, is that this regulation deprived tobacco companies of their rights to use registered trademarks.22Id.

Implementation of the Plain Packaging Act started in 2012. In the same year, two transnational tobacco companies, Japan Tobacco and British American Tobacco, started a long legal battle against the Australian government in its domestic courts.23Id. For example, in JT International SA v Commonwealth, Japan Tobacco filed a constitutional lawsuit against Australia. Japan Tobacco claimed that the Act constituted an illegal “acquisition of property,” which includes trademark as a form of intellectual property.24JT International SA v Commonwealth (2012) HCA 43 (Austl.). This lawsuit went to the High Court of Australia (the nation’s highest court), and in 2012, the Justices ruled in favor of the Act by six to one because Japan Tobacco failed to prove a gain to the government by the Act.25Id. Moreover, the Justices harshly criticized the tobacco company’s cause of action as “delusive” and logically “fatal” in their opinion,26Id. resulting in a complete defeat for big tobacco. Consequently, the constitutionality of the Act in Australia has become unassailable.27Id.

2) ISDS Cases

Australia’s domestic court victory did not end the dispute. Tobacco companies next turned to ISDS to pursue their claims. Philip Morris Asia, a company incorporated in Hong Kong and part of the Philip Morris International group, claimed that the Government of Australia violated its bilateral investment treaty with the Government of Hong Kong (“Hong Kong-Australia BIT”)28Agreement between the Government of Hong Kong and the Government of Australia for the Promotion and Protection of Investments, H.K.-Austl., Oct. 15, 1993, 30 A.T.S. 1993 [hereinafter Hong Kong-Australia BIT]. and breached Article 6 in particular. Philip Morris contended that banning the use of trademark images expropriated Philip Morris’s intellectual property investment in Australia under Article 6.29Id. The Tribunal never addressed the merits, however; Australia argued that the Tribunal had no jurisdiction to hear the case and the Tribunal unanimously agreed with Australia. 30Tobacco Plain Packaging—Investor-State Arbitration, Australian Government Attorney-General’s Department, https://www.ag.gov.au/tobaccoplainpackaging#_dapjo (last visited Jun. 19, 2016).

In a separate dispute involving Uruguay’s tobacco products regulations, Philip Morris Brands Sàrl, another Philip Morris company incorporated in Switzerland, sued the Government of Uruguay before an ISDS tribunal.31Philip Morris Brands Sàrl, Philip Morris Products S.A. and Abal Hermanos S.A. v. Oriental Republic of Uruguay, ICSID Case No. ARB/10/7, Request for Arbitration (Feb. 19, 2010). Philip Morris Brands Sarl argued that Uruguay’s pictorial health warnings policy violated its bilateral investment treaty (“BIT”) with Switzerland.32Agreement between the Swiss Confederation and the Oriental Republic of Uruguay on the Reciprocal Promotion and Protection of Investments, Switz.-Uru., Oct. 7, 1988, 1976 U.N.T.S. 413 [hereinafter Switzerland-Uruguay BIT]. The claims are similar to Philip Morris Asia’s ones.33See Benn McGrady, Implications of Ongoing Trade and Investment Disputes Concerning Tobacco: Philip Morris v. Uruguay, in Public Health and Plain Packaging of Cigarettes: Legal Issues (Tania Voon, Andrew Mitchell, Jonathan Liberman and Glyn Ayres, eds., 2012), http://ssrn.com/abstract=2046261. The ISDS tribunal has ruled in favor of Uruguay, confirming the policy space Uruguay has under the Switzerland-Uruguay BIT.34Philip Morris Brands Sàrl, Philip Morris Products S.A. and Abal Hermanos S.A. v. Oriental Republic of Uruguay, ICSID Case No. ARB/10/7, Award (July 8, 2016).

3) The WTO Case

Although not directly instituted by the tobacco companies themselves, another relevant ongoing international lawsuit has been initiated under the WTO’s dispute settlement mechanism. Originally, five WTO members – Ukraine, Indonesia, Cuba, Honduras, and the Dominican Republic – requested panel adjudication of Australia’s Plain Packaging Act. In June, 2015, however, Ukraine withdrew its request.35Ukraine drops lawsuit against Australia over plain-packaging tobacco laws, WTO says, ABC News (Jun. 3, 2015), http://www.abc.net.au/news/2015-06-04/plain-packaging-tobacco-ukraine-drops-lawsuit-against-australia/6520160.

The four remaining complainants submitted several claims under the WTO agreements. Their main argument is that the Plain Packaging Act failed to uphold the minimum standards of protection of trademark rights under the TRIPS Agreement.36Summary of the Dispute to Date, Australia — Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging, WT /DS467 (Dec. 3, 2015), http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds467_e.htm. The TRIPS Agreement explicitly forbids WTO members from encumbering the use of trademarks and creating confusion among consumers: Article 20 provides that “the use of a trademark in the course of trade shall not be unjustifiably encumbered by special requirements.”37Agreement on Trade-Related Aspects of Intellectual Property Rights art. 20, Jan. 1, 1996, 1869 U. N. T. S. 299 [hereinafter “TRIPS Agreement”]. However, the word “unjustifiable” is not clearly defined under WTO law, and many Australian scholars argue that the Act is justifiable in light of empirical evidence, statutory interpretation, and existing jurisprudence.38These Australian scholars include Tania Voon, Andrew D. Mitchell, Mark Davison, and Benn McGrady.
Tania Voon, Flexibilities in WTO Law to Support Tobacco Control Regulation, 39 Am. J.L. & Med. 199-217 (2013); Tania Voon & Andrew Mitchell, Implications of WTO Law for Plain Packaging of Tobacco Products in Public Health and Plain Packaging of Cigarettes: Legal Issues (2012); Mark Davison, The Legitimacy of Plain Packaging under International Intellectual Property Law: Why There is no Right to Use a Trademark under either the Paris Convention or the TRIPS Agreement in Public Health and Plain Packaging of Cigarettes: Legal Issues (2012); Benn McGrady, TRIPs and Trademarks: the Case of Tobacco, 3(1) World Trade Rev. 53-82 (2004).

3. Behind the Battle

Australia and Uruguay are not fighting this battle against tobacco companies alone; such plain packaging legislation is endorsed by the Framework Convention on Tobacco Control “FCTC”), an international treaty proposed by the World Health Organization (“WHO”). The FCTC was the first time that the WHO used an international agreement to advocate for its policies.39History of the WHO Framework Convention on Tobacco Control, World Health Organization (2009), http://whqlibdoc.who.int/publications/2009/9789241563925_eng.pdf. So far, 168 countries have signed the agreement, including Australia, Uruguay, Dominican Republic, and Honduras.40Parties to the WHO Framework Convention on Tobacco Control, World Health Organization (Jul. 22, 2014), http://www.who.int/fctc/signatories_parties/en/. Article 11 (“Packaging and labelling of tobacco products”) provides that tobacco packaging should carry health warnings that are “large, clear, visible and legible” and “50% or more of the principal display areas but shall be no less than 30% of the principal display areas.”41WHO Framework Convention on Tobacco Control art. 11, Feb. 27, 2005, 2302 U.N.T.S. 166.

In order to provide further detail about these packaging and labeling requirements, the WHO Conference of the Parties in 2008 adopted the Guidelines for Implementation of Article 11 (“the Guidelines”). Article 46 of the Guidelines explicitly says that “Parties should consider adopting measures to restrict or prohibit the use of logos, colors, brand images or promotional information on packaging other than brand names and product names displayed in a standard color and font style (plain packaging).”42The Conference of the Parties to the WHO FCTC, Guidelines for Implementation of Article 11 of the WHO Framework Convention on Tobacco Control on Packaging and Labeling of Tobacco Products, ¶ 46, Decision FCTC/COP3(10) (Nov. 2008). Article 46 also states the reason for adopting plain packaging as a tobacco control measure: “this may increase the noticeability and effectiveness of health warnings and messages, prevent the package from detracting attention from them, and address industry package design techniques that may suggest that some products are less harmful than others.”43Id.

Many States besides Australia and Uruguay are considering adopting plain packaging regulations as well.44Europe Leading the Way in Plain Packaging Legislation for Tobacco Products, World Health Organization (Mar. 26, 2015), http://www.euro.who.int/en/health-topics/disease-prevention/tobacco/news/news/2015/03/europe-leading-the-way-in-plain-packaging-legislation-for-tobacco-products; Canada Proposes Plain Tobacco Packaging, The Cigar Authority (Oct. 6, 2015), http://thecigarauthority.com/canada-proposes-plain-tobacco-packaging/; Plain Packaging, New Zealand Ministry of Health, http://www.health.govt.nz/our-work/preventative-health-wellness/tobacco-control/plain-packaging (last updated Aug. 15, 2014). New Zealand, the United Kingdom, France, and Ireland have already incorporated plain packaging regulation into their laws.45MPS Pass Legislation to Introduce Standardized Cigarette Packaging, The Guardian (Mar. 11, 2015), http://www.theguardian.com/politics/2015/mar/11/mps-pass-legislation-introduce-standardised-cigarette-packaging; France Votes for Plain Cigarette Packaging from 2016, The Guardian (Dec. 17, 2015), https://www.theguardian.com/society/2015/dec/18/france-votes-for-plain-cigarette-packaging-from-2016; Ireland Passes Plain Packaging Bill for Cigarettes, The Guardian (Mar. 3, 2015), https://www.theguardian.com/world/2015/mar/03/ireland-passes-plain-packaging-bill-cigarettes-smoking-tobacco. To combat the spread of these regulations, big tobacco companies have formed alliance with tobacco exporting countries like those who joined the WTO lawsuit.46Andrew Martin, Philip Morris Leads Plain Packs Battle in Global Trade Arena, Bloomberg (Aug. 22, 2013), http://www.bloomberg.com/news/articles/2013-08-22/philip-morris-leads-plain-packs-battle-in-global-trade-arena.

There are two themes in the series of disputes over plain packaging regulations. One is that conflicts arise when different States are at different developmental stages. Anti-plain packaging nations, like the complainants in the WTO case, are all developing countries focused on their economic development, while States that are passionate about plain packaging regulations are developed countries instead concerned with preventing non-communicable diseases.

The other theme – which is more explicit and crucial not only in the ISDS cases but also in the entire dispute over plain packaging – is good State governance over corporate powers. Although the WTO case has attracted much attention globally, the WTO panel complainant States have been much more conservative than complainant corporations in the ISDS cases; the scope of the WTO complaints is narrower and the consequence of losing to Australia in the WTO is less severe. Take the Dominican Republic’s Request for the Establishment of a Panel as an example: the regulatory measure in dispute refers to the “plain” packaging only and does not include the “ugly” packaging requirement of health warning images.47Request for the Establishment of a Panel by the Dominican Republic, Australia — Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging, WT/DS441/15 (Nov. 14, 2012). Philip Morris Asia’s complaint, in contrast, included both “plain” and “ugly” packaging requirements.48Philip Morris Asia Limited v. The Commonwealth of Australia, UNCITRAL, PCA Case No. 2012-12, Notice of Claim (Jun. 22, 2011). Also, losing under the WTO only results in having to make a minor legislative amendment in Australia, while an ISDS loss could force Australia to pay a huge amount of compensation to the complainants.49Id.

III. Revisiting the Expropriation Issue

1. Jurisdiction

Under the traditional Westphalian framework of international law, only sovereign States and intergovernmental organizations can be litigants. Prior to modern investment treaty dispute resolution mechanisms, foreign investors, including individuals and corporations, could either seek domestic remedies in the host State or ask the State of the investor’s citizenship for diplomatic protection.50Andrew Mitchell & Sebastian Wurzberger, Boxed in? Australia’s Plain Tobacco Packaging Initiative and International Investment Law, 27 Arb. Int’l (2011), http://ssrn.com/abstract=1896125. However, a unique feature of the modern ISDS, as Professor Mitchell and Professor Wurzberger put it, is that a private party is given “direct international standing.”51Id.

The target of the challenged regulations can be considered part of an “investment.” Philip Morris’ use of their intellectual property – in particular, their trademarks – is banned under the Plain Packaging Act. A traditional approach to interpreting “investment” is to look at the definition in the disputed investment treaty.52Id. As Professor Mercurio concluded in his article, most BITs have a loose definition and a specific exemplary list of an “investment” that often explicitly include IPRs.53Bryan Christopher Mercurio, Awakening the Sleeping Giant: Intellectual Property Rights in International Investment Agreements, 15(3) J. Int’l Econ. L. 871-915 (2012). The Hong Kong-Australia BIT is among these: Article 1(e) broadly defines investment as “every kind of asset, owned or controlled by investors of one Contracting Party and admitted by the other Contracting Party subject to its law and investment policies applicable from time to time.”54Hong Kong-Australia BIT, supra note 29, art 1(e). “Intellectual property rights including rights with respect to copyright, patents, trademarks, trade names, industrial designs, trade secrets, know-how and goodwill” are on the non-exhaustive list of investment in Article 1(e)(iv).55Id. at art 1(e)(iv).

However, the ISDS Tribunal found that the connection between Claimant Philip Morris Asia and Philip Morris Limited (the branch company with an investment in Australia) is too tenuous to afford the former a standing in front of the Tribunal. Article 1(e) requires that Philip Morris Limited be an investment “controlled” by Philip Morris Asia if not fully owned.56Id. at art 1(e). According to its fact-finding in the final award, Philip Morris Asia exercised only “some (limited) management activity” prior to a corporate restructuring in 2011.57Philip Morris Asia Limited v. The Commonwealth of Australia, UNCITRAL, PCA Case No. 2012-12, Award, ¶¶ 157-8 (Dec. 17, 2015). The timing of restructuring coincided with the introduction of PPA in Australia, which the Tribunal viewed as a clear attempted “abuse of rights” to obtain a treaty protection “in view of a specific foreseeable dispute.”58Id. ¶¶ 167-70. Thus, the Tribunal concluded it did not have jurisdiction over the dispute.

2. Merits

The Tribunal of Philip Morris v. Australia did not have a chance to address substantive claims in this case, while the tribunal of Philip Morris v. Uruguay did with a focus on indirect expropriation.

Historically, expropriation means “an outright taking of private property by the state,” which usually involves “a transfer of ownership rights to the state or to a third person.”59August Reinisch, Expropriation, in The Oxford Handbook of International Investment Law (2012). Nationalization and socialization in Communist countries in the twentieth century represent typical kinds of expropriation of foreign property.60Peter D. Isakoff, Defining the Scope of Indirect Expropriation for International Investments, 3.2 Global Bus. L. Rev. 189 (2013). This kind of expropriation is “usually open and deliberate,” and is known as direct expropriation.61Id. Today, disputed measures instead often constitute indirect expropriation or de facto expropriation, which has an “equivalent” or “tantamount” effect to direct expropriation.62Id.

In international law, a State is entitled to expropriate private property in its territory based on its sovereignty. But, such an expropriation must meet four qualifications to be legal under customary international law: “public interest,” “non-discrimination,” “due process,” and “compensation.”63Id. In the other words, a State can directly or indirectly take away private property under certain circumstances and only if the owner is paid.

Rules on expropriation under the Hong Kong-Australia BIT are consistent with the customary requirements above. Article 6(1) provides that

Investors of either Contracting Party shall not be deprived of their investments nor subjected to measures having effect equivalent to such deprivation in the area of the other Contracting Party except under due process of law, for a public purpose related to the internal needs of that Party, on a non-discriminatory basis, and against compensation.64Hong Kong-Australia BIT, supra note 29, art 6(1).

This provision not only defines direct expropriation as a deprivation of an investment, but also includes indirect expropriation through the language “measures having effect equivalent to such deprivation.” Also, it incorporates the four qualifications of expropriation from customary international law.

An initial question is whether the plain packaging legislation could constitute direct or indirect expropriation. As many scholars agree, it is hard for Philip Morris to argue direct expropriation because the government has not taken away the tobacco company’s trademark for its own use or granted the trademark to a third party.65Mitchell and Wurzberger, supra note 50. In regards to indirect expropriation, as Isakoff states in his paper, ISDS tribunals often look at the “effect on the investor” but sometimes at “purpose of the state action” as well.66Isakoff, supra note 60. Arbitral tribunals started with a broad interpretation of indirect expropriation. Metalclad v. Mexico in 2000 set out an economic impact test which based a determination of indirect expropriation solely on whether investors suffered an economic loss due to a regulation.67Metalclad Corporation v. The United Mexican States, ICSID Case No. ARB(AF)/97/1, Award, ¶ 98 (Aug. 30, 2000).

However, the tribunal in Tecmed v. Mexico in 2003 suggested taking into consideration the proportionality between public interests represented by the policy and the policy’s impact on the investment.68Técnicas Medioambientales Tecmed, S.A. v. The United Mexican States, ICSID Case No. ARB (AF)/00/2, Award (May 29, 2003). In this case, the tribunal confirmed that States have police power “in the highly regulated and extremely sensitive framework of environmental protection and public health,”69Id. ¶ 97. and that exercise of this power does not automatically constitute expropriation even if it negatively affects an investment.

In addition to proportionality, tribunals have introduced other standards to distinguish expropriation from bona-fide regulation. In the 2005 case Methanex v. United States, the tribunal stated that a lack of governmental commitment to take or refrain from a particular action would mean that an environmental regulation did not qualify as an “expropriatory and compensable” expropriation.70Methanex Corporation v. United States of America, UNCITRAL, Final Award, ¶ V.D.4 (Aug. 3, 2005). The tribunal wrote, “a non-discriminatory regulation for a public purpose, which is enacted in accordance with due process and, which affects, inter alias, a foreign investor or investment is not deemed expropriatory and compensable unless specific commitments had been given by the regulating government to the then putative foreign investor. . .” Applying this principle to the case’s facts, the tribunal determined that no such commitment existed since California has always been a front runner of environmental regulation. In contrast, the tribunal in Reinhard v. Costa Rica in 2012 decided that the State violated the expropriation clause because the government had agreed to pay compensation but delayed it.71Reinhard Unglaube v. Republic of Costa Rica, ICSID Case No. ARB/09/20, Award (May 16, 2012).

According to Glamis v. United States (decided in 2009), to determine whether a measure is expropriatory in nature, the tribunal should also look at “severity of the economic impact and the duration of that impact.”72Glamis Gold, Ltd. v. United States of America, UNCITRAL, Award, ¶ 356 (Jun. 8. 2009). Although the anticipated decrease of profit is a quantitative impact on an investment, it did not mean the regulation constituted an expropriation. The Tribunal in Chemtura v. Canada in 2010 followed the same approach.73Chemtura Corporation v. Government of Canada, UNCITRAL, Award (Aug 2, 2010).

As Suzy Nikièma suggests, there is no clear consensus on the approach for establishing indirect expropriation.74Suzy H. Nikièma, Indirect Expropriation, in Best Practices Series (Mar. 2012), http://www.iisd.org/pdf/2012/best_practice_indirect_expropriation.pdf. The contours of indirect expropriation have been changing, by taking into account more factors including proportionality, substantial deprivation, and the government’s promise to offer compensation. The tests incorporate procedural and substantive issues related to environmental regulation. However, there is a clear trend to give countries greater latitude within that policy space, among others.

Following the trend of greater policy space, the tribunal of Philip Morris v. Uruguay determined that the plain packaging legislation is justified using substantial deprivation argument. As the Marlboro brand remains distinctive on the product packs in the form of words (though not images), the plain packaging legislation does not cause substantial damages to the trademark investment.75Philip Morris Brands Sàrl v. Uruguay, supra note 34, ¶ 276. Moreover, the tribunal decided that the plain packaging legislation is under Uruguay’s “reasonable bona-fide exercise of police powers.”76Id. ¶ 295. In particular, the aspirational provision of protecting “public security and order, public health and morality” is taken as the basis of such police power in the Switzerland-Uruguay BIT.77Id. ¶ 291 (citing Switzerland-Uruguay BIT, supra note 32, art.2(1)).

IV. From Fragmentation to Connection

1. A Narrative of Fragmentation

Although both Australia and Uruguay won in front of the ISDS tribunals, the lawsuits themselves reveal the fragmentation of the international legal system. “Fragmentation of international law,” in Professor Koskenniemi’s words,78UN General Assembly Report of the Study Group of the International Law Commission (Finalized by Martti Koskenniemi), Fragmentation of International Law: Difficulties Arising from The Diversification and Expansion of International Law, A/CN.4/L.682 (Apr. 13, 2006). or “international legal pluralism,” which is a positive term defined by Professor Burke-White,79William Burke-White, International Legal Pluralism, Faculty Scholarship 961 (2004), http://scholarship.law.upenn.edu/faculty_scholarship/961. is the root cause of Australia’s legal dilemma. Borrowing from the structural characterization in these two professors’ works, I argue that the three major aspects of fragmentation are reflected in the plain packaging case: disconnected legal regimes, imbalanced enforcement powers, and direct participation of non-State actors.

1) Disconnected Legal Regimes

Technically speaking, there are no separate international legal regimes for different subject areas such as economic law or health law. However, a distinction between legal regimes exists when different international institutions promulgate treaties among States and the contents of those agreements present a deep degree of coherence within each subject. For example, multilateral agreements such as the International Sanitary Convention, the Kyoto Protocol to the United Nations Framework Convention on Climate Change, the Convention on Biological Diversity, and the WHO FCTC are largely are made on the basis of public health considerations ranging from environmental health to prevention of non-communicable diseases. In contrast, WTO agreements, BITs, and global financial regulations standardized by the G20 focus their attention on the market and are mainly designed to advance economic development.

Sporadic provisions and agreements connect those two heterogeneous regimes, such as the general exceptions clause under the General Agreement on Tariffs and Trade and the General Agreement on Trade in Services, 80General Agreement on Tariffs and Trade, 55 U.N.T.S. 194, art. XX; General Agreement on Trade in Services, 1869 U.N.T.S. 183, art. XIV. and the 2001 Doha Declaration on the TRIPS Agreement and Public Health.81World Trade Organization, Ministerial Declaration of 14 November 2001, WTO Doc. WT/MN(01)/DEC/1, 41 ILM 746 (2002). However, the Doha Declaration is, as its name indicates, declaratory, and the WTO appellate body’s test weighing and balancing trade gains and public policy goals is more procedural than substantive.82Diane A. Desierto, Balancing National Public Policy and Free Trade, 27 Pace Int’l L. Rev. 549 (2015).

2) Imbalanced Enforcement Powers

The enforceability of international rules differs among international legal regimes. For example, in international economic law, the WTO has its own dispute settlement process83Understanding on Rules and Procedures Governing the Settlement of Disputes (Annex 2 of the WTO Agreement), 1869 U.N.T.S. 401. and a retaliation option as a self-help option to ensure compliance.84Id. at art. 3.7. And BIT rights often can be vindicated by ISDS, whose decisions are supposed to be recognized and enforced by the national courts inter alia via the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (also known as “New York Convention”).85Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 330 U.N.T.S. 38 (1968). In contrast, the public health regime has no court-like dispute settlement mechanisms and few viable enforcement mechanisms. Their enforcement depends more on each signatory’s voluntary compliance and moral or political pressure from international society. This difference makes a public health policy particularly vulnerable when it is contested in front of an international judicial tribunal designed to consider economic concerns.

3) Direct Participation of Non-State Actors

Unlike WTO dispute resolution, which solely involves sovereign States, contemporary BITs often rely on private parties for enforcement monitoring. Under ISDS, foreign private companies can file a lawsuit against a State related to their investments in that State, while States in practice waive their immunity rights by signing onto the New York Convention.86However, whether the New York Convention constitutes a waiver of state immunity remains unclear. For more discussions on this issue, see Darius Chan, Sovereign Immunity in the Enforcement of Awards Against States, NYU School of Law Transnational Notes (Sep. 20, 2011), http://blogs.law.nyu.edu/transnational/2011/09/sovereign-immunity-in-the-enforcement-of-awards-against-states/.

This dispute settlement mechanism departs from the traditional Westphalian system by bringing non-State actors onto the international stage. On one hand, direct participation of multinational corporations can better protect investors’ rights from nationalization and abuse of regulatory powers. On the other hand, investors are often purely profit driven and fail to seriously consider the public interest. Examples include cases where Latin American governments have had to pay tremendous amounts to compensate for environmental protection policies.87Antonius Hippolyte, ICSID’s Neoliberal Approach to Environmental Regulation in Developing Countries: Lessons from Latin America, Int’l Community L. Rev. (forthcoming), https://www.academia.edu/16606422/ICSID_s_Neoliberal_Approach_to_Environmental_Regulation_in_Developing_Countries_Lessons_from_Latin_America. The article concludes that “ICSID’s neoliberal approach to environmental governance is acutely illustrated in tribunals’ approach in cases such as Santa Elena v Costa Rica, Pacific Rim Corp v El Salvador, Tecmed v Mexico, Metalclad v Mexico, Aguas del Tunari v Bolivia and Aguas, Argentinas S.A. v Argentina, to name a few.” Philip Morris v. Australia has even inspired commercial lawyers to try pharmaceutical patent regulation through ISDS mechanisms.88Brian King & Viren Mascarenhas, Investment Treaty Protection for IP Rights, Life Sciences Law & Industry Report (July 26, 2013), http://www.freshfields.com/uploadedFiles/King,%20Mascarenhas%20%20Investment%20treaty%20protection%20for%20IP%20Rights.pdf.

2. Plain Packaging Case: Fragments Under a Magnifying Glass

The plain packaging case reflects the three features of fragmentation of international law discussed above. First, BITs and WHO FCTC come from two disconnected and disparate legal regimes. In Philip Morris v. Uruguay, instead of using a cosmopolitan argument on public health, the tribunal resorted to the discourse on States’ police power and sovereign rights. It is understandable as the policing power argument is consistent with the nature of BITs between States and also more likely to be established in front of an ISDS tribunal. However, the cosmopolitan idea of public health embedded in the FCTC and in the WHO’s mission is largely overlooked.

Secondly, the enforcement powers of the two treaties differ greatly. The BIT has been complied with due to the threat of potential international lawsuits through its ISDS provisions, while the WHO FCTC has no mechanism to coerce an uncooperative State.89Id.

Thirdly, the direct involvement of multinational tobacco companies in the ISDS case tears the already fragmented international legal system further apart. A comparison between the WTO and ISDS cases demonstrates this point. Unlike Philip Morris, the Dominican Republic would have had a huge publicity crisis if it had based its argument in the WTO case on commercial interests. So, the Dominican Republic instead challenged the legitimacy of the public policy itself and argued that it was made on the basis of inadequate scientific evidence and was actually not working.90Request for the Establishment of a Panel by the Dominican Republic, supra note 47. This was a smart strategy to increase the likelihood of winning the case under the WTO, but also substantially limited the impact the result of the WTO case would have on the plain packaging policy. That is to say, if Australia lost in the WTO case, it would simply have to conduct better social science research and collect statistics that support its tobacco control policies. Apart from publicity, there is no real benefit for the tobacco industry. As sovereign States remain major sources of power and authority in global governance, if a State wants to regulate an industry out of solid public interest reasons, it is capable of doing so.91For more discussions on this subject, see Stephen Krasner, Globalization, Power and Authority, in The Evolution of Political Knowledge: Democracy, Autonomy, and Conflict in Comparative and International Politics (2004).

Corporations, however, prioritize commercial interests. Some may argue that corporations are bound by corporate social responsibility. Although it is true that more companies are willing to take labor rights or environmental protection as one of their missions—whether because of conscience, good publicity or both—the tobacco industry has not and cannot take such a stance due to the negative public health impact of tobacco products.92Rochelle Cooper Dreyfuss & Susy Frankel, From Incentive to Commodity to Asset: How International Law is Reconceptualizing Intellectual Property, 36 Mich. J. Int’l L. (2014), http://ssrn.com/abstract=2503135. Therefore, big tobacco is extraordinarily active in challenging plain packaging legislation in court and lobbying national governments to protect its commercial interests in spite of the public health implications.

In a nutshell, the intersection of a public interest-less investment treaty, a toothless public health agreement, and reckless multinational corporations in Philip Morris v. Australia together exemplify the fragmentation of the international legal system.

3. Connecting the Dots of International Business and Public Health

The fragmentation of international law reflected in the plain packaging case has drawn scholars’ attention. Professors Voon and Mitchell propose that Australia should “re-evaluate” its BITs and “re-interpret” related terms to make sure that parties to the treaties understand that public health measures like plain packaging are not within the scope of ISDS.93Tania Voon & Andrew Mitchell, Implications of International Investment Law for Plain Tobacco Packaging: Lessons from the Hong Kong–Australia BIT, in 137 Public Health and Plain Packaging of Cigarettes: Legal Issues (Tania Voon et al eds., 2012). Professor Vadi argues that international investment treaties are part of public international law and “should not be considered self-contained regimes,” and that consequently arbitrators should adopt a “systematic interpretation” of investment treaty provisions that automatically takes public health law into consideration.94Valentina S. Vadi, Global Health Governance at Crossroads: Trademark Protection v. Tobacco Control in International Investment Law, 48 Stan. J. Int’l L. 93 (2012). She further suggests introducing clarified provisions related to public health and ISDS into international investment treaties.95Id.

Professors Petersmann and Ruse-Khan’s general ideas are similar to Vadi’s “systematic interpretation.” Specifically, Petersmann advised that international courts apply “constitutional methodologies,” including proportionality, when it comes to competing rights or values,96Ernst-Ulrich Petersmann, How to Reconcile Health Law and Economic Law with Human Rights? Administration of Justice in Tobacco Control Disputes, 10 Asian J. WTO & Int’l Health L. & Pol’y 27 (2015). and Ruse-Khan proposed a “conflict-of-laws” approach and the creation of a legal “hierarchy” among fragmented laws.97Henning Grosse Ruse-Khan, A Conflict-of-Laws Approach to Competing Rationalities in International Law: The Case of Plain Packaging Between IP, Trade, Investment and Health, Max Planck Institute for Intellectual Property and Competition Law Research Paper No. 13-05.

Facing overwhelming direct and indirect lawsuits by multinational tobacco companies and the risk of violating international law and paying millions of dollars as compensation, Australia has taken action domestically. In 2014, the government proposed the Trade and Foreign Investment (Protecting the Public Interest) Bill, which “seeks to prevent the Australian government from entering into any future treaties containing provisions” on ISDS.98Luke Nottage, The ‘Anti-ISDS Bill’ Before the Senate: What Future for Investor-State Arbitration in Australia?, 18 Int’l Trade & Bus. L. Rev. 245-93 (2015).

Australia also advocated for the inclusion of an exemption clause for public health regulations in investment treaties to prevent similar lawsuits in the future, such as in the Trans-Pacific Partnership.99Remy Davison, Ratifying the TPP May Be Tough, But Australia Needs It, The Conversation (Oct. 6, 2015), http://theconversation.com/ratifying-the-tpp-may-be-tough-but-australia-needs-it-48663. The relevant clause is in art 9.15. Trans-Pacific Partnership, art 9.15, Feb. 4, 2016, https://ustr.gov/sites/default/files/TPP-Final-Text-Investment.pdf (last visited Jun.19, 2016). The Trans-Pacific Partnership’s future is unclear, however, after President Trump withdrew from it. Though such inclusion is intended to push the fragmented international legal system towards interconnection, non-State actors are inevitably affecting international law as well, and preventing corporations from accessing international fora is not an effective long-term strategy. The crucial question to address is how to better align international business interests with public health concerns. As set out in the UN Guiding Principles on Business and Human Rights, there are three layers of facilitating human rights in international business: States’ duty to protect, corporate responsibility to respect, and society’s access to remedy.100UN Guiding Principles on Business and Human Rights, A/HRC/17/31 (Jun. 16, 2011), http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf. Though the issue here does not necessarily fit within traditional human rights agendas,101I would argue that it is a right to health on the basis of the 1966 International Covenant on Economic, Social and Cultural Rights. Article 12 provides, “[t]he States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”; and “[t]he steps to be taken by the States Parties to the present Covenant to achieve the full realisation of this right shall include those necessary for . . . [t]he prevention, treatment and control of epidemic, endemic, occupational and other diseases.” However, whether tobacco plain packaging is a human rights issue is not crucial to this comment’s conclusions. the considerations of balancing economic prosperity and non-economic public interest reflect similar principles.

In the current system, non-State actors, including transnational corporations and non-governmental organizations, are major players in international law. However, in the presence of State actors backed by sovereignty, it is foolhardy to expect non-State actors to make a huge difference in issues like plain packaging. States’ duty to protect human rights, including those related to public health, requires national governments to make good international treaties that “connect the dots” of different regimes. In this light, the plain packaging case serves as a lesson for States attempting to address the health-wealth issue through international law. As States are not always able to react effectively to the disconnection of different regimes, one way to address the fragmentation issue is for international courts to provide remedies to bridge the gap between different legal regimes. Also, introducing public interest groups, and not just multinational corporations, to judicial forums is an option worth considering.

V. Conclusion

The story of tobacco plain packaging regulations highlights the fragmentation of the international legal system: the huge gap between the toothless international tobacco control agreement and the compliance provided by investor-initiated international arbitration affects international business-health dynamics. And the implications of this disparity go beyond the business-health issue and reach the issue of public policy-making and its relationship with transnational corporate powers more generally. In order to address this issue, States should fulfill their duties to make sound international treaties and international courts and even non-State actors should act to “connect the dots” to link international business interests with the public interest.

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27. Id.
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29. Id.
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33. See Benn McGrady, Implications of Ongoing Trade and Investment Disputes Concerning Tobacco: Philip Morris v. Uruguay, in Public Health and Plain Packaging of Cigarettes: Legal Issues (Tania Voon, Andrew Mitchell, Jonathan Liberman and Glyn Ayres, eds., 2012), http://ssrn.com/abstract=2046261.
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38. These Australian scholars include Tania Voon, Andrew D. Mitchell, Mark Davison, and Benn McGrady.
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49. Id.
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51. Id.
52. Id.
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55. Id. at art 1(e)(iv).
56. Id. at art 1(e).
57. Philip Morris Asia Limited v. The Commonwealth of Australia, UNCITRAL, PCA Case No. 2012-12, Award, ¶¶ 157-8 (Dec. 17, 2015).
58. Id. ¶¶ 167-70.
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60. Peter D. Isakoff, Defining the Scope of Indirect Expropriation for International Investments, 3.2 Global Bus. L. Rev. 189 (2013).
61. Id.
62. Id.
63. Id.
64. Hong Kong-Australia BIT, supra note 29, art 6(1).
65. Mitchell and Wurzberger, supra note 50.
66. Isakoff, supra note 60.
67. Metalclad Corporation v. The United Mexican States, ICSID Case No. ARB(AF)/97/1, Award, ¶ 98 (Aug. 30, 2000).
68. Técnicas Medioambientales Tecmed, S.A. v. The United Mexican States, ICSID Case No. ARB (AF)/00/2, Award (May 29, 2003).
69. Id. ¶ 97.
70. Methanex Corporation v. United States of America, UNCITRAL, Final Award, ¶ V.D.4 (Aug. 3, 2005). The tribunal wrote, “a non-discriminatory regulation for a public purpose, which is enacted in accordance with due process and, which affects, inter alias, a foreign investor or investment is not deemed expropriatory and compensable unless specific commitments had been given by the regulating government to the then putative foreign investor. . .”
71. Reinhard Unglaube v. Republic of Costa Rica, ICSID Case No. ARB/09/20, Award (May 16, 2012).
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76. Id. ¶ 295.
77. Id. ¶ 291 (citing Switzerland-Uruguay BIT, supra note 32, art.2(1)).
78. UN General Assembly Report of the Study Group of the International Law Commission (Finalized by Martti Koskenniemi), Fragmentation of International Law: Difficulties Arising from The Diversification and Expansion of International Law, A/CN.4/L.682 (Apr. 13, 2006).
79. William Burke-White, International Legal Pluralism, Faculty Scholarship 961 (2004), http://scholarship.law.upenn.edu/faculty_scholarship/961.
80. General Agreement on Tariffs and Trade, 55 U.N.T.S. 194, art. XX; General Agreement on Trade in Services, 1869 U.N.T.S. 183, art. XIV.
81. World Trade Organization, Ministerial Declaration of 14 November 2001, WTO Doc. WT/MN(01)/DEC/1, 41 ILM 746 (2002).
82. Diane A. Desierto, Balancing National Public Policy and Free Trade, 27 Pace Int’l L. Rev. 549 (2015).
83. Understanding on Rules and Procedures Governing the Settlement of Disputes (Annex 2 of the WTO Agreement), 1869 U.N.T.S. 401.
84. Id. at art. 3.7.
85. Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 330 U.N.T.S. 38 (1968).
86. However, whether the New York Convention constitutes a waiver of state immunity remains unclear. For more discussions on this issue, see Darius Chan, Sovereign Immunity in the Enforcement of Awards Against States, NYU School of Law Transnational Notes (Sep. 20, 2011), http://blogs.law.nyu.edu/transnational/2011/09/sovereign-immunity-in-the-enforcement-of-awards-against-states/.
87. Antonius Hippolyte, ICSID’s Neoliberal Approach to Environmental Regulation in Developing Countries: Lessons from Latin America, Int’l Community L. Rev. (forthcoming), https://www.academia.edu/16606422/ICSID_s_Neoliberal_Approach_to_Environmental_Regulation_in_Developing_Countries_Lessons_from_Latin_America. The article concludes that “ICSID’s neoliberal approach to environmental governance is acutely illustrated in tribunals’ approach in cases such as Santa Elena v Costa Rica, Pacific Rim Corp v El Salvador, Tecmed v Mexico, Metalclad v Mexico, Aguas del Tunari v Bolivia and Aguas, Argentinas S.A. v Argentina, to name a few.”
88. Brian King & Viren Mascarenhas, Investment Treaty Protection for IP Rights, Life Sciences Law & Industry Report (July 26, 2013), http://www.freshfields.com/uploadedFiles/King,%20Mascarenhas%20%20Investment%20treaty%20protection%20for%20IP%20Rights.pdf.
89. Id.
90. Request for the Establishment of a Panel by the Dominican Republic, supra note 47.
91. For more discussions on this subject, see Stephen Krasner, Globalization, Power and Authority, in The Evolution of Political Knowledge: Democracy, Autonomy, and Conflict in Comparative and International Politics (2004).
92. Rochelle Cooper Dreyfuss & Susy Frankel, From Incentive to Commodity to Asset: How International Law is Reconceptualizing Intellectual Property, 36 Mich. J. Int’l L. (2014), http://ssrn.com/abstract=2503135.
93. Tania Voon & Andrew Mitchell, Implications of International Investment Law for Plain Tobacco Packaging: Lessons from the Hong Kong–Australia BIT, in 137 Public Health and Plain Packaging of Cigarettes: Legal Issues (Tania Voon et al eds., 2012).
94. Valentina S. Vadi, Global Health Governance at Crossroads: Trademark Protection v. Tobacco Control in International Investment Law, 48 Stan. J. Int’l L. 93 (2012).
95. Id.
96. Ernst-Ulrich Petersmann, How to Reconcile Health Law and Economic Law with Human Rights? Administration of Justice in Tobacco Control Disputes, 10 Asian J. WTO & Int’l Health L. & Pol’y 27 (2015).
97. Henning Grosse Ruse-Khan, A Conflict-of-Laws Approach to Competing Rationalities in International Law: The Case of Plain Packaging Between IP, Trade, Investment and Health, Max Planck Institute for Intellectual Property and Competition Law Research Paper No. 13-05.
98. Luke Nottage, The ‘Anti-ISDS Bill’ Before the Senate: What Future for Investor-State Arbitration in Australia?, 18 Int’l Trade & Bus. L. Rev. 245-93 (2015).
99. Remy Davison, Ratifying the TPP May Be Tough, But Australia Needs It, The Conversation (Oct. 6, 2015), http://theconversation.com/ratifying-the-tpp-may-be-tough-but-australia-needs-it-48663. The relevant clause is in art 9.15. Trans-Pacific Partnership, art 9.15, Feb. 4, 2016, https://ustr.gov/sites/default/files/TPP-Final-Text-Investment.pdf (last visited Jun.19, 2016). The Trans-Pacific Partnership’s future is unclear, however, after President Trump withdrew from it.
100. UN Guiding Principles on Business and Human Rights, A/HRC/17/31 (Jun. 16, 2011), http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf.
101. I would argue that it is a right to health on the basis of the 1966 International Covenant on Economic, Social and Cultural Rights. Article 12 provides, “[t]he States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”; and “[t]he steps to be taken by the States Parties to the present Covenant to achieve the full realisation of this right shall include those necessary for . . . [t]he prevention, treatment and control of epidemic, endemic, occupational and other diseases.” However, whether tobacco plain packaging is a human rights issue is not crucial to this comment’s conclusions.

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