The Conflict Between the World Economic and the World Health Systems from a Systemic Approach: The Implementation of the Framework Convention on Tobacco Control By the Parties and the Transnational Tobacco Industry

Wednesday, 13 July 2016
Location: Arcade Courtyard (Main Building)
Cristiano MAIA, University of Bremen, Germany
The paper aims to analyze the conflict of rationalities  between autoconstitutional regimes, which are functionally different and produce not only primary norms, but also secondary ones.

The first case addressed is related to the implementation of legislative measures taken in part by Australia in order to reduce the consumption of tobacco and derivatives. This case is referred to as the Plain Tobacco Packaging Act 2011, by means of which restrictions were applied to the packaging of tobacco related products in order to observe determinations set in the international sphere (art. 11, Framework Convention on Tobacco Control-FCTC).

Another conflict between the transnationally organized tobacco industry and the implementation policies of the FCTC happened in the Oriental Republic of Uruguay, when that State adopted legal measures determining the inception of pictograms into cigarette packaging, which adverted users against the health risks caused by tobacco products.

What should be stressed in both cases is that the tobacco industry took measures against these states in different fora (WTO and ICSID), in order to challenge the enforcement and fulfillment of the FCTC rules.

These cases are examples of strong contraposition between autonomic juridical orders. In order to fulfill an obligation, determined by an international treaty in the sphere of the differentiated system of health (WHO), a State must disobey obligations entered into in other multilateral (WTO) or bilateral treaties (BIT Switzerland-Uruguay), articulated in the sphere of the economic system. Therefore, there is a paradox created in consequence of the overlapping of juridical orders in relationship to the functionally differentiated systems.

The paper tries to tackle these conflicts from the perspective of the systems theory, emphasizing that the collision between the world economic system and the world health system results from the fragmentation of world society.