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Raniel Miranda | 12-007

Contemporary Developments in International Law | Atty. Sembrano | Atty. Perillo


Reflection Paper: Tobacco
All individuals possess the right to health. Meier and Mori however argue that this
individual right should be elevated to a collective right in order to afford better protection
to health rights. This is due to globalization and technology, which has transformed health
and disease, in a way that control over an individuals personal health has been
diminished. It is further argued that the right to individual medical care is losing traction
nowadays because societal factors facilitate the spread of illnesses. It is in this light that it
is suggested that the collective right to health should be promoted and strengthened,
instead of merely focusing on individual health. This does not mean however that the
individual right to health should be overlooked. Rather, the society-based collective right
to public health is meant to complement the aforementioned individual right. In essence,
the theory is to recognize, uphold, and protect the collective right to public health because
globalization has led to diseases that produce society-wide effects. The implied
assumption here is that if the collective right to health is recognized, the individual right
is consequently protected.
It is debatable whether the right to public health can be expanded to cover the
health of individuals from different regions. Nonetheless, Townsend et al defines global
health as referring to programs and initiatives that address the health needs of people
across many countries rather than the concerns of particular nations. It involves the
interaction of several actors from both the private and public sector but the recent trend is
the increase in the number of private actors. Townsend et al mention that low and middle
income countries have experienced difficulty in the implementation of the Doha
Declaration and the Framework Convention on Tobacco Control. Because of this, they
argue that a human rights and public goods approach, along with the cooperation of an
independent World Health Organization, and the participation and increased resources of
the low and middle income countries is necessary to adequately attend to the social
determinants of health.
Smoking is one of the leading causes of preventable death. It is also scientifically
and medically accepted that smoking causes detrimental effects on the smokers body and
the non-smokers that inhale the so-called second hand smoke. This is the reason behind
attempts to suppress it through public awareness campaigns, advertisements, medical
announcements, policies, restrictions, enactments, and other means. The movement
against smoking is however opposed by some who claim that individuals have the right to
smoke. Graff responds to this by contending that the right to smoke is not among the civil
rights mentioned in the Constitution. It is neither created by the due process clause nor
the equal protection clause. It is also not a specially protected liberty or privacy right.
Given this, it can be said that government bodies have the wherewithal to establish
restrictions and formulate enactments, which deal with the act of smoking. This is
especially true in light of police power which allows states to regulate behavior and
enforce order in order to safeguard health, safety, morals, and general welfare.
In light of the harmful effects of smoking, Vadi argues that tobacco control is an
important aspect of contemporary public health governance. She mentions however that
international trade law has posed an impediment due to the reduction of tariff and nontariff trade barriers and lowering of prices of tobacco products. Generally speaking,
conflict of interests will inevitably ensue if a State adopts tobacco control measures that
interfere with foreign investments because such regulation may be considered a violation

Raniel Miranda | 12-007


Contemporary Developments in International Law | Atty. Sembrano | Atty. Perillo
of investment treaty provisions protecting the trademarks of tobacco companies. This is
particularly problematic given the incompatibility of promotion of public health and
advancement of the economic interests of the tobacco industry.