The Potential Role of International Investment Law in the Commonwealth Caribbean’s NCD Prevention and Control Agenda

• Author: Dr Antonius Hippolyte
• Pages: 186-213

The Potential Role of International Investment

Law in the Commonwealth Caribbean’s NCD

Prevention and Control Agenda

Dr Antonius Hippolyte1

Abstract

The international trade and investment regimes are often seen as constraining

states’ functions, such as the ability to develop and implement meaningful public

health measures like those recommended for prevention and control of chronic

noncommunicable diseases (NCDs). This paper examines the interaction of

international investment rules and NCD-related public health policies with specic

reference to the States’ right to regulate. The paper argues that cases such as Philip

Morris v Uruguay clearly illustrate that there is ample room for accommodation of

public health interests within the international investment regime and that Caribbean

governments should not be hesitant to use their police powers to regulate the public

health sector based on fear of a potential investor-state dispute arising.

Key words

Caribbean, International investment law, ISDS, Noncommunicable diseases,

Public health.

Introduction

Non-communicable diseases (NCDs) are the leading cause of premature

deaths globally2 and account for many deaths in the Commonwealth Caribbean

annually.3 Over 70% of deaths in the region can be traced toNCDs.4 The region’s

NCD mortality rate is the highest in the Americas with seven countries’ death

1 Interim Dean, Faculty of Law, The University of the West Indies Cave Hill Campus, Barbados.

Email: antonius.hippolyte@cavehill.uwi.edu

2 Pan American Health Organization, Noncommunicable diseases in the Region of the Americas: facts and

gures (PAHO 2019) < https://iris.paho.org/handle/10665.2/51483 > Accessed 3 January 2023.

3 George Alleyne, ‘Preventing and controlling noncommunicable diseases in the Caribbean’ (2018)

42 Pan American Journal of Public Health 1 <https://iris.paho.org/handle/10665.2/49572>

Accessed 12 January 2023.

4 Caribbean Public Health Agency, ‘Non-communicable diseases prevention and control’

<https://carpha.org/What-We-Do/NCD/Overview#:~:text=In%20the%20Caribbean%20

Region%2C%20NCDs,of%20death%20due%20to%20NCDs.> Accessed 9 September 2023.

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The Potential Role of International Investment Law in the Commonwealth Caribbean’s NCD

Prevention and Control Agenda

rates exceeding 583.5 per 100,000 population.5 If not controlled, this prevalence

of NCDs in Caribbean countries will have lasting detrimental eects, signicantly

stunting the region’s socio-economic development.6

As the eects of NCDs on Caribbean peoples and countries have become

increasingly appreciated, governments have been encouraged by inter alia the World

Bank,7 and the World Health Organisation (WHO)8 to adopt policies to address the

region’s NCD epidemic.

9

Thus, in 2007, Caribbean Community (CARICOM) Heads

of Government, on the occasion of a special Regional Summit on NCDs adopted the

the Port of Spain Declaration (PoSD),

10

a 14 -point plan aimed at uniting to address

the region’s NCD epidemic.11 Suggested measures include limiting or eliminating

smoking in public places, banning the sale, advertising and promotion of tobacco

products to children, insisting on eective warning labels and introduce such scal

measures as would reduce accessibility of tobacco;mandate the re-introduction of

physical education in schools and promoting programmes aimed at providing healthy

school meals and healthy eating;promoting greater use of indigenous agricultural

products and foods by Caribbean people etc.12

Nevertheless, apart from a few initiatives, such as Saint Lucia’s recent ban on

sweetened drinks in schools;

13

and smoking bans in enclosed public spaces by some

5 ibid.

6 NCD Alliance, ‘World Bank: NCDs Weaken Health Systems & Hinder Economic Growth in The

Caribbean’ (18 November 2011) < https://ncdalliance.org/news-events/news/world-bank-ncds-

weaken-health-systems-hinder-economic-growth-in-the-caribbean> Accessed 3 January 2023.

7 Shiyan Chao, Carmen Carpio and Willy de Geyndt, ‘Non-Communicable Diseases in Jamaica:

Moving from Prescription to Prevention’ En breve No171 <https://documents1.worldbank.

org/curated/en/671411468283470687/pdf/651010BRI00PUB0nBreve01710Printable.pdf>

Accessed 3 January 2023.

8 World Health Organisation, ‘Noncommunicable Diseases Key Facts’ (16th September 2022)

<https://www.who.int/news-room/fact-sheets/detail/noncommunicable-diseases> Accessed

20 December 2022.

9 NCD Alliance (n 6).

10Government of Trinidad and Tobago, Ministry of Health < https://health.gov.tt/sites/default/

les/pdf/20170501-National-Strategic-Plan-Prevention-NCDs-2017-2021.pdf> Accessed 1 March

2023

11Caribbean Public Health Agency, ‘Non-communicable diseases prevention and control’

<https://carpha.org/What-We-Do/NCD/Overview#:~:text=In%20the%20Caribbean%20

Region%2C%20NCDs,of%20death%20due%20to%20NCDs> Accessed 9 September 2023.

12 ibid.

13 ‘Consumption of Sugar Sweetened Beverages Banned at Primary & Secondary Schools’ The

Voice (Castries, 31 December 2022) <https://thevoiceslu.com/2022/12/consumption-of-sugar-

sweetened-beverages-banned-at-primary-secondary-schools/> Accessed 3 January 2023.