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Case law international health law - master international human rights law University of Groningen (week 6 excluded) Brief overview of cases
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International Health Law – Case lawWeek 1A: regime interaction
WTO Brazil Retreaded Tires Trade Dispute
The WTO Brazil-Retreaded Tires case began when the European Commission (EC), a net
exporter of used tires, challenged Brazil’s ban on the importation of retreaded tires at the
World Trade Organization (WTO). The EC complained that Brazil’s ban was disguised
protectionism for that country’s tires market in violation of several General Agreement on
Tariffs and Trade (GATT) disciplines. A WTO Panel was established in January 2006 to
examine the case.
Used tires and tire material can often be recycled, for example by tire retreading. However,
compared to a new tire, the life of a retreaded tire is generally shorter, ultimately leading to
the faster accumulation of waste tires in an importing country than would be the case with
the import of longer-life new tires. Brazil also claimed that such accumulation of discarded
tires would create health and environmental hazards by providing breeding grounds for
mosquito-borne diseases such as dengue fever, yellow fever, and malaria, and that it would
be technologically impossible to dispose of such tires in its vast territory without negative
environmental and health consequences.
In June 2007, the WTO Panel acknowledged the clear linkage between the import of
retreaded tires and the public health and environmental risks associated with the increased
tire waste resulting from such imports. The Panel’s decision reflected the analysis put forth
by CIEL and partners in an amicus curiae brief submitted to the Panel on July 3, 2006.
While Brazil technically lost the case because the used tires were allowed to be imported,
Brazil could bring itself into conformity with WTO law by putting an end to the imports of
all used tires, without having to change its environmental and health measures (i.e., the
import ban on retreaded tires) as the WTO had objected only to the way in which the
measures were applied.
The case represented the first-ever challenge against trade restrictions imposed by a
developing country for health and environmental reasons and was closely watched by
environmental groups.
, Week 1B: health and human rights
South African Constitutional Court, Minister of Health vs Treatment Action Campaign)
South Africa is in the midst of an HIV/AIDS epidemic with more than 6 million people
infected. In 2,000, with infections of newborns in the range of 80,000 per year, the anti-
retroviral drug Nevirapine offered the potential of preventing the infection of 30 – 40,000
children per year. The drug was offered to the Government for free for five years, but the
South African Government announced it would introduce Mother-To-Child-Transmission
(MTCT) only in certain pilot sites and would delay setting these up for a year, thereby
denying most mothers access to treatment.
The Treatment Action Campaign (TAC) launched a constitutional challenge, alleging a
violation of the right to access health care services and demanding a program to make the
drug available throughout the country. Judge Chris Botha of the High Court ruled in favour
of TAC, ordering that Nevirapine be made available to infected mothers giving birth in
state institutions and that the government present to the court an outline of how it planned
to extend provision of the medication to its birthing facilities, country-wide. The
Government appealed the decision to the Constitutional Court. Botha, J. granted interim
relief pending the appeal.
The Constitutional Court rejected the appeal, finding that the restrictions of Nevirapine to
pilot sites excluded those who could reasonably be included in the program. The Court
ordered the Government to extend availability of Nevirapine to hospitals and clinics, to
provide counselors; and to take reasonable measures to extend the testing and counseling
facilities throughout the public health sector. The Court rejected the argument advanced by
one of the interveners for a distinction between a minimum core content of the right to
healthcare and the obligations imposed on the state in section 27(2) that are subject to
progressive realization and available resources.
The decision establishes a conceptual and remedial framework for judicial review and
enforcement of the obligation to ensure access to healthcare and other esc rights. It
provides an inspiring model for integrating political and legal action. 5,000 people marched
to the court in Johannesburg at the opening of the hearing. But the case also highlights the
unimaginable suffering of so many from an epidemic that has its origins in earlier and
ongoing violations of ESC rights in South Africa and around the world.
The court said that the right to health was justiciable and rejected a minimum core and
instead relied on ‘reasonableness’.
Colombian Constitutional Court, Tutela decision
This judgment addresses 22 Tutelas (claims of constitutional violations) relating to systemic
problems in the health system. The Court also addresses the resolution of a series of
structural flaws in the health system. Violations claimed in the tutelas include state’s failure
to timely reimburse health care providers; access to health services in conditions of
integrality; access to high cost health services and treatments of catastrophic illnesses, such
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