Q. What is the legal status of the International Code and Resolutions?
A. (22 May 2002) The International Code of Marketing of Breastmilk Substitutes was adopted by the World Health Assembly under Resolution 34.22 in 1981 as a "minimum" requirement to be implemented in its "entirety".
The Code was adopted by the World Health Assembly as a Recommendation.
The International Code and Resolutions now have enhanced status in international law following the adoption of the Convention on the Rights of the Child (CRC) and the Innocenti Declaration. When examining compliance with Article 24 of the CRC, the Committee overseeing the CRC evaluates a government's steps in implementing the Code and Resolutions and a number of governments have been warned that they have to take further action.
An increasing number of countries have implemented the Code and Resolutions in national measures. Implementation ranges from voluntary codes of conduct to criminal law. In its 2001 analysis State of the Code by Country (available in the on-line shop) the International Code Documentation Centre recorded the following:
The State of the Code by Country chart gives details country by country. The International Code Documentation Centre runs training courses for policy makers on implementing the Code and Resolutions.
The International Code was adopted by the World Health Assembly as a recommendation rather than the stronger legal forms of a regulation or convention. This followed lobbying by the baby food industry and the United States.
According to Judith Richter in her book "Holding Corporations Accountable" (available in the on-line shop):
Status in the United States
While the US was the only country to vote against the International Code in 1981 it has since supported it when supporting subsequent Resolutions. The United States began supporting subsequent Resolutions in 1994 with Resolution WHA47.5. These reference the past Resolutions and re-affirm support for them.
For example, the 1994 Resolution states: "Reaffirming its support for all these resolutions and reiterating the recommendations to Member States contained therein;"
Obligation of companies
Article 11.3 of the International Code states:
In its submission to the European Parliament Public Hearing into Nestlé baby food marketing malpractice on 22 November 2000, UNICEF stated: "There is support for the proposition that the obligation placed on companies under Article 11.3 is a legal one and not just a moral one." (Referencing Sami Schubber, the former Senior Legal Officer of WHO, Shubber, S., The International Code of Marketing of Breast-milk Substitutes: an international measure to protect and promote breastfeeding. The Hague: Kluwer Law International, 1998.)
UNICEF also told the Public Hearing: "Since the Code itself was adopted as a resolution, these subsequent resolutions have the same legal status as the Code itself and should be read along with it."
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