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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.

Although WHA recommendations are generally not binding, they

"carry moral or political weight, as they constitute the judgement on a health issue of the collective membership of the highest international body in the field of health."

(Quote: Shubber, S. The International Code, Digest of Health Legislation, Vol. 36, No. 4, 1985, p. 884).

 

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:

Classification
Number of Countries
Law
24
Many provisions law
31
Policy or voluntary measure
23
Few provisions law
21
Some provisions voluntary
17
Measure drafted, awaiting final approval
30
Being studied
27
No action
11
No information
7

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.

Recommendation, Regulation or Convention

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):

In considering the legal form of the Code, WHO staff were well aware that the USA was contributing 25 per cent of the agency's budget. A US official reported:

'The [WHO] Secretariat left no doubt that it is under pressure from both sides, but it wants to find a formula acceptable to the US (quoted in Chetle 1986: 83)'

It was WHO's understanding that, if the Secretariat advocated that the Code be a Recommendation, the USA would help to get an unanimous vote from WHA members. In November 1980, WHO Assistant Director-General David Tejada explained to a meeting of IBFAN representatives that WHO would press for a consensus Recommenndation because it was more likely to be accepted and implemented than a controversial Regulation.

…

When a WHO Executive Board representative introduced the Code to the 1981 World Health Assembly, he explained the Board's decision to suggest adoption of the weaker legal form of the Code was based on:

'which alternative had the better chance of fulfilling the purpose of the code - that is to contribute to improved infant and child nutrition and health. The Board agreed that the moral force of a unanimous recommendation could be such that it would be more persuasive than a regulation that had gained less than unanimous support from Member States."

…

Despite expectations of an unanimous vote, however, the US delegation suddenly announced that it could not support the Code, even as a Recommendation. Thus 118 states voted in favour of the Code, one against, while three countries (Argentina, Japan and the Republic of Korea) abstained.

 

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:

"Independently of any other measures taken for implementation of this Code, manufacturers and distributors of products within the scope of this Code should regard themselves as responsible for monitoring their marketing practices according to the principles and aim of this Code, and for taking steps to ensure that their conduct at every level conforms to them."

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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