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mgladkikh · 4 years

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Ukraine-Russia Trade Dispute

In April, 2019, the WTO dispute settlement panel (the “Panel”) reported its findings on the Russia – Traffic in Transit dispute. This dispute is key for a number of reasons: it marks the first time a WTO Panel has ruled on the merits of a matter in which a WTO Member (a “Member”) invoked Article XXI of GATT to justify a violation of WTO obligations; it also sets a precedent that Members cannot argue that Article XXI claims are non-justiciable within the meaning of WTO jurisdiction.

Brief Facts

The dispute concerned Ukraine’s challenges to Russia’s restrictions on traffic in transit by rail and road from Ukraine. More specifically, Russia banned all international cargo transiting from Ukrainian territory and destined primarily for Kazakhstan and the Kyrgyz Republic.

Ukraine launched a complaint against Russia under the WTO dispute settlement mechanism, and requested that a panel be convened to consider the legality of Russia’s transit restrictions and determine whether Russia was acting in accordance to its WTO obligations. Ukraine referenced the following categories of measures applied by Russia:

The 2014 transit restrictions and bans;

The 2016 general transit restrictions and ban; and

The 2016 product-specific transit restrictions and ban.

Ukraine claimed these measures failed to comply with Russia’s obligations under Articles V and X of GATT 1994, and Russia’s related commitments under its Accession Protocol.

Russia did not bother to rebut Ukraine’s claims, or address the factual evidence and legal arguments made by Ukraine. Instead, Russia argued that the impugned transit restrictions made appropriate use of Article XXI(b)(iii) in protecting its essential security interests. Russia also objected to the WTO’s intervention on jurisdictional grounds, citing the wording in the chapeau of Article XXI(b) to claim that Article XXI national security exceptions were non-justiciable.

The Jurisdictional Issue

Russia submitted that the Panel had no jurisdiction to review invocations of Article XXI(b)(iii) due to the “self-judging” character of the provision. Accordingly, the Panel could go no further than recognizing when an Article XXI security exception had been invoked. Russia cited the specific phrase “which it considers” – found in the chapeau of Article XXI(b) – in support of this. In other words, Russia’s position was that Article XXI conferred sole discretion to the Member who invoked it to determine the necessity, form, design and structure of an appropriate exemption. Russia argued that to find otherwise would upset the balance of rights and obligations under the WTO Agreements, and endanger the multilateral trading regime.

In contrast, Ukraine claimed that Article XXI was designed as an affirmative defence mechanism to “rescue” protective measures that would otherwise be considered in violation of WTO obligations under the GATT 1994. In other words, Members were not meant to have full and unbridled discretion to determine the proper scope of security exceptions under Article XXI.

In locating its jurisdiction in light of these arguments, the Panel analyzed the phrase “which it considers”, found in the chapeau of Article XXI(b):

Nothing in this Agreement shall be construed…to prevent any contracting party from taking any action which it considers necessary for the protection of its essential security interests…

The Panel found that the security exception in Article XXI served as a restrictive qualifying clause to the discretionary right of Members to invoke trade barriers in emergency situations. The Panel referred to Article 31(1) of the VCLT in adopting a purposive approach to interpreting Article XXI(b)(iii), which states that:

A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

The Panel ultimately ruled that it possessed the power to review whether an impugned national measure satisfied the requirements of Article XXI since the implication of Article 31(1) was that Members had to apply all GATT 1994 provisions in good faith. The Panel, therefore, could review whether this was the case, and whether the challenged measures could adequately function to protect essential security interests. This rejected Russia’s jurisdictional argument that Article XXI(b)(iii) exemptions were completely “self-judging”.

In other words, the presence of “which it considers” in the chapeau of Article XXI(b) did not preclude WTO scrutiny and objective assessment of Member claims falling under specific security exceptions. To find otherwise would arguably defeat the object and purpose of Article XXI, which was to provide Members with relief from trade obligations where compliance would threaten national security interests.

The Security Issue

In determining whether the challenged measures fell within the Article XXI(b)(iii), the Panel first analyzed whether they were taken in time of war or other emergency in international relations. The Panel interpreted an “emergency in international relations” as a “situation of armed conflict, or of latent armed conflict, or of heightened tension or crisis, or of general instability engulfing or surrounding a state”.

An important statement was made in connection to this: war or similar emergencies in international relations had to involve a fundamental change of circumstances that radically altered the factual matrix in which the consistency of a challenged measure with WTO obligations was to be considered. In other words, protectionist measures could be acceptable if there was an armed conflict and the action at issue was taken in response to the war.

In the case of Ukraine and Russia, the Panel found that the 2014 Ukrainian Revolution hit very close to the “hard core” of war or armed conflict. Given Ukraine’s proximity to Russia, as well as Russia’s involvement in the Crimean Peninsula, the Panel sided with Russia in accepting the plausibility that the challenged measures were related to the 2014 crisis and were appropriately aimed at mitigating security threats.

Notable Points

The Panel began its analysis of the dispute by mentioning that “it is not relevant to this determination which actor or actors bear international responsibility for the existence of this situation to which Russia refers. Nor is it necessary for the panel to characterize the situation between Russia and Ukraine under international law in general”. This is remarkable given Russia’s ongoing military and political involvement in Eastern Ukraine, and its illegal annexation of Crimea in 2014, and could have implications in the broader dispute between Ukraine and Russia. Most notably, this raises questions of whether Russia relied on a problematic situation to which it contributed so as to justify invoking Article XXI(b)(iii) and deviating from its WTO obligations. This could be viewed as a bad faith treatment of Article XXI by Russia, and could potentially set a bad precedent for Members in the future. That said, the Panel did set a very high barrier to invoking Article XXI(b)(iii) in its report, and it may therefore be unlikely that other Members will follow in Russia’s footsteps down the road.

The Panel also acknowledged that the challenged transit bans and restrictions were not so remote from or unrelated to the 2014 crisis in Ukraine that it was implausible for Russia to implement them in furtherance of protecting its essential security interests.

The “essential security interests” of a state were interpreted by the Panel to mean interests relating to the quintessential functions of the state. The Panel observed that while the specific interests at issue could be expected to vary with changing circumstances, the “quintessential” functions of a state generally referred to the protection of the state’s territory and its population from external threats, and the maintenance of law and public order internally. Importantly, the good faith principle would be applied in determining whether the challenged measures were not implausible as measures to protect essential security interests.

Conclusion

Russia – Traffic in Transit stands to be one of the WTO’s most important decisions in recent times as the first ruling in which the WTO touched upon the justiciability of the national security exception. The Panel clarified that while Article XXI(b) did grant Members the discretion to independently designate “essential security interests”, it was nevertheless justiciable with respect to determining whether challenged measures invoked under Article XXI complied with the enumerated requirements.

Further Readings

https://www.wto.org/english/res_e/publications_e/ai17_e/gatt1994_art21_jur.pdf

https://www.ft.com/content/5ff5538c-5a0d-11e9-9dde-7aedca0a081a

https://www.tralac.org/blog/article/14151-what-does-the-national-security-exception-in-gatt-mean.html

https://www.mondaq.com/russianfederation/International-Law/870822/Measures-Concerning-Traffic-In-Transit-WTO-Dispute-Settlement-System-Report-Of-The-Panel

https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds512_e.htm

https://www.wto.org/english/res_e/booksp_e/gatt_ai_e/art21_e.pdf

https://www.politico.eu/article/wto-sides-with-russia-in-landmark-national-security-ruling/

https://www.ru.nl/law/research/radboud-economic-law-conference/radboud-economic-law-blog/2019/russia-ukraine-wto-panel-report-security-exception/

https://sk.ua/publications/russia-measures-concerning-traffic-in-transit-wto-dispute-settlement-system-report-of-the-panel/

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mgladkikh · 5 years

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Physicians and BC’s Opioid Crisis

In 2016, the BC’s provincial health officer declared a public health emergency in response to the rise of substance abuse-related overdoses and deaths. Illicit drug deaths in BC have dramatically increased since 2012. One of the main contributors to this upsetting trend was the introduction of fentanyl into the illicit drug market. Fentanyl is a type of opioid that is generally used in hospital settings under strict supervision. It can also be prescribed to people with long-term, severe pain by a doctor. Due to its powerfully addictive nature, fentanyl – like other opioids – has become a popular and cheap street drug.

This has had significant implications on practice standards for physicians in British Columbia: the BC College of Physicians and Surgeons (the “College”) has taken a proactive role in developing safe practice guidelines for prescribing opioids safely and effectively and minimizing risk to patients and the public. The College’s 2016 Safe Prescribing of Drugs with Potential for Misuse/Diversion document (the “Document”) sets out reformed rules for prescribing drugs with abuse potential. This is likely to impact future medical malpractice litigation.

Standards vs Guidelines

The Document is noteworthy because it establishes both professional standards as well as guidelines for physicians in BC. It distinguishes “standards” from “guidelines” as follows:

A standard reflects the lowest bar of professional behaviour and ethical conduct on a specific topic/issues expected by the College of all physicians. It reflects relevant legal requirements enforceable under the Health Professions Act and College bylaws.

A guideline reflects the recommended course of action, established on the values, principles and duties of the medical profession, on a specific topic/issue as set out by the College. Physicians may exercise reasonable discretion in conforming to established guidelines, and may deviate from them where they have a comprehensively documented rationale to do so.

The Scope of Malpractice Liability

In BC, physicians must provide “proper medical care” within the scope of their expertise. In other words, physicians must conform to customary practices of other physicians in their field of expertise in Canada. Physicians who do not do so are likely committing medical malpractice.

The Standard of Care for Physicians

To make a medical malpractice care, the plaintiff must establish that their physician failed to meet their standard of care. In Canada, the standard of care in the context of medical malpractice was identified in Ter Neuzen v Korn:

Physicians have a duty to conduct their practice in accordance with the conduct of a prudent and diligent doctor in the same circumstances. In the case of a specialist (e.g. in the case of a gynecologist and obstetrician), the physician’s conduct must be assessed in light of the conduct of other ordinary specialists practicing in the field of specialty, who possess a reasonable level of knowledge, competence and skill expected of such professionals in Canada.

This does not mean that physicians have to act perfectly; rather, they have to act “prudently” and “reasonably”. In Ter Neuzen, the Court determined that conformity with an approved practice is almost a total defence to medical malpractice, except in rare cases.

Liability in medical malpractice is not imposed on the basis that risks materialized in the course of providing viable and recognized treatment. In other words, a physician who performs a risky procedure that is considered standard practice is not liable in malpractice if the patient starts suffering side-effects.

Evolving Medical Knowledge

Physicians are expected to keep abreast of new developments in standards of care for patience. However, where new procedures/practices have developed, physicians will not be found liable for practicing “old” techniques unless those techniques have been proven ineffective/inefficient by comparison.

In Ediger v Johnston, the Court recognized that guidelines do not determine the legal standard of care, but may inform its application.

Interpreting the Document

The Compendium of Pharmaceuticals and Specialties (the “CPS”) is a reference book published by the Canadian Pharmacists Association that is meant to help healthcare professionals prescribe safely and appropriately. Courts have previously interpreted the CPS guidelines as “recommendations” or “warnings”, akin to the Document’s guidelines.

The standards set out in the Document are worded to avoid such an interpretation; this restricts the discretion that physicians may exercise in professional practice. Importantly, some standards do permit some discretion to be exercised. For example, standard 5 provides that physicians must always prescribe the lowest effective dosage of opioid medication; but what qualifies as the “lowest effective dosage” may vary under the circumstances. Conversely, standard 13 provides that physicians must not prescribed combinations of stimulants with benzodiazepines and/or sedative hypnotics; this plainly identifies forbidden conduct which leaves no room for the exercise of individual physician discretion. Therefore, to avoid medical malpractice claims or professional discipline from the College, physicians must act in strict compliance with certain standards and with little derogation from other standards as set out in the Document. This can, understandably, be confusing for some physicians.

Consequences for Physicians

While it is likely to be predicative of the legal standard of care, the Document does not set the standard of care at common law. In fact, there is no single document that can unilaterally determine when a physician has acted negligently in prescribing medication. However, physicians who act outside the confines of the Document are potentially opening themselves up to malpractice claims in court.

More notably, physicians who fail to follow the Document likely face discipline proceedings by the College. The College’s statutory grant of authority permit it to determine and enforce professional standards in the public interest. The Document is one way in which the College has set out minimum professional and ethical obligations with respect to writing prescriptions. This indicates that compliance with the Document is necessary for the College to fulfill its public protection mandate.

In the administrative law context, there is no conceptual gap between the minimum professional and ethical behaviors set out in the Document and the conduct that physicians must abide by in order to avoid discipline by the College. The College has the power to resolve disciplinary matters with discretion, and departures from the Document may result in a variety of sanctions.

Challenges Facing Physicians

Patients – especially those who are already struggling with substance abuse problems – can use smoke and mirrors to manipulate or pressure physicians into inappropriately prescribing drugs. For instance, in 2017, the College discovered a BC man who “doctor shopped” to obtain opioids and benzodiazepines; over the course of 4 months, the man had gotten 10 different doctors to write 26 prescriptions in order to perpetuate his addiction. The College provided that all doctors involved in the man’s care were directed to attend courses on safe prescribing practices.

This matter demonstrates the College’s commitment to upholding its new standards and guidelines that govern the medical use of opioids and other drugs with potential for abuse. While it cannot be said that the Document definitively sets out a new legal standard of care for physicians in BC, it is likely that the Document will guide the future application of the physician standard of care in BC’s courts.

The College’s stringent expectations of physicians has created a “prescription chill”. Patients who legitimately require opioids, stimulants and benzodiazepines have increasingly experienced difficulties in obtaining such medications. This has meant that, at times, physicians have redirected patients to alternative treatments like physiotherapy which are not covered by MSP and can be expensive without extended coverage. But while physicians are not supposed to discriminate against new patients who present challenging issues regarding drug use, they are also not expected to prescribe inappropriately in accordance with patient demands.

Conclusion

A 2019 study found that regulatory interventions have had a modest effect in influencing prescribing patterns of health care providers, with observed decreases in the number of existing users of opioids and benzodiazepines. However, the study found little effect in overall consumption of opioids and benzodiazepines at the population level. This means that the Document has had an effect on the prescribing behaviors of physicians in BC.

At present, physicians in BC are trapped between a rock and a hard place: they are tasked with striking a precarious balance between prescribing drugs with a potential for abuse to patients who legitimately need them, and curbing the over-prescription of those same drugs for the rest of the population to tackle the drug abuse epidemic. This difficulty is compounded by the fact that it is not yet clear whether/how big of a conceptual gap exists between the College’s and the conduct that satisfies the legal duty of care. It will be interesting to see how courts will apply the legal standard of care in view of the strict professional and ethical obligations set out in the Document, and how that legal standard of care will direct physicians to take on the opioid crisis in BC.

FURTHER READING:

http://www.cmaj.ca/content/cmaj/189/40/E1270.full.pdf

https://vancouversun.com/news/local-news/prescribing-of-adhd-stimulants-has-soared-in-b-c-agency-warns

CLEBC, “The Legal Significance of the College of Physicians and Surgeons New Prescribing Standards for Opioids”

https://www2.gov.bc.ca/assets/gov/birth-adoption-death-marriage-and-divorce/deaths/coroners-service/death-review-panel/literature_review_-_drp_report_on_illicit_drug_overdose_deaths.pdf

https://www2.gov.bc.ca/assets/gov/birth-adoption-death-marriage-and-divorce/deaths/coroners-service/statistical/illicit-drug.pdf

https://pdfs.semanticscholar.org/3e2d/99c4d906cd1c19a83d6e0988c9ae7d7dae02.pdf

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mgladkikh · 5 years

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Technology and Privacy Rights

In recent years, technology has come to the forefront of social life. For many people, old and young alike, technology has become integral and necessary to the daily maintenance of everyday living. It is easy to understand why this is so: technology provides unparalleled comfort and accessibility for relatively little hassle. And yet, an unseen aspect of this lifestyle is that surveillance and monitoring are increasingly intensifying, as are the technologies that extend their reach. This kind of surveillance is responsible for the “BarWatch” program in BC.

What is BarWatch?

BarWatch is a scan-to-enter system largely seen in bars, clubs and some restaurants. While BarWatch was originally intended to combat gang presence, its reach has since stretched to include general rowdyism and related types of uncivil behavior associated with nightclub patrons.

How Does BarWatch Work?

The purpose of BarWatch is to promote safety and security of patrons in licensed establishments; all visitors attempting to enter a participant establishment must present identification for scanning before they can enter. Any patrons that have previously engaged in unlawful or uncivil behavior are flagged at the scanner and prevented from entering the establishment. Participant establishments must warn patrons that they are members of BarWatch by affixing signs at entryways that contain the BarWatch “code of conduct”.

Who Participates in BarWatch?

Participant establishments that operate and own scanning systems subscribe to an open list of banned patrons. Most bans last one year. Once the ban has run out, the problem patron is moved from the open list to a closed list of banned patrons specific to the establishment originating the ban. This is because problem patrons are often banned—either permanently or temporarily beyond a year—from the establishment that originated the ban in addition to being placed on BarWatch. Such closed lists are not available to other participant establishments.

PatronScan is the company that provides the scanning devices and stores the scanned IDs on a private server. Although its privacy policy states that any data gathered is deleted every 24 hours, PatronScan actually deletes information permanently from the server after 90 days in most jurisdictions. The police are the only authority with the right to store any such information beyond the 90 day period.

The local police partner with participant establishments and actively sponsor and support the BarWatch program. This partnership operates similarly to the partnership between law enforcement and businesses under the Inadmissible Patron Program.

What are the Concerns?

According to the BC Civil Liberties Association, BarWatch is a method of screening, surveillance and black-listing that lacks transparency. It is unclear what rules customers must follow in participant establishments and there is no publicly-accessible information/catalogue regarding what information the scanning system collects and where personal data is kept. Moreover, there is no way to appeal a decision to remove someone from an establishment, and it constricts people’s life choices. Quite possibly it also punishes those who have left the criminal lifestyle, become rehabilitated and rejoined mainstream society. It is also rife with opportunities for abusive banning practices, and may have unintended but harmful consequences for minorities, who are profiled and excluded. This is consistent with BarWatch’s commitment to putting “safety before privacy”, which contains the implication that safety must come at the expense of privacy and that the two cannot exist cooperatively and in tandem.

Collection of Data

When the BarWatch program was initially piloted, participant establishments employed the TreoScope ID scanning system to gather personal data from patrons. This system recorded the age, name, gender, expiry date, driver’s license number and photograph of every patron upon entry at any participant establishment. However, in 2009, BC Privacy Commissioner, David Loukidelis, issued a report stating that a Vancouver bar using Treoscope was collecting and retaining too much personal data from patrons.

In his report, Loukidelis submitted that privacy legislation should be viewed in the same light as human rights legislation, in that it seeks to protect and respect the dignity of individuals. He argued that proportionality and reasonableness should properly limit what surveillance is permissible by private and public entities. Loukidelis found that the bar was collecting too much information in relation to deterring violence and preventing under-age patrons from entering. He suggested that perhaps the Treoscope system was less about deterring violence and promoting public safety, and more about creating evidence to be used to defend against a potential lawsuit.

This report brought changes to the BarWatch system: participant establishments switched to the PatronScan system which collects only names, dates of birth and photographs. Despite this, the debate surrounding BarWatch’s legality has continued.

Accessing Information Illegally

One major concern surrounding BarWatch has been police access to the BarWatch database. Although the database (with respect to both open and closed lists) is owned by the participant establishments themselves, police can access it through a court order when dealing with issues of public safety.

In some circumstances, this has worked well: in 2013, a Victoria man was apprehended by police on attempted murder charges after they were granted a warrant to view a BarWatch database. The charges were connected to the man’s behavior in a participant establishment and the database belonged to the club that originated the ban.

In other circumstances, this has worked quite poorly: in 2015, management at Studio Nightclub & Lounge (“Studio”) in Vancouver granted police access to their BarWatch database in the course of a criminal investigation. The BC Supreme Court would later reject the evidence obtained by police from the database because police failed to obtain judicial authorization before requesting that Studio turn over its records from the night in question. The information gathered by police from the database was key to linking the alleged assailant to an act of violence in the Granville Entertainment District. The photographic information (connected to the accused’s name) turned over by Studio along with street surveillance footage taken of the suspect provided the police a reasonably clear picture of the accused’s footsteps on the night in question. According to the defence, this amounted to a breach of privacy and Charter rights. In providing its reasoning, the Court agreed: there was no evidence that Studio had affixed the necessary signage warning patrons about how the information obtained by BarWatch would be used or stored, and that the nature of the information collected by BarWatch afforded the accused a reasonably expectation of privacy. In conclusion, the Court found the accused not guilty because the police had violated the accused’s Charter rights by obtaining data from Studio’s BarWatch without a warrant.

Arguably, this finding may fall into a pattern of police activity that skirts the rule of law for the sake of convenience. Around 2013, a Freedom of Information Request revealed that the Victoria Police were encouraged to use BarWatch to track the movements of a suspicious individual. This is problematic because the BarWatch program is not designed to provide police with opportunities to retrospectively track citizens. When law enforcement engages in this kind of behavior, it raises serious legal and ethical concerns about the failure of public authorities to comply with provincial privacy legislation.

Nothing to Hide Argument

Much of the debate about the legalities of BarWatch seem to stem around the idea that “if you’ve got nothing to hide, you’ve got nothing to fear”. Notably, this same idea has been used to promote and legitimize the CCTV program practiced across the United Kingdom. Privacy advocates and data security experts alike have described the popularity of this idea as the belief that “the dominant orientation is that mechanisms of surveillance are directed at others”. In other words, most people wrongly assume that surveillance monitoring is not directed at them, but rather at some vaguely-defined societal subset comprised entirely of ill-intentioned delinquents. This suggests a lack of appreciation for the full scope of privacy rights which cannot technically be infringed upon without adequate justification.

In Conclusion

Over the past year, the pro-BarWatch community in Vancouver has unsuccessfully advocated for CCTV on Granville Street. BarWatch Vancouver has also recently announced a partnership with Vancouver Transit authorities to bar individuals who engage in problematic behavior on public transit from entering participant establishments. While police have argued that information would only be passed on from police to BarWatch if the public was at risk, the BC Civil Liberties Association has argued that this sounds “an awful lot like profiling people on transit to give information to a private entity”. This may spell the need for greater oversight over decision-making by BarWatch partners, especially if police are collecting and passing information to private organizations and other police departments for intelligence services. Arguably, if people behave egregiously and violently, there are adequate legal consequences in place to address and curb unwanted behavior without risking function creep. As it stands now, the BarWatch lobby is powerful and may continue to eat away at privacy rights for the foreseeable future.