Why and How to Make an International Crime of Medicine Counterfeiting

Abstract

The article explores why c when the counterfeiting of medicines is so prevalent, hard to detect and quietly dangerous or fatal c it remains totally unaddressed and therefore legal in international criminal law. It is argued that criminalizing the counterfeiting of medicines on an international scale would present no legally insurmountable barriers, and would offer significant advantages over the current national-scale approaches. The authors propose a legal definition of ‘counterfeit’, canvass the current legal doctrines that could be arrayed to better criminalize medicine counterfeiting, including classifying the severest instances as crimes against humanity, and explain the mechanisms necessary to close the jurisdictional gaps that are currently exploited by organized criminals who trade in counterfeit medicines across borders. They suggest that a counterfeit medicine treaty should be drafted under the auspices of theWorld Health Organization, and illustrate the feasibility of doing so with existing and developing treaty law on another health danger, tobacco. Borders should not be considered as a shield against the reach of the law and as a protection for those who trample underfoot the most elementary rights of humanity. * Associate Professor in the Faculties of Law and Medicine, University of Ottawa, Canada. [aattaran@uottawa.ca] ** Legatum Fellow in Global Prosperity, American Enterprise Institute, Washington DC, USA. [rbate@aei.org] *** Faculty of Law, University of Ottawa, Canada. All three authors contributed to the work equally. The authors would like to thank the editorial staff and peer reviewers of the Journal for their exemplary help, ideas and advice throughout the publishing process. Their energy and thoughtfulness went far beyond the call of duty, and thanks to them, this paper is clearer and stronger. As authors we are grateful, and needless to say, any remaining problems with the paper are our own. 1 Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Tadic¤ (IT-94-1-AR72), Appeals Chamber, 2 October 1995, x58. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Journal of International Criminal Justice (2011), 1 of 30 doi:10.1093/jicj/mqr005 Oxford University Press, 2011, All rights reserved. For permissions, please email: journals.permissions@oup.com by gest on F ebuary 1, 2011 jicj.oxfjournals.org D ow nladed fom