Chapters 2–5 of this study focused on the substantive rules governing the balancing of trade and health under WTO law. However, prior to this study, a number of law reform proposals have been made with the intention of addressing the implications of WTO law for public health in the tobacco, alcohol, and dietary contexts. These proposals either explicitly or implicitly concern questions of institutional choice and the allocation of authority. This chapter examines the merits of these proposals in three parts by reference to the concepts of delegation, legalization, and harmonization.

Part 1 examines the issue of delegation, which encompasses the questions of who should make decisions about the lawfulness of public health measures, as well as whether balancing mechanisms should be further theorized so as to minimize the discretion held by delegated authorities such as the WTO Dispute Settlement Body (DSB). In this respect, tobacco-control advocates have argued for the so-called exclusion of tobacco and tobacco products from the scope of trade agreements. This proposal suggests that a specific set of rules should be created in order to theorize the relationship between trade and tobacco control in a more complete manner than the balancing mechanisms found in the WTO-covered agreements.

Part 2 examines the issue of international legalization. Legalization concerns whether international public health instruments should take on binding forms, as in the case of the FCTC, in order to balance out the effects of the trade regime. Public health groups have advocated this approach.