Soft Law als Brückenbauer zwischen Wirtschaft und dem Schutz der Gesundheit? Eine Analyse des Kodex für die Vermarktung von Muttermilchersatzprodukten

The fragmentation of public international law increasingly causes conflicts of interests. In this regard, one important and controversial issue is the collision of endeavours to protect public health and economic interests. This is important, for example, with regard to non-communicable diseases: It is in the interest of companies to promote alcoholic beverages or unhealthy food, whereas public health protection would demand for a reduction of the latter's consumption. Traditional mechanisms of international law, such as multilateral treaties or customary international law, have proven to be insufficient to solve this multifaceted collision of interest. Thereby, one main challenge is the vacuum concerning the international regulation of transnational companies. The incapacity to deal with such collisions of interests makes it necessary to go beyond traditional legal cooperation in employing innovative approaches. This raises the importance of legally non-binding or soft law-instruments. As the example of the WHO's International Code of Marketing of Breast-milk Substitutes shows, soft law provides an auspicious way to mitigate the collision of interest between public health and the economy. With the Code as an example, this paper analyses the potential of soft law to avoid stagnations in negotiation processes and to involve non-state actors. Both points are crucial in view of the lingering difficulties to reconcile economic interests with public health protection.