18.7 Implementation and development of the FCTC: decisions of the Conference of the Parties

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The FCTC COP is the formal body through which the Parties meet and make decisions about the implementation and development of the Convention. Article 23 requires the COP to keep the implementation of the FCTC under regular review and to take the decisions necessary to promote its effective implementation, including the adoption of protocols, annexes and amendments. As noted in Section 18.4 above, the COP is also required to develop guidelines for the implementation of a number of the Convention's obligations. At its first and second sessions—COP-1, held in Geneva, Switzerland, from 6–17 February 2006, and COP-2, held in Bangkok, Thailand from 30 June–6 July 2007—the COP took a number of significant substantive decisions.

18.7.1 Elaboration of protocols

A protocol is a legally binding international agreement that supplements an existing international agreement through either additional rights or obligations or international cooperative arrangements. Ordinarily, only Parties to the primary agreement are eligible to become Parties to the protocol, and the protocol is only binding on those Parties to the primary agreement that decide to become Parties to the protocol. A protocol is thus a separate instrument from the primary agreement, though closely related to it.

COP-1 recognised the Parties' obligation to consider the elaboration of a protocol to the FCTC setting out appropriate measures that require international collaboration for a comprehensive ban on cross-border advertising, promotion and sponsorship, as required by Article 13.8, and the need to further develop the obligations set out in Article 15 (Illicit trade in tobacco products) in an internationally binding legal instrument.[12] Towards this end, COP-1 established two expert groups tasked with the preparation of protocol templates for consideration by COP-2.

The expert group on cross-border tobacco advertising, promotion and sponsorship comprised experts in public health, telecommunications/informatics, justice/law enforcement and trade/customs from Parties in each of the WHO regions. Representatives of civil society participated in its work. The template presented by the expert group to COP-2 set out a range of possible elements of a future protocol on cross-border tobacco advertising, promotion and sponsorship, including provisions dealing with: identification of contact points within Parties; information collection and sharing; scientific and technical cooperation; technical and financial assistance; investigation and pursuit of legal action; exercise of jurisdiction; recognition and enforcement of foreign judgments; and coordination of activities. The expert group noted the strong obligations and rights already accepted by Parties to the FCTC under Article 13, and the potential value of arrangements other than a protocol to address cross-border advertising, promotion and sponsorship, including the development of guidelines for implementation of Article 13, which are required by Article 7.[13]

After considering the expert group's report, COP-2 decided to establish a working group mandated to: elaborate comprehensive draft guidelines for implementation of both the domestic and cross-border elements of Article 13; and present recommendations on key elements of a protocol on cross-border advertising, promotion and sponsorship, which would be complementary to these guidelines, and other relevant measures.[14] The working group will be led by a group of Parties acting as 'key facilitators', with the participation of a range of other Parties, the officers of the expert group and other experts as necessary, and relevant intergovernmental and non-governmental organisations. The draft guidelines and recommendations will be presented to the COP at its third session (COP-3), which will be held in South Africa in October or November of 2008.

The expert group on illicit trade comprised experts in public health, finance/taxation, law enforcement/justice and customs (excise)/trade from Parties in each of the WHO regions. Representatives of civil society participated in its work. The expert group presented to COP-2 a template setting out a range of measures to be considered for inclusion in a protocol on illicit trade.[15] These included: licensing schemes for participants in the tobacco business; measures to eliminate money laundering; measures to enable the tracking and tracing of tobacco products; record-keeping requirements and obligations on tobacco manufacturers to control their supply chain, with penalties for those that fail to do so; restrictions on internet sales of tobacco products; criminalisation of participation in illicit trade in various forms; and a variety of measures to enhance law enforcement and international cooperation in the area, including powers of search, confiscation and seizure, information sharing, obligations with respect to mutual legal and administrative assistance, and extradition arrangements.

After considering the expert group's report, COP-2 decided to establish an intergovernmental negotiating body (INB) open to all Parties to draft and negotiate a protocol on illicit trade, which will build upon and complement the provisions of Article 15 of the FCTC.[16] The INB will hold its first session in early 2008, and is expected to hold at least two further sessions. Unless the third session of the COP (COP-3) decides otherwise, the INB is expected to submit the text of a draft protocol to the fourth session of the COP (COP-4), which is expected to be held in 2010, for its consideration.

18.7.2 Elaboration of guidelines for implementation of the Convention

As noted in Section 18.4 above, a guideline is a non-binding instrument that provides guidance to Parties to a treaty to assist them in implementing their legal obligations, for example, by offering best practice recommendations or case studies. Articles 7 and 9 of the FCTC require the COP to propose guidelines for the implementation of a number of the key substantive provisions of the Convention: Article 8 (Protection from exposure to tobacco smoke), Article 9 (Regulation of the contents of tobacco products), Article 10 (Regulation of tobacco product disclosures), Article 11 (Packaging and labelling of tobacco products), Article 12 (Education, communication, training and public awareness), and Article 13 (Advertising, promotion and sponsorship). At COP-1, the COP also recognised the need for guidelines on Article 5.3 (protection from industry interference) and Article 14 (tobacco dependence and cessation).[17]

The volume of guideline development work to be undertaken by the COP has required it to prioritise between the various Articles on which guidelines are to be elaborated. COP-1 decided to accord the highest priority to guidelines on Article 8 and one aspect of Article 9, namely testing and measuring of the contents and emissions of tobacco products.[18] It requested the Convention Secretariat to initiate work on these guidelines and, if possible, to present draft guidelines to COP-2. During the intersessional period, two consultative working groups were established towards this end. Each group was led by a group of 'key facilitator' Parties which volunteered to lead the process of guideline development, with the participation of a range of Parties and invited representatives of civil society.

The working group to develop guidelines for implementation of Article 8 was able to finalise a comprehensive draft for consideration by COP-2. This draft was adopted by COP-2 without substantial amendments, bringing into operation the first set of guidelines for implementation of the FCTC.[19] The key principles contained in the guidelines are outlined in 'Protection from exposure to tobacco smoke' in Section 18.4 above. The working group to develop guidelines on testing and measuring of the contents and emissions of tobacco products opted to present a progress report for consideration by COP-2. COP-2 recognised the complexity and long term nature of the task set for this working group. The COP requested the group to continue its work, extending its mandate to Article 10 (disclosure) and specifically including product characteristics, such as design features, within the scope of its work.[20] It requested the group to provide a progress report to COP-3.

In addition to establishing a working group with the mandate of elaborating guidelines for implementation of Article 13 (see 'Elaboration of protocols' above), COP-2 set a work program for guideline development work on Articles 11, 12, 14 and 5.3.[21] A working group was established to elaborate draft guidelines on the implementation of Article 11, to be presented to COP-3 for its consideration. Working groups were also established for each of Article 5.3—to present a progress report, or, if possible, draft guidelines to COP-3—and Article 12, to present a progress report to COP-3. Each working group will be led by Parties acting as key facilitators, with the participation of a range of other Parties and relevant intergovernmental and nongovernmental organisations. In respect of Article 14, the COP requested the Secretariat to elaborate, in consultation with Parties particularly interested in the issue, a first report on tobacco dependence and cessation, to be submitted to COP-3.

18.7.3 Establishment of a study group on economically sustainable alternatives to tobacco growing

COP-1, considering that hundreds of thousands of families, particularly in developing countries, are engaged in tobacco agriculture and that, in the medium to long term, there is likely to be a reduction in demand for tobacco products, recognised the need to promote economically viable alternatives for tobacco workers, growers, and, as the case may be, individual sellers.[22] As such, COP-1 established an ad hoc study group, open to interested Parties to the Convention and representatives of civil society, with the objective of: summarising the uptake of existing economically viable alternatives; reporting on initiatives being taken by Parties in accordance with Article 17 (Provision of support for economically viable alternatives); and recommending to the COP cost-effective diversification initiatives and mechanisms to assess the impact over time of the tobacco companies' practices. The study group on alternative crops held its first meeting in the intersessional period, in conjunction with a public hearing on agricultural diversification and alternative crops to tobacco. The group reported to COP-2 on its discussions, which emphasised the lengthy time frame required for the fulfilment of its tasks. COP-2 mandated the study group, under the altered title 'study group on economically sustainable alternatives to tobacco growing', which better reflects the scope of the group's work, to continue its work and to submit a report to COP-3.[23]