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

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The Conference of the Parties (COP) to the World Health Organization (WHO) Framework Convention on Tobacco Control (FCTC)ⁱ is the formal body through which the Parties meet and make decisions about the implementation and development of the Convention. Article 23 of the FCTC requires the COP to keep the implementation of the FCTC under regular review and to take the decisions necessary to promote its effective implementation.

The COP held its first regular session, COP-1, in Geneva, Switzerland from 6–17 February 2006. Subsequent regular sessions have rotated through the WHO regions, with COP-2 held in Bangkok, Thailand from 30 June–6 July 2007, COP-3 held in Durban, South Africa from 17–22 November 2008, and COP-4 held in Punta del Este, Uruguay from 15–20 November 2010. COP-5 is to be held in the Republic of Korea in the last quarter of 2012.

The COP's regular sessions allow the Parties to the FCTC to take significant substantive decisions, such as to adopt guidelines, as well as to provide for a program of intersessional work to support the implementation and further development of the Convention. Such work includes:

• elaborating guidelines
• negotiating protocols
• requesting the preparation of technical reports and recommendations
• mobilising financial resources and mechanisms of assistance
• overseeing reporting and exchange of information
• facilitating international cooperation.

The COP's work is supported by the Convention Secretariat, an independent body housed within WHO's Geneva offices and mandated under Article 24 of the FCTC to perform the treaty secretariat functions specified by the Convention and determined by the COP. The Secretariat cooperates with other international agencies and bodies, particularly WHO's Tobacco Free Initiative and other relevant WHO offices, to carry out the work program mandated by the COP.

18.7.1Elaborating guidelines

As noted in Section 18.4, a guideline is a non-binding instrument adopted by an international body to provide assistance to countries in addressing specific issues at the national or international level. Article 7 of the FCTC requires the COP to propose appropriate guidelines for implementation of the non-price measures to reduce demand for tobacco in Articles 8 to 13. The guidelines are intended to assist Parties in implementing their legal obligations under these articles. As agreements between the Parties subsequent to conclusion of the Convention regarding the interpretation and application of its provisions, the guidelines must be taken into account in legal interpretation of the FCTC (Vienna Convention on the Law of Treaties, Article 31).ⁱⁱ While some elements of the guidelines impact directly on the interpretation of Parties' legal obligations, others are recommendatory.

As of November 2010, the COP had adopted guidelines for implementation of all the provisions requiring non-price demand reduction measures (see Section 18.4): Article 8 (Protection from exposure to tobacco smoke), Articles 9 and 10 (Regulation of the contents of tobacco products and regulation of tobacco product disclosures), Article 11 (Packaging and labelling of tobacco products), Article 12 (Education, communication, training and public awareness), Article 13 (Tobacco advertising, promotion and sponsorship), and Article 14 (Tobacco dependence and cessation). The COP had also adopted guidelines for implementation of Article 5.3 (Protection of public health policies with respect to tobacco control from commercial and other vested interests of the tobacco industry) (see Section 18.2). The guidelines adopted for implementation of Articles 9 and 10 at this time were partial only, with additional guidelines to be elaborated in a 'step-by-step' process.

Each set of guidelines was drafted intersessionally by a working group of Parties and representatives of intergovernmental and non-governmental organisations with relevant expertise. The draft guidelines were then considered and adopted by the COP: COP-2 adopted the guidelines for implementation of Article 8; COP-3 adopted the guidelines for implementation of Articles 5.3, 11 and 13; and COP-4 adopted the guidelines for implementation of Articles 12 and 14 and partial guidelines for implementation of Articles 9 and 10. As well as continuing the working group elaborating guidelines for implementation of Articles 9 and 10, COP-4 decided to establish a working group of fiscal and health experts to elaborate guidelines for implementation of Article 6 (Price and tax measures to reduce the demand for tobacco).ⁱⁱⁱ

18.7.2 Negotiating protocols

A protocol is a legally binding international agreement that supplements an existing international agreement through additional rights or obligations or 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 setting out appropriate measures that require international collaboration for a comprehensive ban on cross-border tobacco 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.^iv Towards this end, COP-1 established two expert groups tasked with the preparation of protocol templates for consideration by COP-2.

18.7.2.1 Cross-border tobacco advertising, promotion and sponsorship

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 elements of a possible 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 co-ordination of activities.^v

Noting that the significant obligations to which Parties have already committed in respect of international cooperation under various articles of the FCTC are applicable to tobacco advertising, promotion and sponsorship, the expert group recommended that the need for a protocol on cross-border advertising, promotion and sponsorship be reconsidered after guidelines and other measures to promote and facilitate cooperation had been put in place. As noted in Section 18.4, the working group that elaborated the guidelines for implementation of Article 13 developed detailed recommendations on measures to facilitate international cooperation.^vi These recommendations were noted by COP-3^vii and partially adopted by COP-4, which decided to establish a standing expert group on cross-border advertising, promotion and sponsorship.^viii

18.7.2.2 Illicit trade in tobacco products

The expert group on illicit trade in tobacco products 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.^ix 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
• a variety of measures to enhance law enforcement and international cooperation, 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.^x The INB held four negotiating sessions between COP-2 and COP-4, where a report and partial draft protocol were considered.^xi As noted in the report, the draft protocol reflected the INB's agreement on 26 draft provisions for consideration by the COP, while 23 remained under discussion by the INB. The provisions on which the INB had reached agreement included provisions dealing with tracking and tracing of tobacco products, information sharing, law enforcement cooperation, liability of legal persons, special investigative techniques, and institutional arrangements.

COP-4 acknowledged the progress made and decided to extend the INB's mandate for a final session that would finalise a draft protocol text for consideration by COP-5.^xii The COP also decided to establish a small informal working group to work during the period between COP-4 and the INB's final session in early 2012. The working group will deal with certain draft articles on which the INB has not reached agreement, and on matters referred by INB-4 to COP-4. It will also consider how the text of the draft protocol, and its implementation, can best complement existing relevant agreements and arrangements, including the United Nations Convention against Corruption and the United Nations Convention against Transnational Organized Crime, in order to maximise synergy and to avoid duplication. This work is expected to involve discussions with the United Nations Office on Drugs and Crime, the World Customs Organization and other relevant international bodies.

18.7.3 Requesting technical reports and recommendations

In addition to the elaboration of formal instruments such as guidelines and protocols, the COP may fulfil its mandate to promote effective implementation of the FCTC by requesting the preparation of informal documents such as reports and recommendations. These documents are prepared to facilitate discussion by the COP, including consideration of the need for formal instruments.

18.7.3.1 Economically sustainable alternatives to tobacco growing

COP-1, taking into account Parties' obligations, including under Article 17 (Provision of support for economically viable alternative activities)—and 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.^xiii As such, COP-1 established an ad hoc study group, open to interested Parties to the Convention and representatives of civil society, with the objectives of summarising the uptake of existing economically viable alternatives, reporting on initiatives being taken by Parties in accordance with Article 17, 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 held two meetings in the intersessional periods between COP-1 and COP-3. Its reports to the COP emphasised the long-term nature of the tasks assigned to it.

COP-3, considering that the pursuit of alternative livelihoods to tobacco growing should be addressed with a long-term sustainable approach and from a development perspective—and mindful of the important work being undertaken in this area by other agencies with recognised expertise (including the United Nations Food and Agriculture Organization, the United Nations Development Programme, the United Nations Environment Programme and the World Bank)—decided to establish an FCTC working group on economically sustainable alternatives to tobacco growing to replace the study group.^xiv The working group's mandate covered a range of tasks, including promotion of research and information exchange, identification and development of mechanisms and areas of cooperation with relevant intergovernmental and non-governmental organisations, and elaboration of policy options and recommendations for implementation of Articles 17 and 18 of the Convention. COP-4 requested the working group to continue its work and to submit a working report to COP-5.^xv

18.7.3.2 Liability

COP-4 decided to initiate work on Article 18 of the Convention (Liability), requesting the Convention Secretariat to prepare jointly with WHO's Tobacco Free Initiative 'a comprehensive report on the matter of liability in the context of Article 18', including possible mechanisms on appropriate means by which the COP could support Parties in their activities in accordance with this Article.^xvi The report is to be presented for consideration by COP-5.

18.7.3.3 Smokeless tobacco products and electronic cigarettes

COP-4 decided to request the Convention Secretariat to prepare jointly with WHO's Tobacco Free Initiative 'a comprehensive report based on the experience of Parties on the matter of smokeless tobacco products and nicotine delivery systems including electronic cigarettes'.^xvii The report is to be presented for consideration by COP-5.

18.7.4 Mobilising financial resources and mechanisms of assistance

Under Article 26 (Financial resources), COP-1 was required to review existing and potential sources and mechanisms of assistance to facilitate implementation, based on a study conducted by the Convention Secretariat and other relevant information, and consider their adequacy. The COP shall take the results of this review into account in determining the necessity to enhance existing financial mechanisms or to establish new mechanisms to channel additional financial resources, as needed, to developing country Parties and Parties with economies in transition to assist them in meeting the objectives of the Convention.

Following the review, COP-1 recognised 'the urgent need for assistance to developing country Parties and Parties with economies in transition to support them in their implementation'.^xviii The COP-1 decision on financial resources and mechanisms of assistance:

• called upon developing country Parties and Parties with economies in transition to conduct needs assessments and communicate their prioritised needs to development partners
• reaffirmed the responsibility of developed country Parties to provide assistance, in accordance with their obligations under the Convention, through bilateral, regional, international or non-governmental channels
• urged international financial institutions, international organisations and other development partners to channel resources to developing country Parties and Parties with economies in transition, based on specific requests
• requested the Secretariat to provide assistance to developing country Parties and Parties with economies in transition in the conduct of needs assessments and in securing technical and financial assistance, and to launch an awareness-raising campaign among potential development partners to mobilise financial and technical support.

At COP-2, the Parties reaffirmed the importance of financial resources in achieving the objective of the Convention, recognising 'the need for taking immediate action to provide all necessary assistance to Parties to ensure sustained and predictable availability of funds'.^xix The COP-2 decision:

• requested the Secretariat to actively seek extra-budgetary contributions from Parties and other international donors, including intergovernmental organisations, specifically for the purpose of helping Parties in need to carry out needs assessments and develop project and program proposals for financial assistance from all available funding sources
• invited the Director-General of the WHO to support the Secretariat in this work and urged donor Parties to provide voluntary extra-budgetary contributions specifically for the purpose of this work
• requested the Secretariat to prepare and present, at each session of the COP, an implementation report on activities undertaken to implement the COP's decisions on financial resources and mechanisms of assistance.

COP-3 and COP-4 continued the mandate to the Convention Secretariat to work on the mobilisation of resources for implementation and to support developing country Parties and Parties with economies in transition in accessing sources of assistance.^xx COP-4 recognised, in particular, the need to further integrate FCTC implementation within the broader development agenda, requesting the Secretariat to actively engage in and contribute to work in other fora, cooperating with relevant United Nations agencies, funds and programs and other development partners. Taking note of the indication in Parties' periodic reports 'that lack of resources is one of the most important obstacles to implementation of the Convention', COP-4 also requested a review, with broad participation, of progress in the mobilisation of resources and the performance of the mechanisms of assistance. A report and recommendations based on this review are expected to be presented to COP-5.

18.7.5 Overseeing reporting and exchange of information

In accordance with Article 21 (Reporting and exchange of information) and Article 23, the COP oversees Parties' periodic reporting on their implementation of the Convention. Periodic reporting is critical to monitoring FCTC implementation and to maximising the effectiveness of the Convention in practice. As recognised by COP-1, Parties' periodic reports form the basis for the COP's function of regularly reviewing implementation of the Convention and taking the decisions necessary to promote effective implementation, as well as enabling Parties to understand and learn from each other's experience.^xxi COP-4 recognised the need for further attention to the role of reporting, requesting that COP-5 be presented with recommendations to better facilitate regular review of progress in implementation.^xxii

Article 21 provides that the COP shall determine the frequency and format of Parties' periodic reports, with each Party to make its initial report within two years of the entry into force of the FCTC for that Party. COP-1 decided that Parties' second and third reports would be required to be submitted within five and eight years of entry into force for each Party. COP-4 decided to replace this reporting cycle linked to the date of entry into force with a new, standardised cycle. From 2012, all Parties will submit implementation reports at regular two-year intervals in advance of biennial COP sessions.

The format for Parties' initial reports was provisionally adopted by COP-1, with the third session of the COP (COP-3) adopting revisions, as well as a more detailed questionnaire format for Parties' second reports.^xxiii COP-4 adopted the second questionnaire, with amendments, as the single reporting instrument for Parties' regular biennial reports.

COP-4's decision on updating and harmonising the reporting arrangements invited WHO to use the data received through Parties' implementation reports as a principal source of information for relevant surveillance and monitoring activities, avoiding the use of a parallel international system for regular collection of data concerning tobacco control. It also requested the preparation of a report containing recommendations for taking into account in the reporting instrument the key measures contained in the guidelines for implementation of the Convention, and for the standardisation of definitions and indicators deriving from specific articles of the Convention and the guidelines, as well as the promotion of their use by the Parties in their national data collection initiatives. This report is expected to be presented for consideration by COP-5.

18.7.6 Facilitating international cooperation

Parties to the FCTC accept a wide range of obligations in respect of international cooperation for effective tobacco control. Some important cooperation takes place through sessions of the COP, as well as smaller intersessional meetings such as guideline working group meetings and implementation workshops. Other aspects of cooperation are focused regionally or bilaterally. The COP, acknowledging the potential of technological, scientific and economic cooperation among developing countries—particularly in view of the fact that the tobacco epidemic disproportionately affects populations in developing countries, and of its expected growth in developing countries in the future—has placed particular emphasis on South–South cooperation.^xxiv

In some areas, cooperation is facilitated by special arrangements or mechanisms established by the COP. For example, Parties share pictorial health warnings and messages through a central international database established pursuant to the COP decision adopting the guidelines for implementation of Article 11 (Packaging and labelling of tobacco products).^xxv A database or databases are expected to be developed for the sharing of information in relation to other articles on which guidelines have been adopted, as requested in the decisions adopting the guidelines for Articles 9 and 10 (Regulation of the contents of tobacco products and regulation of tobacco product disclosures), Article 12 (Education, communication, training and public awareness), and Article 14 (Tobacco dependence and cessation). Another means used by the COP to facilitate international cooperation is the establishment of dedicated groups, such as the standing expert group on cross-border advertising, promotion and sponsorship established by COP-4.

18.7.7 The FCTC and trade agreements

In its Preamble, the FCTC states the determination of its Parties 'to give priority to their right to protect public health'. Under Article 2.2, the Parties agree that they may enter into other bilateral or multilateral agreements on issues relevant or additional to the Convention, provided that such agreements are compatible with their obligations under the Convention. In the 'Punta del Este Declaration' adopted at COP-4, the Parties reaffirmed their 'firm commitment to prioritize the implementation of health measures designed to control tobacco consumption in their respective jurisdictions', declaring their concern regarding actions taken by the tobacco industry that seek to subvert and undermine government policies on tobacco control.^xxvi

The 'Punta del Este Declaration' recalls relevant exceptions provided to the obligations of Parties to the World Trade Organization (WTO) agreements, and recognises that 'measures to protect public health, including measures implementing the WHO FCTC and its guidelines fall within the power of sovereign States to regulate in the public interest'. Mindful that closer cooperation with the WTO would support Parties to the FCTC in implementing the Convention, COP-4 also adopted a decision requesting the Convention Secretariat to cooperate with the WTO with the aim of information sharing on trade-related tobacco control issues.^xxvii The decision also requested the Secretariat to monitor trade disputes regarding FCTC-related tobacco control measures and other trade-related issues of relevance to FCTC implementation, facilitate information sharing between Parties on trade-related issues, and communicate regularly with relevant WHO offices on tobacco control issues raised at WTO committees. A report exploring additional options for cooperation with the WTO on trade-related tobacco control issues as a means of strengthening implementation of the Convention is expected to be presented for consideration by COP-5.