18.8 Enforcement of the FCTC

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As is the case in many areas of international law, obligations that Parties have accepted under the World Health Organization (WHO) Framework Convention on Tobacco Control (FCTC)ⁱ are difficult to enforce in any formal way. There is no body with the power to hold Parties to the obligations they have accepted under the Convention, or to apply sanctions where these obligations are not met. However, most countries take their international legal obligations seriously—particularly those obligations that they have voluntarily accepted by ratifying a treaty. International legal obligations have strong normative effects, creating expectations about the way countries will behave. These expectations are held by countries in relation to each other, by civil society in relation to countries, and they tend to become ingrained within the work of governmental and intergovernmental organisations and institutions.

Where a Party or Parties to the FCTC believe a particular Party to be in breach of its obligations under the Convention, or to be incorrect in its interpretation of a provision of the Convention, the Party or Parties may seek to hold that Party to its obligations, either informally through the application of diplomatic pressure, or formally through the dispute settlement provisions in Article 27 of the Convention. Article 27 provides that Parties should seek settlement of a dispute through diplomatic channels, such as negotiation, good offices, mediation or conciliation. Should diplomatic channels fail, Article 27 provides that Parties which have declared their acceptance of compulsory ad hoc arbitration under the Convention may submit the dispute to settlement by an arbitral body under procedures to be adopted by the COP. As of January 2011, only two Parties to the Convention—Azerbaijan and Belgium—had declared their acceptance of compulsory ad hoc arbitration in accordance with procedures to be adopted by the COP, and the COP had not yet begun to consider possible procedures for arbitration. In any event, formal dispute settlement provisions are rarely used in practice, with countries usually disinclined to formally 'interfere' in the domestic affairs of other sovereign states. This is particularly the case in relation to those provisions of the Convention that cannot be said to have cross-border implications.

A significant means through which Parties may be encouraged to adhere to their obligations under the FCTC—and dissuaded from breaching these obligations—is the effective monitoring of Parties' implementation of the Convention and the dissemination of information gained through the monitoring process. Implementation monitoring occurs through a range of activities associated with the FCTC undertaken by the Parties themselves, by the Convention Secretariat, and by both domestic and international non-governmental organisations. The most significant FCTC implementation monitoring activity currently undertaken at the international level is reporting: both official reporting pursuant to Article 21 of the Convention (see 'Reporting and exchange of information' in Section 19.6.3.2), and 'shadow reporting' undertaken by civil society.ⁱⁱ Reporting is key to identifying and publicising both failures and successes in Parties' implementation of the FCTC, thereby influencing the way in which Parties approach their obligations.