Last updated: November 2023
Suggested citation: Kapa, W., Slattery, C., Zhou, S., George, A. & Liberman, J. 19.8 Enforcement of the WHO FCTC. In Greenhalgh, EM, Scollo, MM and Winstanley, MH [editors]. Tobacco in Australia: Facts and issues. Melbourne: Cancer Council Victoria; 2023. Available from: https://www.tobaccoinaustralia.org.au/chapter-19-ftct/19-8-enforcement-of-the-who-fctc
As is the case in many areas of international law, obligations that Parties have accepted under the WHO FCTC are difficult to formally enforce. There is no centralised 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 WHO FCTC believe a particular Party to be in breach of its obligations under 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.1 Article 27.1 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 27.2 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 November 2023, 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 adopted procedures for arbitration.2 In any event, formal dispute settlement provisions in international agreements are rarely used in practice, with countries usually disinclined to pursue contentious, adversarial, and potentially resource-intensive dispute settlement procedures. This is particularly the case in relation to those provisions of the Convention that do not have cross-border implications.
A significant means through which Parties may be encouraged to adhere to their obligations under the WHO FCTC 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 WHO FCTC undertaken by the Parties themselves, by the Convention Secretariat, and by both domestic and international non-governmental organisations. The most significant WHO FCTC implementation monitoring activity currently undertaken at the international level is official reporting undertaken pursuant to Article 21 of the Convention. Reporting is key to identifying and publicising both failures and successes in Parties’ implementation of the WHO FCTC, thereby influencing the way in which Parties approach their obligations.
In its most recent sessions, the Conference of the Parties to the WHO FCTC has considered the adoption of more systematic mechanisms to review the implementation of the WHO FCTC by the parties. At its sixth session, the COP established an Expert Group to review reporting arrangements. The Expert Group proposed the establishment of a standing ‘implementation review mechanism’ to monitor all Parties’ implementation of the WHO FCTC and make non-binding recommendations to Parties in order to facilitate and assist parties’ implementation activities.3 At the seventh session of the COP, the COP decided to establish a working group to build on the work of the Expert Group (among other matters), and in particular, to ‘make recommendations on an ongoing mechanism for the systematic review of Parties’ support and assistance needs’.4 At the eighth session of the COP, the COP adopted the Global Strategy to Accelerate Tobacco Control, which includes a strategic objective to ‘create a peer-led WHO FCTC Implementation Review Mechanism to facilitate addressing gaps and challenges of individual Parties, share lessons learnt and contribute to the implementation of this Strategy’ by 2020.5 The decision adopting the Strategy requests the Convention Secretariat to conduct a pilot for the Implementation Review Mechanism and to report to the ninth session of the COP with outcomes, a costed strategy, and terms of reference for further consideration of the COP.6 At the ninth session of the COP such items were reported based on a pilot of 12 volunteer Parties.7 However, due to the virtual format of COP due to COVID-19 pandemic restrictions, discussion of and decisions on those items were deferred to COP 10.8