This section examines the impact of the WHO FCTC, focusing on the findings of its official impact assessment, and the influence of the treaty on human rights and international trade and investment law.
19.9.1 Impact of the WHO FCTC
At its sixth session in Moscow, Russia in 2014, the COP adopted the decision to examine the impact of the WHO FCTC ten years after its entry into force.1 The COP established an Expert Group to assess and examine the impact of the WHO FCTC on implementation of tobacco control measures and on the effectiveness of its implementation in order to assess the impact of the Convention as a tool for reducing tobacco consumption and prevalence after its first 10 years of operation.
The Expert Group’s impact assessment report presented at the seventh session of the COP in 2016,2 relied upon global evidence of scientific studies by the International Tobacco Control Project, commissioned reports, government documents and missions to 12 WHO FCTC Parties selected across each of the World Bank-classified income groups and the WHO regions.
The report of the Expert Group found that there had been ‘significant gains’ (para 9)2 in tobacco control since the entry into force of the WHO FCTC, with the WHO FCTC:
- providing an impetus and plan of action for the implementation of effective tobacco control policies;
- contributing to smoking prevalence reduction in countries where the treaty has been implemented at high levels and consequently also reduced mortality and morbidity;
- helping to galvanise multisectoral engagement outside of the health sector;
- serving as an important support and reference in the defence of legal challenges brought by the tobacco industry;
- promoting government, NGO and civil society collaboration;
- increasing awareness of tobacco industry interference; and
- generating activity at UN, global, regional and national levels. (para 25)2
Despite these gains, implementation of some WHO FCTC measures has been uneven across countries. The impact assessment identified that progress has been slower on contents regulation, environmental protection, liability, alternative livelihoods and international cooperation.2 The assessment also identified several ongoing challenges to WHO FCTC implementation, with tobacco industry interference being chief among these. Bringing litigation to oppose and delay tobacco control measures was identified as a tactic used by the tobacco industry against WHO FCTC implementation,2 including under international trade and investment law (discussed below).
19.9.2 WHO FCTC and human rights
The WHO FCTC is closely linked to and mutually reinforcing with human rights law. This connection has long been recognised by the tobacco control and human rights communities.3 The WHO FCTC highlights the key role tobacco control plays in attaining the right to health. The preamble references the right to health in the International Covenant on Economic, Social and Cultural Rights,4 the WHO Constitution, and the Convention on the Rights of the Child.5 The WHO FCTC also references relevant obligations contained in the Convention on the Elimination of All Forms of Discrimination Against Women.6 Beyond the right to health, many of the articles of the WHO FCTC contribute to other human rights, such as the right to information. Some national courts have also considered protection from the harms of tobacco use and exposure to tobacco smoke to be a component of the right to life.7-9
The relationship between the WHO FCTC and achieving human rights obligations has been recognised in global forums since its adoption. The Conference of the Parties (COP) (see Section 19.2.2 Conference of the Parties) has adopted several decisions and declarations on the relationship between the WHO FCTC and human rights. The Seoul Declaration adopted at COP5 recognises that tobacco control contributes to and supports the ‘fundamental right of every human being to the enjoyment of the highest attainable standard of health’.10 The Moscow Declaration adopted at COP6 and Delhi Declarations at COP7 each reaffirm that ‘the implementation of the WHO FCTC, its guidelines and protocols facilitate the enjoyment of the right to the highest attainable standard of health’, protected under international and national human rights law.11,12 A decision was also adopted at COP7 encouraging Parties to the WHO FCTC to link the ‘human rights framework and development to tackling the global tobacco epidemic’.13 In February 2024, COP10 adopted a further decision recognising the link between human rights and tobacco control. The decision ‘encourages Parties to consider including WHO FCTC principles and implementation efforts when engaging with the United Nations human rights mechanisms’ and requests the Convention Secretariat to collaborate with UN human rights agencies to raise awareness of the importance of WHO FCTC implementation in the realisation of human rights.14 Human rights mechanisms and instruments have also used urged states to ratify the WHO FCTC.
At the national level, several courts have explicitly recognised the WHO FCTC as a human rights treaty, affirming that it elaborates on the meaning of the rights to life and/or health, or that states have duties to implement it for the purposes of protecting those rights.15,16 The tobacco industry also routinely relies on human rights provisions contained in domestic constitutions to challenge tobacco control measures. Domestic constitutions differ significantly, however, the tobacco industry has relied on a variety of human rights provisions contained within domestic constitutions including protections for property, commercial speech or the freedom to run a business. The tobacco industry relied on provisions requiring the acquisition of property on just terms in the Australian Constitution to challenge Australia’s plain packaging laws. On 15 August 2012, the Australian High Court held that the Act did not constitute an ‘acquisition of property’, and therefore the provision of compensation on just terms was not required.17 For more information on domestic legal challenges, please see: https://extranet.who.int/fctcapps/fctcapps/fctc/kh/legalchallenges
The tobacco industry also co-opts human rights language to portray themselves as good corporate citizens. For example, Philip Morris International engaged the Danish Institute of Human Rights to carry out a human rights assessment and help it develop a human rights implementation plan. In May 2017, the Danish Institute terminated this collaboration, stating:18
‘Tobacco is deeply harmful to human health, and there can be no doubt that the production and marketing of tobacco is irreconcilable with the human right to health. For the tobacco industry, the UNGP therefore require the cessation of the production and marketing of tobacco.’
19.9.3 WHO FCTC and international trade and investment law
The tobacco industry routinely claims that tobacco control measures breach the provisions of international trade agreements. The World Trade Organization is the central multilateral body dealing with the rules of international trade. Over the last few years, tobacco control measures have been the subject of World Trade Organization (WTO) dispute proceedings with claims invoking WTO’s Technical Barriers to Trade (‘TBT’) Agreement, the General Agreement on Tariffs and Trade (‘GATT’) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (‘TRIPS’). These include a WTO challenge to Australia’s tobacco plain packaging laws brought by Cuba, the Dominican Republic, Honduras, and Indonesia. For a discussion of that challenge, please see Section 16.5.2 ‘Use of international trade and investment agreements to challenge national tobacco control measures’ and Section 19.11.2 ‘Role of the WHO FCTC in defending the tobacco plain packaging measure’.
Claims have also been brought under international investment law agreements against countries seeking to implement tobacco control measures, including a challenge to Australia’s tobacco plain packaging measures and Uruguay’s tobacco packaging laws (graphic health warnings covering 80% of the front and back of packaging and a single presentation requirement for tobacco products). For a discussion of those challenges, please see Section 16.5.2 ‘Use of international trade and investment agreements to challenge national tobacco control measures’.
International trade and investment agreements provide regulatory space for bona-fide, non-discriminatory public health measures, including tobacco control measures outlined in the WHO FCTC, as recognised in case law interpreting the agreements19-25 and confirmed in a range of international instruments. The right of governments to regulate in the interests of public health within the context of international trade and investment agreements finds expression in the WHO FCTC and decisions of the COP. In its preamble, the WHO FCTC states the determination of its Parties ‘to give priority to their right to protect public health’. Under Article 2.2 of the WHO FCTC, 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 COP4, 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.26 The Punta del Este Declaration recalls relevant exceptions provided to the obligations of Parties to the 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’.
At its seventh session, in the context of trade and investment issues pertaining to implementation of the WHO FCTC, the COP noted recent tribunal decisions affirming the sovereign right of states to adopt public health measures on tobacco control; recognised that measures to protect public health, including those implementing the WHO FCTC and its guidelines fell within the sovereign powers of the state; and considered the importance of safeguarding regulatory space for public health objectives when entering into trade and investment agreements. The COP called for coordination and cooperation between health and trade/investment departments, including in the context of trade and investment agreement negotiations, and requested the Convention Secretariat, in cooperation with WHO and the relevant Knowledge Hubs, to collect, document and inform Parties on practices to promote and safeguard public health measures under trade and investment agreements and on recent relevant developments and decisions of international fora and tribunals regarding measures implemented by Parties in compliance with the WHO FCTC and its guidelines.27
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References
1. Conference of the Parties to the WHO Framework Convention on Tobacco Control. Impact Assessment of the WHO FCTC: Decision of the Sixth Session of the Conference of the Parties to the WHO Framework Convention on Tobacco Control, FCTC/COP6(13). Moscow, Russia, 13–18 October 2014 18 October 2014. Available from: http://apps.who.int/gb/fctc/PDF/cop6/FCTC_COP6(13)-en.pdf.
2. Conference of the Parties to the WHO Framework Convention on Tobacco Control. Impact Assessment of the WHO FCTC: Report by the Expert Group, FCTC/COP/7/6. Delhi, India, 7−12 November 2016 27 July 2016. Available from: https://fctc.who.int/publications/m/item/fctc-cop-7-6-impact-assessment-of-the-who-fctc.
3. Zhou S and Liberman J. The Global Tobacco Epidemic and the WHO Framework Convention on Tobacco Control—The Contributions of the WHO's First Convention to Global Health Law and Governance, in Research Handbook on Global Health Law. Burci G and Toebes B, Editors. Edward Elgar Publishing; 2018.
4. International Covenant on Economic, Social and Cultural Rights, Adopted 16 December 1993, 993 UNTS 3 (entered into force 3 January 1976).
5. Convention on the Rights of the Child, Adopted 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
6. Convention on the Elimination of All Forms of Discrimination against Women, Adopted 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981).
7. Murli S Deora v. Union of India and Others (2001) 8 SCC 765; AIR 2002 SC 40 (Supreme Court of India).
8. Nurul Islam v. Government of Bangladesh (2000) WP 1825/1999 (High Court of Bangladesh).
9. Ramakrishnan v. State of Kerala (1999) AIR 1999 Kerala 385 (High Court of Kerala).
10. Conference of the Parties to the WHO Framework Convention on Tobacco Control. Decision FCTC/COP5(5)—Seoul Declaration. 17 November 2012. Available from: http://apps.who.int/gb/fctc/PDF/cop5/FCTC_COP5(5)-en.pdf.
11. Conference of the Parties to the WHO Framework Convention on Tobacco Control (Sixth Session). Moscow Declaration, FCTC/COP6(26), 18 October 2014. Available from: https://apps.who.int/gb/fctc/PDF/cop6/FCTC_COP6(26)-en.pdf.
12. Conference of the Parties to the WHO Framework Convention on Tobacco Control. Decision FCTC/COP7(29)—Delhi Declaration. 12 November 2016. Available from: https://fctc.who.int/publications/m/item/fctc-cop7(29)-delhi-declaration.
13. Conference of the Parties to the Framework Convention on Tobacco Control. Decision FCTC/COP7(26)—International Cooperation for Implementation of the WHO FCTC, Including on Human Rights 12 November 2016. Available from: https://fctc.who.int/publications/m/item/fctc-cop7(26)-international-cooperation-for-implementation-of-the-who-fctc-including-on-human-rights.
14. Conference of the Parties to the WHO Framework Convention on Tobacco Control. Contribution of the WHO FCTC to the Promotion and Fulfilment of Human Rights, FCTC/COP10(20). Panama City, Panama, 5–10 February 2024 10 February 2024. Available from: https://storage.googleapis.com/who-fctc-cop10-source/Decisions/fctc-cop-10-20-en.pdf.
15. Claim of unconstitutionality filed by over 5,000 citizens against Article 3 of Law No. 28705, Docket 00032-2010-PI/TC, 19 July 2011 (Constitutional Court of Peru).
16. Kerala Voluntary Health Services v. Union of India (2012) WP No. 38513 (High Court of Kerala).
17. JT International SA v Commonwealth of Australia, 2012, High Court of Australia. Available from: http://www.austlii.edu.au/au/cases/cth/HCA/2012/43.html.
18. The Danish Institute for Human Rights. Human Rights Assessment in Philip Morris International. 4 May 2017. Available from: https://www.humanrights.dk/news/human-rights-assessment-philip-morris-international.
19. Australia – Certain Measures ConcerningTrademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging, Report of the Panel (WT/DS 435/441/458/467), 28 June 2018, World Trade Organization.
20. Appellate Body Report, European Communities – Measures Affecting Asbestos and Asbestos-Containing Products (‘EC — Asbestos’), WT/DS135/AB/R (12 March 2001).
21. Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres (‘Brazil — Retreaded Tyres’), WT/DS332/AB/R (3 December 2007).
22. Panel Report, Thailand – Restrictions on Importation of and Internal Taxes on Cigarettes (‘Thailand-Cigarettes’), DS10/R – 37S/200 (adopted 7 November 1990).
23. Chemtura Corporation v. Canada (Award), 2010 (IIC 451).
24. Methanex Corporation v. United States of America (Award), 2005 (44 ILM 1345).
25. Philip Morris Brands Sàrl, Philip Morris Products S.A. and Abal Hermanos S.A. v. Oriental Republic of Uruguay (ICSID Case No ARB/10/7, Award, 8 July 2016).
26. Conference of the Parties to the WHO Framework Convention on Tobacco Control. Decision FCTC/COP4(5)—Punta Del Este Declaration. 6 December 2010. Available from: http://apps.who.int/gb/fctc/PDF/cop4/FCTC_COP4_DIV6-en.pdf.
27. Conference of the Parties to the WHO Framework Convention on Tobacco Control. Draft Decision, Trade and Investment Issues, Including Agreements, and Legal Challenges in Relation to the Implementation of the WHO FCTC, Second Report of Committee B, FCTC/COP/7/B/R/2 Delhi, India, 11 November 2016. Available from: https://fctc.who.int/publications/m/item/fctc-cop7(21)-trade-and-investment-issues-including-agreements-and-legal-challenges-in-relation-to-the-implementation-of-the-who-fctc.