Last updated: September 2021
Suggested citation: Slattery, C., Zhou, S., George, A. & Liberman, J. 19.9 Impact of the WHO FCTC and role in the context of global governance. In Greenhalgh, EM, Scollo, MM and Winstanley, MH [editors]. Tobacco in Australia: Facts and issues. Melbourne: Cancer Council Victoria; 2021. Available from: https://www.tobaccoinaustralia.org.au/chapter-19-ftct/19-9-impact-of-the-who-fctc-and-role-in-the-context-of-global-governance
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 (ITC) 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 92) 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 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 252)
19.9.1 WHO FCTC and the NCD Agenda
Tobacco consumption is a leading risk factor for noncommunicable diseases (NCDs) (also known as chronic diseases), which include cardiovascular diseases, cancers, chronic respiratory diseases, diabetes, and mental health conditions. The WHO FCTC is therefore closely integrated into the global NCD agenda. The WHO Global Action Plan on the Prevention and Control of Noncommunicable Diseases (NCDs) 2013-2020 (Global Action Plan on NCDs)3 includes a target of a 30% relative reduction in the prevalence of current tobacco use in persons aged 15 and over. Appendix 3 of the Global Action Plan on NCDs includes a list of ‘Best Buys’ and other recommended interventions for the prevention and control of NCDs.4 The five ‘Best Buys’ for tobacco control reflect provisions in the WHO FCTC. At the 72nd World Health Assembly in 2019, the Global Action Plan on NCDs was extended to 2030 to align with the 2030 Agenda for Sustainable Development.5
The critical role of the WHO FCTC has also been recognised in the outcome documents of three high-level meetings of the UN General Assembly on NCDs. The 2011 Political Declaration of the High-level Meeting of the General Assembly on the Prevention and Control of NCDs (paras 8 and 43(c)6) enshrines a commitment to accelerate implementation of the WHO FCTC by States Parties, encourages non-Parties to consider becoming a party to the treaty, and recognises the fundamental conflict of interest between the tobacco industry and public health. This commitment was reiterated in the Outcome Document of the 2014 High-Level Meeting of the United Nations General Assembly on the comprehensive review and assessment of the progress achieved in the prevention and control of NCDs,7 and in the 2018 Political Declaration of the Third UN High-Level Meeting on NCDs.8
19.9.2 WHO FCTC and the Sustainable Development Agenda
Implementation of the WHO FCTC has also been recognised as playing an integral role to the attainment of the 2030 Agenda for Sustainable Development. Entering into force on 1 January 2016, the 2030 Agenda for Sustainable Development — adopted by the United Nations General Assembly in September 2015 by Member States including Australia — consists of 17 Sustainable Development Goals (SDGs) and 169 related targets. Goal 3 is on ensuring healthy lives and promoting well-being for all at all ages and target 3a calls for strengthened implementation of the WHO FCTC in all countries as appropriate.9 Implementation of the WHO FCTC also contributes to the attainment of goals on gender equality (goal 5), decent work and economic growth (goal 8), reduced inequalities (goal 10) and many more. The Addis Ababa Action Agenda, the outcome document of the Third International Conference on Financing for Development to support implementation of the SDGs, expressly identifies strengthened implementation of the WHO FCTC by Parties to the Convention and the need to support mechanisms to raise awareness and mobilize resources.10 Australia’s first Voluntary National Review submitted on the 2030 Agenda for Sustainable Development highlighted Australia’s role as a global leader in tobacco control and comprehensive tobacco control measures in Australia which have seen the age-standardised daily smoking prevalence drop from 22.3 per cent in 2001 to 14.7 per cent in 2014-15.11
19.9.3 WHO FCTC and Trade and Investment Agreements
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 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’), including a WTO challenge to Australia’s tobacco plain packaging laws brought by Cuba, the Dominican Republic, Honduras, and Indonesia. On 28 June 2018, the panel hearing the WTO dispute dismissed all of the claims by the complainants, finding that tobacco plain packaging is not more trade-restrictive than necessary to protect public health and does not violate any relevant international obligations regarding intellectual property. The panel also concluded that tobacco plain packaging is ‘apt to, and does, contribute’ to its public health objectives.12 Honduras and the Dominican Republic appealed the decision to the WTO Appellate Body. However, on 9 June 2020, the WTO Appellate Body dismissed the appeal and upheld the panel’s findings concerning the contribution of plain packaging to public health, as well with respect to trade-restrictiveness and Australia’s intellectual property obligations in relation to its plain packaging measures.13 For more information on the appeal and the findings of the WTO Appellate Body, please see section 19.10.2 ‘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. On 17 December 2015, an arbitral tribunal hearing a challenge by Philip Morris Asia against Australia’s tobacco plain packaging laws under a 1993 Australia – Hong Kong Bilateral Investment Treaty (‘BIT’) issued a unanimous decision agreeing with Australia’s position that the tribunal had no jurisdiction to hear Philip Morris Asia’s claim. The tribunal found that a corporate restructure undertaken by Philip Morris after the Australian Government had announced its intention to introduce plain packaging was carried out for the principal, if not sole, purpose of gaining protection from the Australia – Hong Kong BIT. As the restructure occurred when there was a reasonable prospect that the dispute under the Australia – Hong Kong BIT would materialise, the initiation of the arbitration constituted an abuse of rights.14 Subsequently, on 8 July 2016, an arbitral tribunal dismissed an investment treaty challenge brought by Philip Morris Switzerland under a Switzerland — Uruguay BIT against 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).15 The tribunal held the measures under challenge did not constitute an expropriation of Philip Morris Switzerland’s investments, did not deny fair and equitable treatment, and were a valid exercise of Uruguay’s sovereign right to regulate for public health. For more information on the case, please see: http://www.mccabecentre.org/downloads/Knowledge_Hub/McCabe_Centre_paper_on_Uruguay_award.pdf
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 recognized in case law interpreting the agreements12, 15-20 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.21 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’.
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.22
19.9.4 WHO FCTC and Human Rights
The WHO FCTC is also closely linked to and mutually reinforcing with human rights law. 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, the WHO Constitution and the Convention on the Rights of the Child. The WHO FCTC also references relevant obligations contained in the Convention on the Elimination of All Forms of Discrimination Against Women. Beyond the right to health, many of the articles of the WHO FCTC contribute to other human rights, such as the right to information.
The relationship between the WHO FCTC and achieving human rights obligations has been recognised in global forums since the adoption of the FCTC. The Conference of the Parties (see 19.1.2 Conference of the Parties) has adopted several decisions on the relationship between the WHO FCTC and human rights. In November 2016, the Conference of the Parties adopted a decision reaffirming that implementation of the WHO FCTC facilitates the enjoyment of the right to health23 and a decision encouraging Parties to the WHO FCTC to link the ‘human rights framework and development to tackling the global tobacco epidemic’.24 Human right mechanisms and instruments have also used urged States to ratify the WHO FCTC.
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.25 For more information on domestic legal challenges, please see: https://untobaccocontrol.org/kh/legal-challenges/domestic-courts/
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. 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. Available from: http://www.who.int/fctc/cop/cop7/FCTC_COP_7_6_EN.pdf?ua=1.
3. World Health Organization. Global Action Plan for the Prevention and Control of Noncommunicable Diseases 2013-2020. Available from: https://www.who.int/publications/i/item/9789241506236.
4. World Health Organization. Best Buys and Other Recommended Interventions for the Prevention and Control of Noncommunicable Diseases. 2017. Available from: https://www.who.int/ncds/management/WHO_Appendix_BestBuys_LS.pdf.
5. World Health Assembly. Decision WHA72(11)—Follow-up to the Political Declaration of the Third High-level Meeting of the General Assembly on the Prevention and Control of Non-communicable Diseases. 28 May 2019. Available from: https://apps.who.int/gb/ebwha/pdf_files/WHA72/A72(11)-en.pdf.
6. Sixty-sixth session of the United Nations General Assembly. Political declaration of the high-level meeting of the General Assembly on the prevention and control of noncommunicable diseases, A/RES/66/2. New York. 19 September 2011. Available from: http://www.who.int/nmh/events/un_ncd_summit2011/political_declaration_en.pdf.
7. Sixty-eighth session of the United Nations General Assembly. Outcome document of the high-level meeting of the General Assembly on the comprehensive review and assessment of the progress achieved in the prevention and control of noncommunicable diseases. A/RES/68/300. New York. 10 July 2014 Available from: http://www.who.int/nmh/events/2014/a-res-68-300.pdf.
8. Seventy-third session of the United Nations General Assembly. Political declaration of the third high-level meeting of the General Assembly on the prevention and control of non-communicable diseases - Time to deliver: Accelerating our response to address non-communicable diseases for the health and well-being of present and future generations. A/RES/73/2. New York 10 October 2018. Available from: http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/73/2.
9. Seventieth session of the United Nations General Assembly. Transforming our world. The 2030 Agenda for Sustainable Development.ARES/70/1. New York. 2015. Available from: https://sustainabledevelopment.un.org/post2015/transformingourworld/publication.
10. United Nations. Addis Ababa Action Agenda of the Third International Conference on Financing for Development. Addis Ababa, Ethiopia. Available from: https://sustainabledevelopment.un.org/content/documents/2051AAAA_Outcome.pdf
11. Australian Government. Report on the Implementation of the Sustainable Development Goals. 2018. Available from: https://sustainabledevelopment.un.org/content/documents/20470VNR_final_approved_version.pdf.
12. Australia – Certain measures concerning trademarks, 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.
13. Australia – Certain measures concerning trademarks, geographical indications and other plain packaging requirements applicable to tobacco products and packaging, Report of the Appellate Body (WT/DS 435/441), 9 June 2020, World Trade Organization.
14. Philip Morris Asia Limited v Commonwealth of Australia, Award on Jurisdiction and Admissibility (PCA Case No 2012-12, 17 December 2015).
15. 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).
16. Appellate Body Report, European Communities – Measures affecting asbestos and asbestos-containing products (‘ EC — Asbestos’), WT/DS135/AB/R (12 March 2001).
17. Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres (‘ Brazil — Retreaded Tyres’), WT/DS332/AB/R (3 December 2007).
18. Panel Report, Thailand – Restrictions on importation of and internal taxes on cigarettes (‘ Thailand-Cigarettes’), DS10/R – 37S/200 (adopted 7 November 1990).
19. C hemtura Corporation v. Canada (Award), 2010 (IIC 451).
20. Methanex Corporation v. United States of America (Award), 2005 (44 ILM 1345).
21. 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.
22. 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: http://www.who.int/fctc/cop/cop7/FCTC_COP_COMMITTEE_B_2.pdf?ua=1.
23. Conference of the Parties to the Framework Convention on Tobacco Control. Decision FCTC/COP7(29)—Delhi Declaration. 12 November 2016. Available from: http://www.who.int/entity/fctc/cop/cop7/FCTC_COP7_29_EN.pdf?ua=1.
24. 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://www.who.int/fctc/cop/cop7/FCTC_COP7_26_EN.pdf?ua=1https://www.who.int/fctc/cop/cop7/FCTC_COP7_26_EN.pdf?ua=1
25. 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.