In a guest blog for Edward Elgar, Jonathan Liberman explains that the WHO Framework Convention on Tobacco Control (WHO FCTC) carries great legal and political power for global health and development in the 21st century. Jonathan’s blog draws on his chapter The Power of the WHO FCTC: Understanding its Legal Status and Weight in the new book The Global Tobacco Epidemic and the Law, edited by Melbourne Law School Professors Andrew Mitchell and Tania Voon.
On 27 February 2015, it will be ten years since the WHO Framework Convention on Tobacco Control (WHO FCTC)
entered into force. At its upcoming sixth session, to be held in October, the treaty’s governing body, its Conference of the Parties (COP), will consider how the treaty’s impact might be assessed.
There is wide interest in the WHO FCTC’s impact for a number of reasons.
- The scale of the harm caused by tobacco. The World Health Organization (WHO) estimates that tobacco kills nearly 6 million people each year. Unchecked, this is projected to rise to more than 8 million deaths a year by 2030, more than 80% of which will be in low- and middle-income countries. Having been responsible for 100 million deaths in the 20th century, tobacco could cause one billion deaths in the 21st century.
- The WHO FCTC as a model for other global health treaties. A number of proposals have been advanced for the negotiation of new WHO treaties modelled in one way or another on the WHO FCTC. Treaties have been proposed for alcohol, healthy diets, antimicrobial resistance, substandard medicines, and drug research and development, as well as for an all-encompassing Framework Convention on Global Health. The impacts of the WHO FCTC, and perhaps more importantly the precise mechanisms through which these impacts have materialised, will likely inform the framing and formulation of these and other future proposals, and the context in which these proposals are advanced (or stalled).
- The global wave of legal challenges to tobacco control measures. There is currently a global wave of litigation in which WHO FCTC Parties’ tobacco control measures are being challenged, both in domestic courts and in international fora. In domestic litigation, the WHO FCTC is demonstrating its weight – as a source of both power and obligation, and as evidence of the effectiveness of measures under challenge. At the international level, high-profile cases against Australia’s plain packaging laws in the WTO and against Australia’s and Uruguay’s packaging laws under bilateral investment treaties are posing fundamental questions about the coherence of international legal regimes in general, and the intersection of health, human rights, trade and investment laws and values in particular.
With so much at stake for the parties, instruments and institutions involved, the WHO FCTC’s legal status, weight and utility matter deeply. But nearly ten years after its entry into force, in my view, the power of the WHO FCTC is inadequately understood, and routinely understated. This diminution of the treaty comes from several quarters.
Not surprisingly, in its determination to continue to maximise shareholder value in the ongoing sale of its inherently lethal and addictive products, the global tobacco industry does its best to portray the Convention as worthless. So, it claims, the Convention doesn’t actually require anyone to do anything significant. And then when something significant appears likely to be done, or is done, and the industry threatens or brings a legal challenge, the industry claims that the treaty provides no legal support either because the whole instrument is meaningless, or because the particular measures at issue are not supported by it.
Situated within broader debates
On a different front, the treaty often finds itself caught in the crossfire of broader debates about the relationship between trade and investment agreements and public health. Advocates campaigning against such agreements on the basis of legitimate concerns about ways in which they might impact on governments’ policy space, or at least create ‘regulatory chill’, often appear inclined to talk the treaty down rather than communicate its weight
. In an age of soundbites, perhaps the overall message about the risks to public health might be diluted, or at least confused, if the power of the WHO FCTC were admitted.
In addition, many academics encounter the WHO FCTC only in passing, either in the context of a broader interest in global health governance, or as it intersects with other legal regimes, such as those dealing with intellectual property, trade or investment. Many do not give the treaty the time and respect it deserves – the careful reading of the entirety of its contents, and engagement with the work of its COP necessary for a thorough understanding of what it means and how it operates in practice.
Understanding the Convention, Harnessing its Potential
In my view, nearly ten years since entry into force, the WHO FCTC suffers from the historical overhang of its mid-1990s ‘framework convention / protocol’ conception. The original idea
, born in the perceived politics of the day, was that a general system of governance be established, onto which detailed content would later be added in the form of protocols. But the instrument became something quite different in its negotiation. Even a cursory glance reveals a number of detailed provisions and strong obligations. One protocol to the treaty – on illicit trade
– has been negotiated and adopted, though it has not yet entered into force, but there is no serious proposal to negotiate another protocol. Rather, the COP is attending to the business of implementation: the ongoing development of normative instruments, mobilisation of resources, facilitation of international cooperation, and strengthening of relationships with key organisations. The treaty is not waiting for additional protocols to make it real.
Like other treaties, the WHO FCTC cannot be understood by reading individual provisions in isolation, or by searching for individual words of interest. The rules of treaty interpretation under customary international law, which are generally accepted as being largely codified in the Vienna Convention on the Law of Treaties
, require that the Convention’s individual provisions be read within the larger whole of which they form part, including the treaty’s preamble, objective, guiding principles, and general obligations, as well as ‘subsequent agreements between the parties regarding the interpretation of the treaty or the application of its provisions’, such as the implementation guidelines adopted by the COP
Further, the significance of the WHO FCTC’s preoccupation with the adoption and implementation of ‘effective’ measures should be fully grasped, along with the Parties’ related ‘determination’ to ‘promote measures of tobacco control based on current and reliable scientific, technical and economic considerations’. The precise practical content of Parties’ obligations, and the related support provided by the treaty, will continue to evolve as experience and evidence continue to accumulate.
The WHO FCTC’s approaching ten-year anniversary provides an occasion to examine what the treaty has already achieved. It also provides an opportunity to fully harness the Convention’s legal and political potential to greatly improve global health and development in the 21st century.