ASIL Insights

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Introduction

In late May 2003, the World Health Assembly of the World Health Organization (WHO) will consider adoption of the Framework Convention for Tobacco Control (FCTC). The Intergovernmental Negotiating Body agreed on the proposed FCTC in early March 2003 and transmitted the treaty to the World Health Assembly. [1] The FCTC represents the first time in WHO's history that it has exercised its powers to adopt a treaty under Article 19 of its Constitution. [2] The FCTC is an important international legal development in the area of global public health.

Background

In 1995, the World Health Assembly directed the WHO Director-General "to report . . . on the feasibility of developing an international instrument such as guidelines, a declaration, or an international convention on tobacco control." [3] In 1996, the World Health Assembly authorized the WHO Director-General "to initiate the development of a framework convention in accordance with Article 19 of the WHO Constitution." [4]

The convention idea developed as part of WHO's strategy to deal with the growing global epidemic in tobacco-related diseases. As WHO Director-General Gro Brundtland argued in February 2003: "Together with HIV/AIDS, tobacco use is the fastest growing cause of death in the world. It is set to become the leading cause of premature death in the 2020s. Last year, tobacco killed 4.9 million people. The figure will be higher this year. Without further action, it is predicted that in the early 2020s the number of deaths from tobacco each year will have doubled. Seventy per cent of these deaths will occur in developing countries." [5]

WHO had long been involved in tobacco control efforts, such as encouraging the adoption of national laws and regulations for tobacco control; [6] but the framework convention proposal was the first time the WHO contemplated using international law and its international legal powers to deal with the global public health problems caused by tobacco consumption. [7]

The text of the FCTC was developed through a diplomatic process organized by WHO that included, first, a Working Group, which held sessions in October 1999 and March 2000, and then an Intergovernmental Negotiating Body (INB). [8] The INB held six negotiating sessions from October 2000 until February 2003 and adopted the FCTC at the end of its sixth session. Under Article 19 of the WHO Constitution, "[a] two-thirds vote of the Health Assembly shall be required for the adoption of such conventions or agreements."

Structure and Substance of the FCTC

The FCTC is a "framework convention" that establishes the framework for an ongoing diplomatic process to reduce the global public health threat posed by tobacco consumption. The intention is for the states parties to the FCTC to negotiate protocols on specific issues connected to global tobacco control, such as tobacco advertising, promotion, and sponsorship; tobacco-product regulation; illicit trade in tobacco; and liability. [9] As with the "framework-protocol" approach taken in certain international environmental treaties, the strategy in the FCTC contemplates progressive development of the international law on tobacco control. The basic structure and substance of the FCTC are presented briefly below.

Preamble

The preamble of the FCTC stresses, among other things, the public health problems tobacco consumption causes on a global scale, with specific emphasis on the dangers of tobacco consumption for people in developing countries, children, women, and indigenous peoples. The preamble also identifies the threats posed by tobacco advertising and promotion, illicit trade in tobacco products, and the efforts of the tobacco industry to undermine and subvert tobacco control efforts. It mentions the right to health in the International Covenant on Economic, Social, and Cultural Rights, the prohibition on discrimination against women in the field of healthcare in the Convention on the Elimination of All Forms of Discrimination Against Women, and the right to health of children in the Convention on the Rights of the Child. [10]

Part I: Introduction (Articles 1-2)

Part I of the FCTC defines important terms (Article 1) and explains the FCTC's relationship with other international agreements (Article 2). Article 2.1 makes clear that the FCTC does not prevent states parties from adopting tobacco control measures stricter than those that appear in the FCTC. The FCTC aims, thus, to create international harmonization of tobacco control measures that can be supplemented not only by later protocols to the Convention, but also by higher national standards.

Part II: Objective, Guiding Principles and General Obligations (Articles 3-5)

Article 3 states the FCTC's objective: "The objective of this Convention and its protocols is to protect present and future generations from the devastating health, social, environmental and economic consequences of tobacco consumption and exposure to tobacco smoke by providing a framework for tobacco control measures to be implemented by the Parties at the national, regional and international levels in order to reduce continually and substantially the prevalence of tobacco use and exposure to tobacco smoke."

The guiding principles for the FCTC and its development include informing people of the health dangers of tobacco, the need for strong political commitment on tobacco control, and the importance of international cooperation, multisectoral tobacco policies, liability as a tobacco control strategy, technical and financial assistance for economies adversely affected by tobacco control programs, and the participation of civil society in tobacco control efforts (Article 4).

The general obligations involve substantive and procedural duties. Substantively, states parties will be obliged to (1) develop comprehensive, multisectoral national tobacco control policies in accordance with the FCTC and any protocols to which it is a party; (2) adopt and implement effective national legislation on tobacco control (Article 5.1 and 5.2(b)); and (3) protect these tobacco control efforts from commercial and other vested interests of the tobacco industry (Article 5.3). Procedurally, the FCTC requires states parties to cooperate on developing tobacco control policies (Article 5.2(b)), on formulating proposed measures for implementing the FCTC and related protocols (Article 5.4), with intergovernmental organizations (Article 5.5), and on raising financial resources for effective implementation of the FCTC (Article 5.6).

Part III: Measures Relating to the Reduction of Demand for Tobacco (Articles 6-14)

Part III of the FCTC contains provisions that seek to reduce demand for tobacco products. In Article 6, the states parties recognize the importance of price and tax measures as means to reduce demand for tobacco but do not create any substantive obligations related to such means.  States parties will be required only to provide the Conference of the Parties periodically with information on tax rates on tobacco products and trends in tobacco consumption.

Articles 8 through 14 contain obligations related to the use of non-price measures to reduce tobacco demand, including protection against exposure to tobacco smoke (Article 8); testing, measuring, and regulating the contents and emissions of tobacco products (Article 9); regulation of disclosure of the contents and emissions of tobacco products (Article 10); packaging and labeling of tobacco products (Article 11); promotion  and strengthening of public awareness of tobacco control issues (Article 12); regulation of tobacco advertising, promotion, and sponsorship (Article 13); and development and dissemination of guidelines on cessation of tobacco use and treatment of tobacco dependence (Article 14).

The FCTC provision on banning tobacco advertising, promotion, and sponsorship proved controversial because some countries argued that their constitutional law gave some level of protection to "commercial speech." The FCTC contains, as a result, an exception to the duty to ban comprehensively all tobacco advertising for those states parties not able to institute such a ban. Instead, such states parties are obligated to restrict tobacco advertising, promotion, and sponsorship in accordance with their constitutional principles (see Articles 13.2 and 13.3).

Part IV: Measures Relating to the Reduction of the Supply of Tobacco (Articles 15-17)

The FCTC contains three articles that address the need to reduce the supply of tobacco. In this context, the FCTC targets the illicit trade in tobacco products (Article 15), sales to and by minors (Article 16), and the provision of support for economically viable alternatives to tobacco production (Article 17). The FCTC does not require states parties to prohibit tobacco sales to minors below a uniform age, providing only that each state party shall "prohibit the sales of tobacco products to persons under the age set by domestic law, national law, or eighteen" (Article 16.1).

Part V: Protection of the Environment (Article 18)

Article 18 provides that states parties, in carrying out their obligations, "agree to have due regard to the protection of the environment and the health of persons in relation to the environment in respect of tobacco cultivation and manufacture within their respective territories."

Part VI: Questions Related to Liability (Article 19) 

Among other things, Article 19 obliges the states parties to consider taking action to deal with criminal and civil liability for the purpose of tobacco control. States parties shall exchange information on these matters through the Conference of the Parties and afford one another assistance, as appropriate and mutually agreed, in legal proceedings on tobacco-related liability.

Part VII: Scientific and Technical Cooperation and Communication of Information (Articles 20-22)

Part VII contains provisions that obligate states parties to develop research and surveillance on tobacco control and to exchange such information (Article 20); submit periodic reports to the Conference of the Parties containing specified kinds of information (Article 21); and cooperate on strengthening capacity to fulfill the tobacco-control obligations of the FCTC, including promotion of the transfer of technical, scientific, and legal expertise and technology (Article 22).

Part VIII: Institutional Arrangements and Financial Resources (Articles 23-26)

The FCTC establishes a Conference of the Parties to oversee the implementation of the Convention, including the development of financial rules and a budget (Article 23). The WHO will perform secretariat functions until the Conference of the Parties designates and establishes a permanent Secretariat (Article 24).  The Conference of the Parties is empowered to cooperate with competent international and regional intergovernmental organizations in fulfilling its responsibilities (Article 25). States parties are required to provide financial resources in respect of their national activities under the Convention and to promote the utilization of various channels to provide funding for tobacco control efforts of developing-country states parties and states parties with economies in transition (Article 26).

Part IX: Settlement of Disputes (Article 27)

Disputes concerning the interpretation or application of the Convention shall be settled through peaceful negotiation or any other peaceful means, including good offices, mediation, or conciliation. States parties may opt into an ad hoc arbitration process to be established by the Conference of the Parties for dispute settlement.

Part X: Development of the Convention (Articles 28-29)

Part X addresses how the FCTC may be amended (Article 28) and the how procedural, scientific, technical, or administrative annexes may be added to the treaty (Article 29).

Part XI: Final Provisions (Articles 30-38)

Part XI deals with the standard final provisions often found in multilateral conventions. Reservations are not permitted (Article 30); and the procedure for proposing and adopting protocols is spelled out. Any state party may propose protocols, and the Conference of the Parties will consider such proposals (Article 33.1). The Conference of the Parties may adopt protocols, making every effort to reach consensus. If efforts to reach consensus fail, "the protocol shall as a last resort be adopted by a three-quarters majority vote of the Parties present and voting at the session" (Article 33.2). Only states parties to the FCTC may be parties to a protocol, and protocols shall be binding only on the parties to the protocol in question (Articles 33.4 and 33.5). The FCTC will enter into force on the ninetieth day following the date of deposit of the fortieth instrument of ratification (Article 36).

About the Author: David P. Fidler is Professor of Law and Ira C. Batman Faculty Fellow at Indiana University School of Law-Bloomington.

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