Dilemmas in the implementation of the World Health Organization Framework Convention on Tobacco Control (original) (raw)
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Dilemmas in the implementation of the WHO Framework Convention on Tobacco Control
Cadernos de Saúde Pública, 2020
The article analyzes some dilemmas related to the implementation of the Framework Convention on Tobacco Control, underscoring the States parties' difficulties in adopting public policies with proven cost-benefit and aimed at reducing tobacco's supply and demand. Specifically, the article examines the recommendation to adopt policies for plain cigarette packaging, as provided in the guidelines for implementation of the Convention's Articles 11 and 13. Based on case analysis, we identified political and legal factors that hinder the Convention's implementation, including the regulatory chill produced by legal claims filed by the tobacco industry, which uses investor-State arbitration clauses from bilateral investment agreements. The article concludes that despite the costs imposed on States and the delays in the adoption of such policies , in the medium and long term the rulings handed down by the arbitration courts and the World Trade Organization's Dispute Settlement Body can consolidate the understanding of the legality and effectiveness of policies that adopt the model.
Health Policy, 2011
Objective: Evaluate the impact of the FCTC negotiations on the diffusion of tobacco control policies. Methods: Analyzed country characteristics to determine their effects on the frequency, type and strength of tobacco control policies adopted among WHO Member States. Bivariate analyses were conducted for each characteristic to compare the frequency and strength of control policies adopted between pre-negotiation and negotiation periods. Multivariate regression analyses were performed to determine the predictive nature of these variables. Results: The frequency of policy adoption intensified during the years the FCTC negotiations were most intense. The strength of policies adopted also shifted significantly towards policies promoted by WHO. The average strength of policies adopted varied significantly according to country characteristics. All characteristics, with the exception of total and male smoking prevalence, were significantly associated with the number of policy types adopted.
2018
The Tobacco Convention was adopted by the World Health Organization (WHO) in 2003. Nikogosian and Kickbusch examine the five potential impacts of the Tobacco Convention and its Protocol on public health. These include the adoption of the Convention would seem to unlock the treaty-making powers of WHO; the impact of the Convention in the global health architecture has been phenomenal globally; the Convention has facilitated the adoption of further instruments to strengthen its implementation at the national level; the Convention has led to the adoption of appropriate legal framework to combat the use of tobacco at the national level and that the impact of the Convention would seem to go beyond public health but has also led to the adoption of the Protocol to Eliminate Illicit Trade in Tobacco. However, the article by Nikogosian and Kickbusch would seem to overlook some of the challenges that may militate against the effective implementation of international law, including the Tobacco Convention, at the national level. Citation: Durojaye E. The WHO Tobacco Convention: a new dawn in the implementation of international health instrument? Comment on " The legal strength of international health instruments-what it brings to global health governance?
Globalization and Health, 2017
Background: The World Health Organization (WHO) Framework Convention on Tobacco Control (FCTC) stands to significantly reduce tobacco-related mortality by accelerating the introduction of evidence-based tobacco control measures. However, the extent to which States Parties have implemented the Convention varies considerably. Article 5.3 of the FCTC, is intended to insulate policy-making from the tobacco industry's political influence, and aims to address barriers to strong implementation of the Convention associated with tobacco industry political activity. This paper quantitatively assesses implementation of Article 5.3's Guidelines for Implementation, evaluates the strength of Parties' efforts to implement specific recommendations, and explores how different approaches to implementation expose the policy process to continuing industry influence.
Since the adoption of the World Health Organization’s WHO Framework Convention on Tobacco Control, governments have been pursuing progressively stronger and more wide-reaching tobacco control measures. In response, tobacco companies are frequently using international trade and investment agreements as tools to challenge domestic tobacco control measures. Several significant new trade and investment agreements that some fear may provide new legal avenues to the tobacco industry to challenge health measures are currently under negotiation, including the Trans-Pacific Partnership (a twelve party agreement of Asia-Pacific regional countries) and the Transatlantic Trade and Investment Partnership (an agreement between the United States (US) and the European Union). This commentary examines different options for treaty provisions that the parties could employ in these agreements to minimise legal risks relating to tobacco control measures. It recommends that parties take a comprehensive approach, combining provisions that minimise the potential costs of litigation with provisions that increase the likelihood of a state successfully defending tobacco control measures in such litigation.
The tobacco corporation claims damages from Uruguay and Australia, for their adoption of regulatory measures alleged to limit the PM's trademark rights. The disputes have intriguing implications for international investment law because they question the boundary between legitimate regulation for the promotion of public health, on the one hand, and investment protection, on the other. In the present article, the focus will be placed on possible invocation of non-investment international law in investment arbitrations. In particular, the WTO law (TRIPS Agreement) and the Framework Convention on Tobacco Control ("FCTC") will be discussed. After a brief analysis of the states' contentious measures and the investor's claims, the methods for invoking noninvestment law in investment disputes will be elaborated upon. In conclusion, the optimal manner for tribunals to consider the relevant provisions of TRIPS and the FCTC while interpreting the applicable BITs will be proposed. The allegations of the WTO law violations will be argued not to have merit. Finally, the possible policy implications of the disputes will be considered as well as the recent rejection of investorstate dispute settlement mechanisms in some states such as Australia.
The title of this book, Weaponising Evidence, weaves together the two 'investigative lenses' 1 through which Margherita Melillo has chosen to approach the international law of tobacco control: lawfare and evidence. Lawfare is a portmanteau that 'capture[s] the idea of using law "as part of a hostile campaign against a country or group"', though the author uses the term in a neutral way to describe 'a battle between two factions (the tobacco control network and the tobacco industry)' in the field of international tobacco control. 2 Similarly, she uses evidence as 'a neutral term to refer to a broad array of different types of specialised knowledge on tobacco control, irrespective of whether they constitute science or not'. 3 Melillo explains that lawfare and evidence are entangled, the latter being 'a central strategy' 4 of the former. The strategic use of evidence seems particularly apposite in the context of the World Health Organization (WHO), on which this book focuses, considering the organization's 'medical-scientific institutional culture'. 5 In her study, Melillo examines 'the transformation of the domestic tobacco wars into an international warlike effort' and argues that 'since the 1990s, international law has been used as a double edged tool: to spur action at the domestic level and at the same time to deter domestic regulation'. 6 This tool has been used in the context of the negotiation of the Framework Convention on Tobacco Control (FCTC), which was adopted in 2003 under the auspices of the WHO, but also in the context of the FCTC's implementation (after 2003), as well as via international litigation. The book has five chapters (including the introduction and the conclusion). The introductory chapter sets the scene for the rest of the study. The second chapter, which is the longest of the book, pertains to the negotiation of the FCTC, while the third chapter deals with the FCTC's 'postconclusion phase', after 2003. 7 These two chapters shed light on 'the first two battles of the *I would like to thank the two anonymous peer reviewers for their constructive feedback and helpful suggestions. I have no conflict of interest to disclose.
THE ROLE OF INTERNATIONAL LAW WITHIN NATIONAL LEGISLATION ON TOBACCO CONTROL
The present article, taking into account advances in international rights and the need for domestic implementation of Framework Convention on Tobacco Control (FCTC) standards, has the objective of analyzing the competence to bring domestic and international regulations to fruition, with the purpose of creating coordinated public policies for tobacco control. So, it is possible to argue that the FCTC, by means of its guidelines, laid down at the Conferences of the Parties (COPs) and which are binding to all members states of the convention, paves the way for international regulation. Domestically, such regulation has to observe DOP guidelines, there being leeway for organizations like Brazil’s ANVISA to bring those guidelines into action, such as the one related to FTCT articles 9 and 10, which limit the use of flavour additives in tobacco products, as a way of implementing international standards within the country. There is also no conflict between free enterprise and tobacco control given that, as stated by the Constitutional Court of Colombia in a process involving the constitutionality of restrictions to tobacco advertising, this is a market that should not be stimulated, but rather merely tolerated.
Human Rights and Tobacco Control, M.E.C. Gispen & B.C.A. Toebes (eds.), 2020
This chapter critically analyses the role that is played by international economic law (IEL) dispute settlement bodies (DSBs) in the field of tobacco control. In particular, it looks at the recent case law of the World Trade Organization (WTO) and ad hoc investment tribunals that dealt with the national tobacco control measures. The chapter seeks to demonstrate that IEL DSBs recognize the importance of public health policies relating to tobacco control, and that through their recent decisions, they actually broadened, rather than undermined, the regulatory space available to States. If a specific measure is found illegal in the course of the proceedings, this is due to its discriminatory design and not because of any specific IEL hierarchy of values (e.g. trade and investment protection above public health).