THE IMPLEMENTATION OF FCTC: SOME
REFLECTIONS ON THE CURRENT
TWO-PILLAR AND ONE-ROOF FRAMEWORK
Chang-fa Lo
∗A
BSTRACTAfter summarizing the hazardous effect of tobacco use and pointing out the need for tobacco control, this paper presents in a nutshell the 10-year difficult negotiations leading up to the adoption of the FCTC. This paper then examines the overall governance structure of the FCTC, summarizing the structure as two pillars and one roof – the first pillar being national implementation of the minimum requirements in the FCTC, the second pillar being international cooperation, and the roof being the monitoring mechanism. The positive points about the FCTC are pointed out, regarding the changes it has made and its framework approach. What follows, then, are some suggestions for refinement or remodeling with respect to the two pillars and the roof; in particular, this paper points out the need to open up a way for political entities not widely recognized as States to join in the FCTC regime. Then some concluding remarks are offered.
K
EYWORDS:
framework approach; Framework Convention on Tobacco∗
Professor of the College of Law, National Taiwan University and a panelist of a dispute settlement panel between EC and Brazil, WTO. This article was originally written for the International Conference on Global Governance & Partnership under Framework Convention on Tobacco Control (FCTC), which was held by College of Law and College of Public Health, National Taiwan University and Department of Health, ROC on November 28, 2005.
Control; FCTC; global governance; Taiwan; tobacco control; World Health Assembly; WHA; World Health Organization; WHO
I. INTRODUCTION
Tobacco has been with humans for thousands of years. In the year 1000 B.C., people already started using the leaves of tobacco plant for smoking and chewing.1 Throughout the history of human consumption of tobacco, there had been different treatments toward the use of tobacco. For instance, during 1596-1645, the first Romanov Csar Michael Feodorovich declared:
[T]he use of tobacco a deadly sin in Russia and forbade possession for any purpose. Tobacco court [was] established to try breaches of the law. Usual punishments were slitting of the lips or a terrible and sometimes fatal flogging. In Turkey, Persia and India, the death penalty was prescribed as a cure for the habit.2
However, in most other times, tobacco was always a lawful product being used in almost all societies. Sometimes, it was even used under direct or indirect encouragement of the governments.3
The use of tobacco was not stopped or discontinued even tobacco is proven to be extremely hazardous to human health. After the finding of linkage between smoking and lung cancer by Richard Doll and A. Bradford Hill in 1950,4 it has been 55 years and now there are more and more evidence showing the unequivocal connection between smoking and many other diseases. It has been medically proven that smoking causes lung cancer, head and neck cancer, urinary bladder & kidneys cancer, breast cancer, pancreas cancer, colon cancer, heart disease, chronic obstructive pulmonary disease, peripheral vascular disease, osteoporosis, hypothyroidism, diabetes, etc.5 Even Article 8 of the FCTC has also pointed out that “Parties recognize that scientific evidence has unequivocally established that exposure to tobacco smoke causes death, disease and
1 Mayan civilization of Central America is considered to be the first user of tobacco. The History of
Smoking, available at http://www.who.int/tobacco/framework/faq/en/index.html
2 Id.
3 For instance, in 1914, when World War I broke out, cigarette rations were introduced and this
being part of the reasons, smoking hugely popular with soldiers in battlefields of northern Europe and cigarettes became known as ‘soldier’s smoke’. Id.
4 Id.
disability.”
Tobacco is hazardous to human health not only because of its direct effect of causing diseases, but also because of the addictive nature of nicotine contained in tobacco having long time influence to smokers. As stated in a website about the addictiveness:
Nicotine is a powerfully addictive drug. The smoker is in a constant battle to maintain a narrow range of nicotine in her blood stream (serum nicotine level). Every time the smoker’s serum nicotine level falls below the minimum limit, she experiences drug withdrawal. She becomes tense, irritable, anxious and, in some cases, even shows physical symptoms. She does not enjoy feeling these withdrawals. The only thing that will alleviate these acute symptoms will be a cigarette. The nicotine loss is then replenished and, hence, the smoker feels better.6
There might be counter-arguments about the positive aspects of having tobacco being consumed by people. The most salient one should be the effect of creating economic benefits. Tobacco industry uses economic terms to argue that smoking benefits the world’s economy. However, there are costs arising from tobacco production and consumption, such as social, welfare, health care spending, loss of land for food production, etc.,7 not to mention the direct health impacts caused by smoking. About economic implication, an IMF study also suggested that tobacco control will not harm the economy, because “[t]obacco production is a small part of most economies and for all but a very few agrarian countries heavily dependent on tobacco farming, there would be no net loss of jobs, and there might even be job gains if global tobacco consumption fell.”8
Although the devastating and health-hazardous effect of tobacco to human health has long been the fact, although there are 1.3 billion smokers and 47.5% of men and 10.3% of women being smokers, and although tobacco has caused around 13,500 deaths per day and an estimated 4.9 million people die annually as a result of tobacco-related diseases, the ironical thing is that tobacco is still a “lawful product”. The WHO describes tobacco as “the only legally available consumer product that kills through normal use.”9
A very positive and important development in the history of human use
6 Joel Spitzer, I Smoke Because I Like Smoking!, available at http://whyquit.com/joel /Joel _01_02
_I_Like.html.
7 Christine P. Bump, Close but no Cigar: the WHO Framework Convention on Tobacco Control’s Futile Ban on Tobacco Advertising, 17 EMORY INT'L L.REV. 1251, 1257-58 (2003).
8 The World Bank Group, Curbing the Epidemic: Governments and the Economics of Tobacco Control, http://www.worldbank.org/tobacco/chapter6.asp.
of tobacco is the conclusion of the Framework Convention on Tobacco Control (the “Framework Convention” or FCTC), which establishes mechanisms to control the use and the proliferation of tobacco.
However, if we look more closely at the nature and the contents of the FCTC, we will find that although there have been many useful schemes and efforts introduced to ensure that tobacco use will be reduced, more complete and comprehensive national measures and international cooperation are still insufficient.
In this paper, the author will firstly review the history of the Framework Convention and the structures and approaches taken by it. The paper will also identify the already established global governance of tobacco control through a two-pillar/one-roof framework. Then it will point out the insufficient aspects of global governance framework and the need to build a sounder one to better cope with global control of tobacco.
II. NEGOTIATION HISTORY OF FCTC
According to the WHO, the idea for an international instrument for tobacco control was initiated in May 1995 at the 48th World Health Assembly. In 1996, the 49th World Health Assembly adopted resolution WHA49.17, requesting the Director-General of the WHO to initiate the development of a WHO Framework Convention on Tobacco Control. However, it was not until 1999 did the work on the WHO Framework Convention on Tobacco Control begin.10 The relevant points of time are as the following table:11
Time Steps and events
1996 The 49th World Health Assembly adopted resolution WHA49.17, requesting the Director-General of WHO to initiate the development of a WHO Framework Convention on Tobacco Control.
May 1999 52nd World Health Assembly calls for works on the WHO Framework Convention on Tobacco Control to begin; technical working group established; Intergovernmental Negotiating Body established.
October 1999 First session of the technical working group.
March 2000 Second session of the technical working group. Document produced with provisional texts of proposed draft elements for the Framework Convention; WHO
10 See http://www.who.int/tobacco/framework/negotiations/en/index.html. 11 See WHO website, http://www.who.int/tobacco/framework/history/en/index.html.
Director-General calls for public hearings on issues surrounding the Framework Convention.
May 2000 53rd World Health Assembly calls for negotiations on the Framework Convention to begin.
October 2000 Public forum hears cases made by the public health community, the tobacco industry, and farmers’ groups; proceedings made publicly available. First session of the Negotiating Body: Ambassador Celso Amorim of Brazil elected as Chair. Work starts on preparing a Chair's text of the Framework Convention.
January 2001 Chair's text of the Framework Convention released as basis for further negotiations.
March to May 2001
Regional intersessional consultations held in preparation for the second session of the Negotiating Body.
April to May 2001
Second session of the Negotiating Body. First partial draft of the Framework Convention produced.
September to November 2001
Regional intersessional consultations held in preparation for the third session of the Negotiating Body.
November 2001
Third session of the Negotiating Body. Revisions made to the Framework Convention draft text.
February to March 2002
Regional intersessional consultations held in preparation for the fourth session of the Negotiating Body.
March 2002 Fourth session of the Negotiating Body. Ambassador Seixas Corrêa from Brazil elected as new Chair. Significant progress on draft text, with new Chair's text prepared.
July 2002 New Chair's text of the Framework Convention released as basis for further negotiations.
July to August 2002
UN headquarters, New York, USA, hosts international technical conference on illicit trade in tobacco products. August to
September 2002
Regional intersessional consultations held in preparation for the fifth session of the Negotiating Body.
October 2002 Fifth session of the Negotiating Body. Negotiations address six main issues: advertising, promotion and sponsorship; financial resources; illicit trade; liability and compensation; packaging and labelling; trade and health. January 2003 Revised Chair's text of the Framework Convention
issued.
February 2003 Regional intersessional consultations held in preparation for the sixth session of the Negotiating Body.
February to March 2003
Sixth and final session of the Negotiating Body, which agrees to transmit the Framework Convention text to the 56th World Health Assembly for consideration for adoption.
May 2003 56th World Health Assembly unanimously adopts the Framework Convention.
June 2003 Framework Convention opens for signature (There is one year signature period, after which, countries can still ratify the Convention. The WHO FCTC will enter into force on the ninetieth day following the date of deposit of the fortieth instrument of ratification, acceptance, approval, formal confirmation or accession with the Depositary.)
July 2003 World Conference on Tobacco or Health, Helsinki. Dr. Lee Jong-wook the new Director-General of the WHO, calls on all countries to quickly sign and ratify the Framework Convention.
June 30, 2003 to June 29, 2004
FCTC is available for signature at U.N. headquarters in New York.
November 29, 2004
Peru deposited the 40th instrument of ratification, the minimum number for the Convention to enter into force. February 6-17,
2006
The first Conference of the Parties will take place in Geneva.
From these stages, we can find that although things were progressing as time goes on, the process of drafting and concluding the FCTC is not so smooth and without any difficulty. From the beginning of initiating the treaty to the final completion of it, it took as long as ten years. During these years, the negative understanding about tobacco has not been substantially different. Prior to the negotiations of the Framework Convention, it had been very well recognized the harmful effect arising from the use of tobacco. After these years, there have been only more evidences to show more diseases being related with the use of tobacco. However, during the past ten years, there have not been many innovative steps, measures or policies to effectively deal with such use. The policy options available for governments to take are not many.
III. THE MAIN CONTENTS AND THE TWO-PILLAR/ONE-ROOF
STRUCTURE OF GLOBAL GOVERNANCE IN THE CONVENTION The Convention has 11 Parts in total covering the areas of definition,
the objective, measures relating to the reduction of demand and supply, the protection of the environment, and the liability, cooperation, institutional arrangement and dispute settlement issues. It lists policies options considered appropriate or effective by the Parties.
In Part I of the Convention, there are definition of terms used in the Convention listed in Article 1. Article 2 includes provisions encouraging Parties to implement measures beyond those required by this Convention and its protocols and governing the relationship between this Convention and other agreements and legal instruments.
In Part II of the Convention, it lists in Article 3 its objective being: [T]o 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 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.
It also sets the guiding principles in Article 4 that “[e]very person should be informed of the health consequences, addictive nature and mortal threat posed by tobacco consumption and exposure to tobacco smoke and effective legislative, executive, administrative or other measures should be contemplated at the appropriate governmental level to protect all persons from exposure to tobacco smoke”; that “[s]trong political commitment is necessary to develop and support, at the national, regional and international levels, comprehensive multisectoral measures and coordinated responses”; that “[i]nternational cooperation . . . is an important part of the Convention”; that “[c]omprehensive multisectoral measures and responses to reduce consumption of all tobacco products at the national, regional and international levels are essential”; that “[i]ssues relating to liability . . . are an important part of comprehensive tobacco control”, that “[t]he importance of technical and financial assistance to aid the economic transition of tobacco growers and workers . . . should be recognized and addressed”, and that “[t]he participation of civil society is essential in achieving the objective of the Convention and its protocols.” Under Part II, the Convention also requires Parties in Article 5 to “develop, implement, periodically update and review comprehensive multisectoral national tobacco control strategies, plans and programs in accordance with this Convention and the protocols to which it is a Party.”
In Part III, Article 6, Parties to the Convention recognize that “price and tax measures are an effective and important means of reducing tobacco consumption by various segments of the population, in particular young
persons.” The Convention thus urges Parties to determine and establish their taxation policies taking account of its national health objectives concerning tobacco control and adopt or maintain, as appropriate, measures. Articles 7 through 13 also require Parties to adopt certain non-price measures to reduce the demand for tobacco, including protection from exposure to tobacco smoke; regulation of the contents of tobacco products, regulation of tobacco product disclosures; packaging and labelling of tobacco products; education, communication, training and public awareness; tobacco advertising, promotion and sponsorship; and demand reduction measures concerning tobacco dependence and cessation.
In Part IV of the Convention (from Articles 15 to 17), it requires Parties to take measures relating to the reduction of the supply of tobacco, which include the elimination of illicit trade in tobacco products; the prohibition of the sales of tobacco products to or by minors; and the provision of support for economically viable alternative activities.
Part V (Article 18) requires Parties 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 (Article 19) requires Parties to consider taking legislative action or promoting their existing laws to deal with criminal and civil liability, including compensation.
Part VII (Articles 20, 21 and 22) requires Parties to develop and establish research and surveillance programs, to submit periodic reports to the Conference of the Parties on their implementation of the Convention and to cooperate directly or through competent international bodies to strengthen their capacity to fulfill the obligations arising from this Convention. Part VIII (Articles 23 to 26) is about institutional arrangements (to establish the Conference of the Parties) and financial resources. Part IX (Article 27) is about the settlement of disputes. Part X (Articles 28 and 29) is to deal with amendments to the Convention and adoption and amendment of annexes. Part XI (Articles 30 onwards) is for final provisions.
If we look more closely into the structure and contents of the Convention, there are three main groups of provisions. The first group of provisions is about the implementation by Parties. The second group is about the cooperation at international level. The third group is the mechanism to ensure that the rules are observed and implemented by the Parties. The paper considers these groups of provisions being tow pillars and one roof.
The essence of the first pillar is the minimum requirements for domestic practices, measures, policies and regulations as stipulated in paragraph 1 of Article 2 and other articles requiring or urging Parties to formulate their policies and to take measures for the purposes of reducing
demand and supply of tobacco. It requires the comprehensive ban on tobacco advertising, promotion and sponsorship, the regulation of packaging and labeling of tobacco products, the requirement of protection from exposure to tobacco smoke, the requirement of elimination of illicit trade, an expectation on taxation, the requirement on product regulation and ingredient disclosure, the requirement on the prohibition of sales of tobacco products to and by minors, the requirement of provision of support for economically viable alternative activities for tobacco workers and growers, the requirement in legal proceeding relating to civil and criminal liability, the requirement about education, communication, training and public awareness, the requirement about effective programs to promote cessation of tobacco use, and the requirement for the protection of the environment and the health of persons.
The second pillar is the requirement of international cooperation, including the use of bilateral or multilateral cooperation on matters of tobacco control. Article 2, paragraph 2 is of his kind. There are other provisions designed to enhance international cooperation, including the requirement to provide related information, the requirement to have periodic reports on the implementation, the requirement on cooperation with international and intergovernmental organizations, and the requirement to provide funding for developing Parties and Parties with economies in transition.
The roof is the dispute settlement mechanism established in Article 27 of the FCTC to ensure the discharge of duties by Parties to the Convention.
IV. SOME POSITIVE POINTS OF THE GOVERNANCE UNDER
CURRENT FCTCSTRUCTURE
People expected very much about the passage and the putting into place of the Convention. As a matter of fact, the Convention has also incorporated many professional views in its texts. However, if we look more closely at the relevant arrangements in the FCTC, there are some areas which can be further considered refining. In this section, the paper is to discuss the Convention having made a difference and the choice of using framework arrangement.
A. The Differences Made by the Convention
Prior to the enactment of FCTC, there have already been programs and recommendations to help and recommend countries in fighting the use of tobacco. For instance, in 1986, the World Health Assembly (WHA) urged Member States of the WHO to implement the following smoking control strategies:
(1) ensuring non-smokers to receive effective protection from involuntary exposure to tobacco smoke; (2) promoting abstention from the use of tobacco; (3) ensuring that a good example is set in all health-related premises and by all health personnel; (4) eliminating of socioeconomic, behavioral and other incentives to maintain and promote the use of tobacco; (5) requiring prominent health warnings; (6) establishing programs of education and public information on tobacco and health issues; (7) monitoring trends in smoking, tobacco-related diseases and effectiveness of national smoking control action; (8) promoting viable economic alternatives to tobacco production, trade, and taxation; and (9) establishing a national focal point to stimulate, support and coordinate all the above control activities.12
The WHA also urged Member States:
(1) to implement multisectoral comprehensive tobacco control strategies which, at a minimum, contain the nine elements outlined in WHA39.14 resolution; (2) to consider including in their tobacco control strategies plans for legislation or other effective measures at the appropriate government level providing for: (a) effective protection from involuntary exposure to tobacco smoke; (b) progressive financial measures aimed at discouraging the use of tobacco, and progressive restrictions and concerted action to eliminate eventually all direct and indirect advertising, promotion, and sponsorship concerning tobacco.13 Many of the strategies are similar to what are included in the current FCTC.
Thus, with respect to the contents of the Framework Convention, they are basically not innovative measures created during the negotiations. However, the difference is that the Convention is a binding instrument. Parties to the Convention have the obligation to implement the provisions of the treaty, while the WHA resolutions only urge countries to carry out certain implementing steps to control the use of tobacco.
As indicated by the WHO about the FCTC making a difference: [n]early 20 World Health Assembly resolutions have addressed tobacco control. Numerous tobacco control campaigns by the WHO and others have made an impact. The difference with the
12 World Health Assembly Resolution, Tobacco or Health, WHA39.14 (May 14, 1986), available at http://www.who.int/tobacco/framework/wha_eb/wha39_14/en/.
13 World Health Assembly Resolution, Tobacco or Health, WHA43.16 (May 17, 1990), available at http://www.who.int/tobacco/framework/wha_eb/wha43_16/en/.
WHO Framework Convention on Tobacco Control, however, is that for those countries who ratify the treaty, the obligations will become legally binding once the treaty as a whole comes into force.14
Although the aspect of binding effect is not the whole thing of the Framework Convention, such legally binding effect is the key to the future success of tobacco control being implemented at national and international levels. It certainly has laid the foundation for the effective tobacco control policy.
B. The Positive Aspects of Using the Framework Approach for the Convention
One issue being mentioned throughout the discussions and negotiations, but not seriously debated, is the decision of applying “framework” type of treaty.
There are examples for international practices to use “framework” treaty so as to incorporate more general terms and principles for further development of more specific protocols on steps and measures to be taken in future stages. Montreal Protocol on Substances that Deplete the Ozone Layer is an example using framework treaty to serve as a basis for further supplement and implementation in later stages. The FCTC is also of this kind to proclaim basic policy objectives and to create governing institutions to make decisions.15
Although there are successful examples to use framework agreement, such framework arrangement is not a guarantee to success in its future refinement and implementation of the framework. Due to the lack of previous experience of the WHO in concluding international binding treaty, not to mention the lack of experience of framework agreement, the ability of successfully carrying out the goals and objectives is in doubt from some perspectives. It is stated by a commentator that:
Critics of the WHO’s use of a framework convention, however, do not believe that the WHO is prepared to undertake the long-term process of international legal development. This criticism arises from the sheer fact that the WHO has only utilized guidelines and recommendations to further its mission. Despite the WHO’s legal ability to adopt treaties and binding international regulations, the WHO has not previously demonstrated that it has the ability to develop, monitor, and
14 Supra note 9.
15 James G. Hodge, Jr. and Gabriel B. Eber, Tobacco Control Legislation: Tools for Public Health Improvement, 32J.L.MED.ÐICS 516, 516 (2004).
maintain international agreements aimed at the protection of public health.
[T]he Framework Convention is new territory for the WHO. Without strong management, many critics believe that such reform will not increase the effectiveness of domestic laws in the developed world and will not effectively aid the developing world.16
However, if we look at the contents of the FCTC, this framework treaty is not just framework at all. There are detailed provisions requiring Parties to specifically carry out their duties in the implementation of the provisions of the Convention.
Such detailed provisions in the Framework Convention are considered by some to be not appropriate, as it may negatively affect the future enactment of detailed and specific protocols to effectively implement the Convention. A commentator states:
The conversion of the “framework convention” into a code for tobacco regulation may ultimately prove to be rather unfortunate. The Convention is probably too detailed to justify the negotiation of further protocols, yet many important provisions had to be watered down to accommodate the needs and domestic circumstances of the more than 150 different countries that were negotiating the treaty. For example, countries that wanted a total ban on all tobacco advertising could easily have promulgated an optional protocol requiring such a ban, and – if the claims made by a majority of the delegates in Geneva are to be believed – most of the countries in the world would have signed on to it. Because advertising was substantively addressed in full in the main text of the Convention, however, the advertising article is riddled with caveats and exceptions that were inserted to accommodate an array of constitutional and economic feasibility concerns.17
Thus, some people have doubt about the FCTC being the framework and being not detailed enough; some others have doubt about the Convention being too specific (just like regulations).
From the term used, the Framework Convention does have such appearance to lead people into thinking that it only sets up general principles to be supplemented in the future. As a matter of fact, the Convention indeed has areas to be further supplemented. However, from the provisions of the Convention, there are many articles directly requiring
16 Christine P. Bump, supra note 7, at 1266-67. 17 Gregory F. Jacob, Without Reservation, 5 C
Parties to take specific measures and many of them can be immediately implemented. Thus we have to escape from looking at the term used for the title of the Convention, but to look into the substantive provisions so as to have the clearer picture of the treaty.
It should be correct to state that more specific provisions should normally be more useful than general and abstractive provisions, from practical perspective. Thus these specific provisions are important achievements of the negotiators. Parties should be in better position to make them work in their respective jurisdictions.
From another perspective, the use of the term “Framework” should also be very useful to allow the treaty to continuously grow further in the future. Especially there are many provisions listing the Convention itself and the protocols together (such as Articles 2 to 5 of the Convention). There are other provisions instructing Parties to enact or to consider enacting protocols in the future (such as Article 13, paragraph 8 requiring Parties to elaborate protocol for a comprehensive ban on cross-border advertising, promotion and sponsorship, and Article 23, paragraph 5 suggesting to adopt protocols). These provisions certainly would help or make Parties to work toward developing useful protocols for the purpose of enhancing the control of tobacco use.
V. THE NEED TO STRENGTHEN THE FIRST PILLAR
There are some points the paper considers to be important in strengthening the first pillar regarding domestic implementation. The following are for the purpose of illustration.
A. The Minimum Requirement Provision
Although Article 2, paragraph 1 is not the only provision dealing with domestic implementation, it is surely the most basic one. Paragraph 1 of Article 2 states that, “In order to better protect human health, Parties are encouraged to implement measures beyond those required by this Convention and its protocols, and nothing in these instruments shall prevent a Party from imposing stricter requirements that are consistent with their provisions and are in accordance with international law.”
This paragraph implies that those set at the Framework Convention are minimum standards. Thus the Convention encourages Parties to impose stricter requirements. But these stricter requirements must be consistent with the FCTC and its protocols and be in accordance with international law.
Although this provision does not impose legal obligations on Parties, it does have strong reminding and encouraging effect. However if there is
going to be a real effect of encouragement, there must be more specific and correct information so as to let countries comprehend what kinds of stricter requirements, which are consistent with the FCTC, are available for the adoption of Parties. There is a big room to develop some more guidelines or to do some more useful researches to inform Parties about the costs to the society to take stricter requirements and about the things to be taken into account in the implementation of these stricter rules. These guidelines or researches will also reduce Parties’ costs to carry out duplicated works and efforts.
B. The Need to Focus on the Control of the Source
The current strategies of the FCTC are to control the demand and the supply. Regarding the control of supply, there are only three provisions: Article 15 is about illicit trade; Article 16 is about sales to and by minors; and Article 17 is the promotion of economically viable alternatives for tobacco workers, growers and sellers.
It is of course important to eliminate illicit trade in tobacco products and to ban tobacco sales to and by minors. The author’s view is that control of the supply from the source should be an even more effective and long-term method to reduce the hazardous product. However, the treaty does not say much about the control of the supply from the source. The provision in Article 17, stating that “Parties shall, in cooperation with each other and with competent international and regional intergovernmental organizations, promote, as appropriate, economically viable alternatives for tobacco workers, growers and, as the case may be, individual sellers”, is very vague and not having any binding effect and does not have much content in helping the elimination of planting and production of tobacco. The ignorance of paying attention to the ultimate source of supply needs to be corrected.
Another source of tobacco products is the producers of cigarettes. If there is stricter requirement about the imposition of liabilities on the producers of cigarettes, it would have important deterrent effects against the producers. However, the only articles dealing with the liabilities of the producers are Articles 4 and 19. Article 4, paragraph 5 states that: “Issues relating to liability, as determined by each Party within its jurisdiction, are an important part of comprehensive tobacco control.” This is only declarative in nature and does not have legal effect. While Article 19 only provides in paragraph 1 that “the Parties shall consider taking legislative action or promoting their existing laws, where necessary, to deal with criminal and civil liability, including compensation where appropriate.” The term “deal with” does not have much meaning about instructing Parties to take any measure or policy. Neither does the term “shall consider”
produce any possible legal or sentimental result in pushing the Parties to take policy or measure in imposing liabilities on producers. The author trusts that this is another important area needed to be greatly improved.
C. Some Other Examples to Show the Need of Strengthening For instance, although Article 5 provides in paragraph 1 that each Party shall develop and implement comprehensive multisectoral national tobacco control strategies, plans and programs, for many Parties, the specific ways and means or even some model plans and programs are most critical and they are yet to be developed.
For instance, researches have indicated that the raise of price would have such effect of reducing the consumption. The World Bank estimated that a 10% increase in tobacco prices would result in a reduction of 4% of the demand in high-income countries and 8% in lower-income countries.18 The raise of prices is usually done by imposing high taxes. However, levying of high taxes by the government is ironical in nature. If the policy of the government is to reduce the use of tobacco, it is suggesting that smoking is harmful and not a right thing. The collection of tax (especially high tax) would instead suggest that governments make profits from wrong things or things that are harmful to the people. Also the sales of tobacco products and producers could have even more justified position after they have paid high taxes. Another concern could be that some governments could become more dependent on the revenue from the collection of tobacco taxes and this would thus make the ultimate elimination of the use of tobacco more impractical. The use of taxes as a method of tobacco control needs to be refined or remodeled.
VI. THE NEED TO STRENGTHEN THE SECOND PILLAR
It is considered by the WHO that “[t]obacco needs to be regulated internationally because globalization has facilitated the spread of the tobacco epidemic through a complex mix of factors that transcend national borders. This means that countries cannot regulate tobacco solely through domestic legislation.”19 This is very true taking also into account tobacco products being highly commercialized ones and being internationally transacted.
There are some mechanisms to support the international efforts to counter the spread of tobacco products and the use of them. For instance, the FCTC envisages the need of establishing agreements between or among
18 See the History of Smoking, supra note 1. 19 See the History of Smoking, supra note 1.
Parties for such purposes and thus admits, under paragraph 2 of Article 2, the right of Parties to enter into bilateral or multilateral agreements, including regional or sub-regional agreements, on issues relevant or additional to the Convention and its protocols. The qualification is that such agreements shall be compatible with the Parties’ obligations under the Convention and its protocols. However, the provision does not mention that such agreements are preferably made to include as many countries as possible so as to maximize the gains arising from the agreements and not to discourage countries to put reasonable resources to join the multiparty efforts to fight against the spread and the use of tobacco.
For instance, the Convention emphasizes the importance of international cooperation and thus provides in paragraph 3 of Article 4 that: “International cooperation, particularly transfer of technology, knowledge and financial assistance and provision of related expertise, to establish and implement effective tobacco control programmes, taking into consideration local culture, as well as social, economic, political and legal factors, is an important part of the Convention.” For less advanced countries, the important part would be to receive such assistance and expertise from more advanced countries. Although the provision does not clearly require doing so, the author considers that an urgent matter for the Parties to deal with would be to develop tailor-made assistance for those developing countries in need of such help.
Also the technical and financial assistance, as provided in paragraph 6 of Article 4, to aid the economic transition of tobacco growers and workers whose livelihoods are seriously affected as a consequence of tobacco control programs in developing country Parties is another urgent matter to be tackled.
The coverage of the FCTC is also an important issue needing our attention. Although there have been 168 signatories, among which 124 are Parties, the coverage is still not near to a comfortable extent. Some big countries or countries with large population are not on the list. Russia and Indonesia are the prominent ones.20 Also Article 34 requires signatories to be the Members of the WHO or the Members of United Nations and Article 35 requires the FCTC to be ratified, acceded, approved or accepted by States. These would prevent those territories, not Members to the WHO or the U.N. and not being recognized as States, to participate or engage in the Framework Convention and its related activities and efforts. The author suggests to develop schemes to encourage the joining of the Convention for those U.N. Members not yet Parties to the FCTC on the one hand, and to
20 The current Parties to the Convention are listed at the WHO website: http://www.who.int/
tobacco/framework/countrylist/en/index.html. The names of the WHO Member States which are not Parties to the FCTC can be found at http://www.who.int/tobacco/framework/non_parties/en / index.html (last visited Nov. 15, 2005).
provide ways for those not recognized as State by many countries, such as Taiwan, to join the Convention so as to form a real global governance of the control of tobacco on the other hand.
VII. THE NEED TO STRENGTHEN THE ROOF
Although the Convention is binding on its Parties, it uses many non-mandatory words in some key provisions. This would allow Parties to have rooms to decide how and whether to implement. The apparent negative result is that the effect of Convention could be in doubt in regard to these aspects.
For instance, in Article 2, parties are only encouraged to implement measures beyond those required by the Convention and its protocols. Also for instance, paragraph 2 of Article 5 only states that Parties “should” take account of national health objects concerning tobacco control and adopt or maintain measures prohibiting or restricting sales or importation by international travelers of duty-free tobacco products.
Although some other provisions use the mandatory form, they do not contain much mandatory contents. For instance, Article 5 of the Convention requires Parties to develop, implement, update and review comprehensive multisectoral national tobacco control strategies, plans and programs. Another example is in Article 14, which only requires Parties to “endeavor” to design and implement effective programs aimed at promoting the cessation to tobacco use. Yet another example is in Article 19, which only requires Parties “to consider” taking legislative action or promoting their existing laws to deal with criminal and civil liability, including compensation. However, the contents of the strategies, plans and programs are largely subject to the decisions of Parties.
Sometimes, the Convention defers too much to the domestic constitutional rules in the formulation of international norms. For example, Article 13 allows a Party not to undertake a comprehensive ban due to its constitution or constitutional principles, but to restrict advertising.
In addition to the loose requirements in the Convention, which would hamper the achievement of the goals set forth in the Convention, the dispute settlement mechanism is also very loose and not to be productive.
Firstly, paragraph 1 of Article 27 requires Parties to seek through diplomatic channels a settlement of the dispute through negotiation or any other peaceful means of their own choice, including good offices, mediation, or conciliation. The diplomatic channel of negotiation would make those politically and economically large countries having superior and overwhelmed position to deal with smaller countries. This certainly is not a very appealing dispute settlement mechanism for many countries.
conciliation) are those not commonly producing fruitful outcomes in other international organizations or treaties. The author does not have clue to believe that the availability of such means would generate different, but fruitful, results under the FCTC.
Although paragraph 2 of Article 27 mentions about ad hoc arbitration, it is still not an automatic mechanism which the Parties can decide to choose on its own. The provision requires that Parties must have declared in writing to the Depositary that, for a dispute not resolved in accordance with paragraph 1 of this Article, it accepts, as compulsory, ad hoc arbitration in accordance with procedures to be adopted by consensus by the Conference of the Parties. In other words, Parties can always decide not to declare to accept arbitration as a means to resolve their disputes with other Parties regarding the Convention. As a result, the usefulness and effectiveness of this provision is in doubt.
The paper does not consider that the Convention has strong roof to prevent leaking caused by the ineffectiveness of the many non-binding provisions as well as the non-compulsory admission of binding arbitration. Under the current arrangement, a collective effort promoted by the Conference of the Parties to push countries to declare the acceptance of arbitration to resolve the possible disputes arising and in relation to the Convention should be the preferable thing to do next.
VIII. CONCLUDING REMARKS
It is a very big step forward in forming the collective efforts to fight against tobacco through the putting into force of the Framework Convention. As shown at the WHO website, there have been some examples using the FCTC as a “large umbrella” to strengthen tobacco control.21 The remaining issue is how to effectively implement the rules established under the Convention.
The paper finds that although there are some positive arrangements helping the global governance of the efforts to fight against the use of tobacco, there are still areas to be improved. The current two-pillar and one-roof structure is a practical one. However, the two pillars and the one roof are all subject to further enhancement and refinement. If there is no immediate enhancement and refinement in a more efficient manner, it is likely that the authoritativeness of the Convention could be deteriorating in a quick speed. This would not be the thing that people would want to see.
REFERENCES Articles
Bump, Christine P. (2003), Close but no Cigar: the WHO Framework
Convention on Tobacco Control’s Futile Ban on Tobacco Advertising, 17 EMORY INTERNATIONAL LAW REVIEW 1251.
Hodge, James G., Jr. & Gabriel B. Eber (2004), Tobacco Control
Legislation: Tools for Public Health Improvement, 32 JOURNAL OF LAW,MEDICINE ÐICS 516.
Jacob, Gregory F. (2004), Without Reservation, 5 Chicago Journal of International Law 287.
Health-related Documents
World Health Assembly Resolution, Tobacco or Health, WHA39.14, 14 May 1986.
World Health Assembly Resolution, Tobacco or Health, WHA43.16, 17 May 1990.
Websites
Joel Spitzer, I Smoke Because I Like Smoking!, http://whyquit.com/joel/ Joel_01_02_I_Like.html.
The current Parties to the FCTC, http://www.who.int/tobacco/framework /countrylist/en/index.html.
The History of Smoking, http://www.who.int/tobacco/framework/faq/ en/index.html.
The World Bank Group, Curbing the Epidemic: Governments and the
Economics of Tobacco Control, http://www.worldbank.org/
tobacco/chapter6.asp.
WHO Member States not Parties to the FCTC, http://www.who.int /tobacco/framework/non_parties/en/index.html.
