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What Difference Would a Binding International Legal Instrument on Alcohol Control Make? Lessons from the World Health Organization Framework Convention on Tobacco Control’s Impact on Domestic Litigation

Published online by Cambridge University Press:  15 September 2020

Suzanne ZHOU Open the ORCID record for Suzanne ZHOU [Opens in a new window]
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Abstract

Since the adoption of the World Health Organization (WHO) Framework Convention on Tobacco Control (FCTC) in 2003, public health professionals have debated similar conventions covering other health risks, including potentially a Framework Convention on Alcohol Control. Much of this debate has focused on the merits of binding versus non-binding instruments in terms of commitments at the international level. In this paper, I draw on lessons from the WHO FCTC to discuss instead what the difference between binding and non-binding international legal instruments might mean for domestic legal frameworks for implementing regulatory measures for alcohol control. The paper looks at possible impacts on the authority of various national authorities to implement new measures, the ability of civil society to bring cases compelling more comprehensive regulatory measures and the defence of litigation brought by commercial-sector actors to prevent, delay or weaken the implementation of laws and regulations. It reflects on what lessons these might have for alcohol control governance.

Type
Special Issue on the Global Governance of Alcohol
Information
European Journal of Risk Regulation , Volume 12 , Special Issue 2: Symposium on COVID-19 Certificates and Special Issue on the Global Governance of Alcohol , June 2021 , pp. 514 - 529
Copyright
© Cancer Council Victoria (McCabe Centre for Law and Cancer), 2020. Published by Cambridge University Press

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Footnotes

*

Acting Manager, Prevention, McCabe Centre for Law and Cancer, Melbourne, Victoria, Australia; email: [email protected]. This paper was originally presented at a thematic meeting of the Kettil Bruun Society on Public Health and the Global Governance of Alcohol, as a draft paper titled “An International Normative Instrument for Alcohol Control – Lessons from the WHO FCTC for its Structure, Design and Status”. Many thanks to Anita George, Clare Slattery, Jonathan Liberman, Robin Room, the conference participants and the anonymous reviewer for their constructive comments. All errors remain my own.

References

1 For an overview of these proposals, see generally GL Burci, “Global Health Law: Present and Future” in GL Burci and B Toebes (eds), Research Handbook on Global Health Law (Cheltenham, Edward Elgar Publishing 2018) p 486.

2 See, eg, “A Framework Convention on Alcohol Control” (2007) 370 Lancet 1102; S Casswell, “Will alcohol harm get the global response it deserves?” (2019) 394 Lancet 1396.

3 World Health Organization, “Global Strategy to Reduce the Harmful Use of Alcohol” (2010).

4 S Casswell and J Rehm, “Reduction in global alcohol-attributable harm unlikely after setback at WHO Executive Board” (2020) 395(10229) The Lancet 1020–21; ER Fletcher, “Controversy Swirls over WHO Alcohol Reduction Strategy” (Health Policy Watch, 6 February 2020) <www.healthpolicy-watch.org/controversy-swirls-over-who-alcohol-reduction-strategy/> (last accessed 13 August 2020).

5 WHO (Decision of Executive Board), “Accelerating action to reduce the harmful use of alcohol” (7 February 2020) EB146(14), 146th sess, 12th meeting, agenda item 7.2, EB146/SR/12.

6 Constitution of the World Health Organization (opened for signature 22 July 1946, entered into force 7 April 1948) 14 UNTS 185 (WHO Constitution).

7 WHO Framework Convention on Tobacco Control (opened for signature 21 May 2003, entered into force 27 February 2005) 2302 UNTS 166 (WHO FCTC).

8 International Health Regulations (2005) (opened for signature 23 May 2005, entered into force 15 June 2007) 2509 UNTS 79 (IHRs).

9 World Health Organization Regulations regarding Nomenclature (Including the Compilation and Publication of Statistics) with respect to Diseases and Causes of Death (opened for signature 22 May 1967, entered into force 1 January 1968) 1172 UNTS 345 (Nomenclature Regulations).

10 E Granziera and SA Solomon, “The World Health Organization” in MJ Bowman and D Kritsiotis (eds), Conceptual and Contextual Perspectives on the Modern Law of Treaties (Cambridge, Cambridge University Press 2018) pp 881, 892–96.

11 WHO Constitution, supra, note 6, Art 21.

12 World Health Organization, The Feasibility of Developing an International Instrument for Tobacco Control: Report by the Director-General, Executive Board, 97th sess, Agenda Item Provisional Agenda Item 6, UN Doc EB97/INF.DOC./4 (30 November 1995) (“WHO FCTC Feasibility Study”).

13 Vienna Convention on the Law of Treaties (opened for signature 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 (VCLT).

14 United Nations International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, 58th sess, UN Doc A/CN.4/L.682 (13 April 2006) 210, 250.

15 Vienna Convention for the Protection of the Ozone Layer (opened for signature 22 March 1985, entered into force 22 September 1988) 1513 UNTS 293 (Ozone Convention).

16 United Nations Framework Convention on Climate Change (opened for signature 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107 (UNFCCC).

17 Kyoto Protocol to the United Nations Framework Convention on Climate Change (opened for signature 11 December 1997, entered into force 16 February 2005) 2303 UNTS 162 (Kyoto Protocol to the United Nations Framework Convention on Climate Change).

18 Paris Agreement (opened for signature 12 December 2015, entered into force 4 November 2016) C.N.92.2016.TREATIES-XXVII.7.d) (Paris Agreement).

19 Montreal Protocol on Substances that Deplete the Ozone Layer (opened for signature 16 September 1987, entered into force 1 January 1989) 1522 UNTS 3 (Montreal Protocol).

20 AL Taylor, “An International Regulatory Strategy for Global Tobacco Control” (1996) 21 Yale Journal of International Law 257; R Roemer, A Taylor and J Lariviere, “Origins of the WHO Framework Convention on Tobacco Control” (2005) 95(6) American Journal of Public Health 936–38.

21 World Health Organization, WHO FCTC Feasibility Study, UN Doc EB97/INF.DOC./4, supra, note 12.

22 ibid.

23 Taylor, supra, note 20, 294. Taylor described such conventions in the tobacco control context as “mandating that states enact extensive tobacco control regulations that encompass all of WHO’s recommendations for the last twenty-five years”. Arguably, the WHO FCTC as adopted is an example of a comprehensive convention so defined, having included and in many respects gone further than WHO’s recommendations in the resolutions of the twenty-five years before it.

24 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (opened for signature 22 March 1989, entered into force 5 May 1992) 1673 UNTS 57 (Basel Convention). The Basel Convention technical guidelines differ from the FCTC guidelines in that they are more strictly technical and cover different applications of the obligation to manage waste in an environmentally sound manner from different forms of waste: see, eg, Conference of the Parties to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, “Technical Guidelines for the Identification and Environmentally Sound Management of Plastic Wastes and for their Disposal” (COP Doc No UNEP/CHW.6/21, 23 August 2002). The FCTC guidelines are more normative and cover recommended ways to implement most of the demand reduction obligations under the FCTC, including clarification and guidance on the meanings of relevant terms under the Convention.

25 Similarly, the Basel Convention has a Basel Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and their Disposal (opened for signature 10 December 1999, not yet in force) UNEP/CHW.1/WG/1/9/2 (Basel Protocol).

26 See, generally, J Liberman, “The Power of the WHO FCTC: Understanding its Legal Status and Weight” in AD Mitchell and T Voon (eds), The Global Tobacco Epidemic and the Law (Cheltenham, Edward Elgar Publishing 2014) pp 48–63.

27 British American Tobacco Ltd v Cabinet Secretary for the Ministry of Health (High Court (Kenya), Mumbi J, Petition No 143 of 2015, 24 March 2016) [107].

28 ibid [111]. See Liberman, supra, note 26; S Zhou and J Liberman, “The Global Tobacco Epidemic and the WHO Framework Convention on Tobacco Control – The Contributions of the WHO’s First Convention to Global Health Law and Governance” in GL Burci and B Toebes (eds), Research Handbook on Global Health Law (Cheltenham, Edward Elgar Publishing 2018) p 340.

29 World Health Organization, “International Code of Marketing of Breast-milk Substitutes” (Code adopted in WHA Res No 34.22, 21 May 1981).

30 World Health Organization, “WHO Global Code of Practice on the International Recruitment of Health Personnel” (Code adopted in WHA Resolution No 63.16, 21 May 2010).

31 World Health Organization, “Set of Recommendations on the Marketing of Foods and Non-Alcoholic Beverages to Children” (Recommendations adopted in WHA Res No 63.14, 21 May 2010).

32 World Health Organization, “SAFER: Preventing and Reducing Alcohol-Related Harms”.

33 World Health Organization, “SHAKE the Salt Habit: The SHAKE Technical Package for Salt Reduction”.

34 World Health Organization, “Global Strategy to Reduce the Harmful Use of Alcohol” (2010).

35 World Health Organization, “Global Action Plan for the Prevention and Control of Noncommunicable Diseases 2013–2020”.

36 World Health Organization, “Best Buys and Other Recommended Interventions for the Prevention and Control of Noncommunicable Diseases: Updated (2017) Appendix 3 of the Global Action Plan for the Prevention and Control of Noncommunicable Diseases 2013–2020”, 31 May 2017.

37 Dutch Non-Smokers Association CAN (Club of Active Non-Smokers) v The State of the Netherlands, Case Number: 200.205.667/01, 13 February 2018 (Hague Court of Appeal).

38 See, eg, SLA Yeung and TH Lam, “Unite for a Framework Convention for Alcohol Control” (2019) 393(10183) Lancet 1778.

39 Casswell and Rehm, supra, note 4; S Casswell and T Thamarangsi, “Reducing harm from alcohol: call to action” (2009) 373(9682) Lancet 2247–57.

40 See, eg, Yeung and Lam, supra, note 38; R Room, “Healthy is as healthy does: Where will a voluntary code get us on international alcohol control?” (2013) 108 Addiction 456.

41 See, eg, Casswell, supra, note 2.

42 See, eg, ibid; B Baumberg, “World trade law and a framework convention on alcohol control” (2010) 64 Journal of Epidemiology and Community Health 473–74.

43 See, eg, Casswell and Rehm, supra, note 4.

44 The Lancet, “A Framework Convention on Alcohol Control”, supra, note 2.

45 Conference of the Parties to the WHO Framework Convention on Tobacco Control, Impact assessment of the WHO FCTC: Report of the Convention Secretariat, 6th sess, Agenda Item 4.7, UN Doc FCTC/COP/6/15 (16 June 2014); Conference of the Parties to the WHO Framework Convention on Tobacco Control, Impact assessment of the WHO FCTC: Report by the Expert Group, 7th sess, Agenda Item 5.2, UN Doc FCTC/COP/7/6 (27 July 2016).

46 See, eg, UN General Assembly, Political Declaration of the Third High-Level Meeting of the General Assembly on the Prevention and Control of Noncommunicable Diseases, Resolution 73/2, UN Doc A/RES/73/2 (17 October 2018, adopted 10 October 2018); UN General Assembly, Political Declaration of the High Level Meeting on Universal Health Coverage, GA Res 74/2, UN Doc A/RES/74/2 (18 October 2019, adopted 10 October 2019).

47 UN General Assembly, Transforming Our World: The 2030 Agenda for Sustainable Development, Resolution 70/1, UN Doc A/RES/70/1 (21 October 2015, adopted 25 September 2015).

48 For a discussion on the differences between domestic and international regulation in these respects, see AL Taylor and IS Dhillon, “An international legal strategy for alcohol control: not a framework convention – at least not yet” (2013) 108 Addiction 450; Room, supra, note 40; AL Taylor and IS Dhillon, “Twenty-first century international lawmaking for alcohol control” (2013) 108 Addiction 461; J Liberman, “Alternative legal strategies for alcohol control: not a framework convention – at least not right now” (2013) 108 Addiction 459.

49 Eg, according to the WHO FCTC Secretariat in its report on dispute settlement under the treaty, no cases have been brought under the formal dispute settlement systems of multilateral environmental agreements: Conference of the Parties to the WHO Framework Convention on Tobacco Control, Issues Related to Implementation of the WHO FCTC and Settlement of Disputes Concerning the Implementation or Application of the Convention: Report by the Convention Secretariat, FCTC/COP/7/20 (27 July 2016).

50 Compare World Health Organization, “WHO Report on the Global Tobacco Epidemic 2019” (Report, 26 July 2019) and Secretariat of the WHO Framework Convention on Tobacco Control, “2018 Global Progress Report on Implementation of the WHO Framework Convention on Tobacco Control” (Report, 2018).

51 See, eg, J Enoch and P Piot, “Perspective – Human Rights in the Fourth Decade of the HIV/AIDS Response: An Inspiring Legacy and Urgent Imperative” (2017) 19(2) Health and Human Rights <www.hhrjournal.org/2017/12/perspective-human-rights-in-the-fourth-decade-of-the-hiv-aids-response-an-inspiring-legacy-and-urgent-imperative/> (last accessed 13 August 2020); L Cabal and P Eba, “Editorial – Learning from the Past: Confronting Legal, Social, and Structural Barriers to the HIV Response” (2017) 19(2) Health and Human Rights <www.hhrjournal.org/2017/12/editorial-learning-from-the-past-confronting-legal-social-and-structural-barriers-to-the-hiv-response/> (last accessed 13 August 2020).

52 K Buse et al, “Urgent Call for Human Rights Guidance on Diets and Food Systems” (BMJ Opinion, 30 October 2019) <https://blogs.bmj.com/bmj/2019/10/30/urgent-call-for-human-rights-guidance-on-diets-and-food-systems/> (last accessed 13 August 2020). See Office of the United Nations High Commissioner for Human Rights and the Joint United Nations Programme on HIV/AIDS, International Guidelines on HIV/AIDS and Human Rights (2006 consolidated version, UNAIDS, 2006).

53 See C Slattery, “Using Human Rights Law to Progress Alcohol Control” (2020) European Journal of Risk Regulation, available online first at <https://www.cambridge.org/core/journals/european-journal-of-risk-regulation/article/using-human-rights-law-to-progress-alcohol-control/268536F17A3EBA1C7B1A6FAB058088AD> (last accessed 13 August 2020); International Covenant on Economic, Social, and Cultural Rights (opened for signature 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR); Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art 12), UN Doc E/C.12/2000/4 (11 August 2000).

54 For more on this point, see SY Zhou, “Managing Fragmentation between International Trade and Investment Law and Global Priorities for Noncommunicable Disease Prevention in Food and Alcohol” (2018) 18(1) QUT Law Review 169–90.

55 Legislative Consultation with Constitutional Division of the Supreme Court (Supreme Court (Costa Rica), No. 2012-003918, 20 March 2012).

56 Ceylon Tobacco Company v Minister of Health (Court of Appeal (Sri Lanka), No CA 336/2012 (Writ), 12 May 2014).

57 British American Tobacco Ltd v Cabinet Secretary for the Ministry of Health (Court of Appeal (Kenya), Civil Appeal No 112 of 2016, 17 February 2017).

58 Cancer Council Victoria, “19.2 Implications of the WHO FCTC for Australia” (Tobacco in Australia: Facts and Issues, September 2018) <www.tobaccoinaustralia.org.au/chapter-19-ftct/19-2-implications-of-the-who-fctc-for-australia> (last accessed 13 August 2020).

59 Supra, note 37.

60 Stichting Rookpreventie Jeugd v. de Staat der Nederlanden (Court of First Instance of The Hague, No Case No. c/09/475711/HA ZA 14-1193, 9 November 2015) (“Youth Smoking Prevention Foundation v Netherlands”). See, generally, G Karapetian and B Toebes, “The Legal Enforceability of Articles 8.2 and 5.3 of the WHO Framework Convention on Tobacco Control: The Case of the Netherlands” (2018) 4 Brill Open Law 1–13, for a discussion of these cases and an overview of WHO FCTC enforcement litigation in the Netherlands.

61 OA Cabrera and J Carballo, “Tobacco Control Litigation: Broader Impacts on Health Rights Adjudication” (2013) 41(1) Journal of Law, Medicine & Ethics 147–62.

62 Love Care Foundation v Union of India, Writ Petition No.1078 (M/B) of 2013 (Supreme Court of India, 21 July 2014).

63 5000 Citizens against Article 3 of Law No. 28705, Exp No. 00032-2010-PI/TC, 19 July 2011 (Constitutional Court of Peru).

64 British American Tobacco South Africa (Pty) Ltd v Minister of Health (463/2011) [2012] ZASCA 107; [2012] 3 All SA 593 (SCA) (20 June 2012).

65 Arrêt n° 37/2011 du 15 mars 2011, Constitutional Court of Belgium (2011).

66 British American Tobacco Ltd v Attorney General and Centre for Health, Human Rights and Development (Constitutional Court of Uganda No 46 of 2016, 28 May 2019).

67 Judgment C-830/10 (Constitutional Court of Colombia, 20 October 2010).

68 Action of Unconstitutionality Brought by Rodriguez Robles and Espinosa on Behalf of British American Tobacco Panama SA, against an Article in Executive Decree No. 611 of 3 June 2010 of the Ministry of Health, Docket No. 192-11 (Supreme Court of Justice, 28 May 2014).

69 Case No. 2158-2009 of 16 February 2010, Constitutional Court of Guatemala.

70 See, generally, McCabe Centre for Law and Cancer and Campaign for Tobacco Free Kids, Report on WHO FCTC in Legislation and Litigation (7 August 2015); SY Zhou, JD Liberman and E Ricafort, “The Impact of the WHO Framework Convention on Tobacco Control in Defending Legal Challenges to Tobacco Control Measures” (2019) 28(Suppl. 2) Tobacco Control S113.

71 Zhou et al, supra note 70.

72 See eg Philip Morris Norway AS v Ministry of Health and Care Services (Oslo District Court (Norway), No 10-041388TVI-OTIR/02, 14 September 2012); R v Mader’s Tobacco Store [2010] NSPC (Canada) 52.

73 See, eg, Uruguay – Labelling of Packaged Foods: Statement by Uruguay to the Committee on Technical Barriers to Trade 6 and 7 March 2019, G/TBT/W/614 (25 March 2019) paras 6–11.