The title of this book, Weaponising Evidence, weaves together the two ‘investigative lenses’Footnote 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.Footnote 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’.Footnote ³ Melillo explains that lawfare and evidence are entangled, the latter being ‘a central strategy’Footnote 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’.Footnote 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’.Footnote 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 ‘post-conclusion phase’, after 2003.Footnote ⁷ These two chapters shed light on ‘the first two battles of the international tobacco control lawfare’.Footnote ⁸ By contrast, the fourth chapter focuses on another kind of battle, namely on international disputes in the field of tobacco control. The concluding chapter, which is the shortest, is devoted to the ‘lessons learnt on lawfare and evidence’.Footnote ⁹

In terms of methodology, Melillo describes her study as ‘a multi-composite book that departs from traditional legal analysis to embrace the “empirical turn in international legal scholarship”’.Footnote ¹⁰ Chapters 2 and 3, in particular, constitute ‘a socio-legal analysis of the making and development of the FCTC from a historical perspective’.Footnote ¹¹ The author conducted this research based on negotiation documents and first-person accounts,Footnote ¹² adding her own observations under the heading ‘fieldnotes’.Footnote ¹³ As regards Chapter 4, it consists in ‘an analysis of international case law from a comparative perspective’.Footnote ¹⁴

Throughout the book, it becomes evident that Melillo’s study has implications that go well beyond the field of international tobacco control. One may for instance think of environmental (and especially climate) issues, which Naomi Oreskes and Erik M. Conway already analysed jointly with tobacco in their seminal book Merchants of Doubt.Footnote ¹⁵ In relation to both tobacco control and climate policy, the evidentiary strategy of regulatory-averse interest groups initially focused on denying the existence of a risk, before shifting to the dimension of risk management. While the author is careful to emphasize the specificities of tobacco control law compared to international environmental (and climate) law,Footnote ¹⁶ she explains that the FCTC regime draws from other fields of international law, including international environmental law.Footnote ¹⁷ One reason for this borrowing is that ‘both environmental and tobacco control are divisive and sensitive areas of regulation, with one of the main obstacles to their realisation lying in the economic interests of industries’.Footnote ¹⁸

This review essay examines three cross-cutting issues broached by the book in relation to the FCTC framework that are of particular interest from the perspective of international law-making: first, the influence of lobbyists and what the author refers to as ‘civil society organizations’ (CSOs) on the elaboration and implementation of the FCTC; second, the categorical exclusion of the tobacco industry from the FCTC framework, and how this exclusion affected the study’s design and methodology; and, finally, the geographical location of the WHO’s headquarters and its potential impact on the FCTC regime.

The first dimension that this review essay explores is the lobbying dimension. Indeed, lobbying (a term that this essay employs in a neutral way to designate the attempt by natural or legal persons without legal authority in the law-making process to influence those who possess such authority) and the strategic use of evidence go hand in hand: evidence (or ‘expertise’, as it is often called in the law-making context) is a prominent lever on which lobbyists rely to convince their interlocutors. Accordingly, the epistemic defence of lobbying – i.e., the claim that lobbyists and interest groups provide law-makers with crucial expertise and hence contribute to informed law-making – is one of the main arguments that lobbyists and law-makers put forward to explain why it is important for them to interact with each other.Footnote ¹⁹ Evidence was also used by the other side of the international tobacco control lawfare (i.e., by the WHO and public health advocates) as ‘a powerful weapon against the power of the industry, and the best way to empower states to resist their lobbying’.Footnote ²⁰ It is worth noting that the strategic reliance on evidence is not only typical of lobbying (and counter-lobbying): it also characterizes interpretation, including interpretation in international law. Indeed, like in a game,Footnote ²¹ interpretative methods are often used strategically to achieve a particular result. Evidence directly informs this interpretative game, as it is built into the various interpretive methods to show that they point in a specific direction.

As the chronological table that precedes the first chapter of the book makes clear, the ‘tobacco papers’, which were published in 1994–1998 and documented the tobacco industry’s ‘decades-long activity of lobbying against tobacco control measures’, marked a turning point in the history of international tobacco control.Footnote ²² The first concrete efforts within the WHO to elaborate an international treaty on tobacco control date back to this period. In 2000, an expert committee convened by the WHO’s Director-General published a reportFootnote ²³ that ‘contained not unexpected but nevertheless shocking findings: the industry had extensively and constantly lobbied to divert attention from tobacco control or to discredit the WHO’s actions’.Footnote ²⁴ Melillo explains that ‘the [tobacco] industry has used murky and aggressive lobbying strategies at all levels of regulation, from domestic jurisdictions to the European Union and the World Health Organization’, including with regard to the ‘implementation and elaboration of the FCTC’.Footnote ²⁵

While the author speaks of ‘unethical and aggressive efforts of the tobacco industry to oppose and delay the adoption of tobacco control policies’,Footnote ²⁶ she does not explicitly state what these lobbying strategies consisted in, nor whether they were illegal. While this aspect was likely omitted for reasons of scope, it is of utmost interest to lobbying law scholars. Building on the aforementioned expert committee report of 2000, Melissa Durkee (whose work is mentioned several times in Melillo’s studyFootnote ²⁷ ) has shown that the tobacco industry’s lobbying activities constituted a prime example of ‘astroturf activism’ due to its reliance on front groups.Footnote ²⁸ Another strategy of the tobacco industry has consisted in funding scientific research on tobacco and in challenging existing studies on the subject.Footnote ^29, Footnote ³⁰ Today, the regulation of both international and domestic lobbying remains patchy, though the WHO now takes an unusually strong – but controversial – stance on the issue of industry interference (infra). The expert committee report already contained several recommendations on ‘countering tobacco lobbying’.Footnote ³¹

This last expression leads us to our next point: in line with broader debates and reports about the issue, the book seems to use ‘lobbying’ as a pejorative term to describe the activities of the opponents of tobacco control regulation. By contrast, the activities of CSOsFootnote ³² are implicitly distinguished from these lobbying efforts and tend to be pictured in a more positive fashion. This dichotomy between lobbying and civil society involvement is not surprising: it is already reflected in the preamble of the FCTC, which distinguishes between ‘the special contribution of nongovernmental organizations and other members of civil society not affiliated with the tobacco industry … to tobacco control efforts nationally and internationally’, and ‘the need to be informed of activities of the tobacco industry that have a negative impact on tobacco control efforts’. A similar dichotomous approach also appears to have been adopted in other research on tobacco control and the FCTC framework.Footnote ³³ More generally, in the field of interest group studies, the term ‘lobbying’ is often avoided due to its negative connotation (among other reasons).Footnote ³⁴ In addition, tobacco lobbying is usually viewed in a particularly negative light: because of its addictiveFootnote ³⁵ and potentially lethal character, tobacco is considered the archetype of what some lobbying scholars have called a ‘harmful industry’, together with other industry sectors such as ‘alcohol, gambling, and ultraprocessed foods’.Footnote ³⁶

Arguably, any industry that seeks to extract profit from marketing a product or service that it knows to possess addictive (and, in the case of tobacco, lethal) or otherwise harmful qualities should be subjected to heightened scrutiny on the part of regulators. Yet, for law-makers, drawing the line between addictive v. non-addictive (and, a fortiori, harmful v. harmless) products and services may not always be straightforward. Tobacco may seem like a particularly obvious case, but what about sugar, opioids, or even social media platforms? Regulators will likely be influenced by other factors than the addictive and/or harmful properties of a given product or service (e.g., the degree and likelihood of harm that it causes). In this context, scientific evidence can be expected to play an important role – which brings us back to the strategic use of evidence as a tool of lawfare.

What remains unclear when reading the book is the nature of the relationship between lobbying, on the one hand, and the important contribution made by CSOs in the elaboration and implementation of the FCTC, on the other, especially given the difficulty of distinguishing between ‘good’ lobbying (or advocacy, as it is often called) v. ‘bad’ lobbying. As the author explains, ‘the growing expertise of civil society organizations has made them valued and influential actors’,Footnote ³⁷ including in the context of the FCTC regime, where they are ‘the most important source of expertise and authority’ and, accordingly, ‘the most influential actors’.Footnote ³⁸

One reason why the relationship between lobbying and the activities of CSOs is fuzzy is that the author does not provide a definition of the concept of CSO. However, she does offer examples of networks and initiatives, such as GLOBALink, ‘an online international network of experts created in the 1980s’, or ‘the experts that every few years convened at the World Conferences on Tobacco and Health’.Footnote ³⁹ In Chapter 3, she mentions the Framework Convention Alliance (FCA), now called the Global Alliance for Tobacco Control (GATC), as another example of CSO influence.Footnote ⁴⁰ As a matter of fact, scholars have described the FCA’s ‘direct lobbying efforts’ which, during the FCTC negotiations, consisted in ‘briefings, providing expertise for delegates, particularly those from developing countries, submission of amendments to texts, face-to-face meeting in the corridors, and distribution of position papers’.Footnote ⁴¹

Given that ‘civil society’ is a normativeFootnote ⁴² and essentially contested concept,Footnote ⁴³ its definition poses inherent difficulties. Some definitions exclude the economyFootnote ⁴⁴ (and, hence, tobacco corporations), but not all of them do.Footnote ⁴⁵ Moreover, one could argue that interest groups like trade associations, which are not profit-oriented as such, but defend the interests of their (profit-oriented) members, are part of civil society.Footnote ⁴⁶ If one takes the case of the UN Economic and Social Council (ECOSOC), NGOs may apply for observer status, as may trade associations, but not individual businesses.Footnote ⁴⁷ According to Durkee, ‘[i]t was not until the late 20^th century that commentators began to regard [business groups] separately from “civil society” organisations working for the public benefit’.Footnote ⁴⁸

The WHO’s Framework of Engagement with Non-State Actors (FENSA), which was adopted in 2016, distinguishes between four types of non-state actors (i.e., NGOs, private sector entities, philanthropic foundations, and academic institutionsFootnote ⁴⁹ ). As Melissa Durkee points out in her work on international lobbying law, such ‘categorical distinctions’ may be counterproductive by leading to untransparent lobbying and the infiltration of CSOs by corporate actors.Footnote ⁵⁰ As she explains (quoting from the aforementioned 2000 expert report), tobacco multinationals ‘transformed the International Tobacco Growers’ Association (ITGA) “from an underfunded and disorganized group of tobacco farmers into a highly effective lobbying organization” purporting to speak on behalf of developing world tobacco farmers’.Footnote ⁵¹ Because CSOs may have vested (including economic) interests, the distinction between CSOs and economic interest groups is not always clear-cut. Moreover, the former are often funded by the latter.Footnote ⁵² This is why categorizing some organizations as ‘public interest groups’ (as some political scientists doFootnote ⁵³ ) is tricky, especially if one views the public interest as a procedural concept, the content of which needs to be determined in an open and inclusive process. Accordingly, Durkee considers that the WHO’s attempt, through FENSA, to ‘distinguish between public-interest and private-sector groups in order to regulate each separately … is ill-advised and likely will not produce the intended results’.Footnote ⁵⁴ In light of the multifaceted – and potentially ambiguous – character of CSOs, future research could endeavour to establish a typologyFootnote ⁵⁵ of CSOs involved in the FCTC system and study the interactions between (and respective level of influence of) different CSOs.

FENSA has led to further criticism in more recent scholarship, which considers that this framework does not properly address the problem of conflicts of interest within the WHO, be it in generalFootnote ⁵⁶ or in the specific case of the tobacco industry.Footnote ⁵⁷ According to Berman, FENSA suffers from four main weaknesses, namely (i) the absence of effective enforcement, (ii) the WHO’s limited resources, (iii) the lack of attention given to domestic sources of influence, and (iv) the difficulty of finding the right balance between giving the WHO Secretariat too much v. not enough flexibility in managing FENSA.Footnote ⁵⁸ In relation to FENSA, one may also mention the launch of the WHO Foundation in May 2020, the purpose of which is to ‘increase funding available to WHO from non-state actors’, especially ‘private and commercial’ ones, while preserving the WHO’s institutional independence (which is also the objective of FENSA). Yet, in practice, things are more complicated. Scholars observe that ‘decision-making within the Foundation has become increasingly decoupled from the claimed norms and principles used to justify its creation’, especially because the Foundation prioritizes fundraising, and that the creation of this separate entity by the WHO constitutes a problematic strategy of ‘institutional depoliticisation’.Footnote ⁵⁹

The boundary between lobbying and CSOs’ contribution to the elaboration and implementation of the FCTC becomes even more blurred if one considers the evidentiary role played by CSOs in this context, and the fact that evidence, as Melillo emphasizes, is often used strategically. In Chapter 2, which pertains to the stage of the FCTC’s elaboration, Melillo explains that the WHO acted as ‘a catalyst of additional evidence’ establishing the need for greater tobacco control,Footnote ⁶⁰ including evidence provided by CSOs.Footnote ⁶¹ While she acknowledges, in line with existing scholarship, that CSOs engaged in lobbying in the context of the FCTC negotiations,Footnote ⁶² she emphasizes their ‘very strong scientific component’,Footnote ⁶³ which seems to strengthen the credibility of CSOs as evidence providers. Yet, as she recognizes herself, evidence is a double-edged sword, including when it is provided by CSOs: ‘[e]vidence, in fact, can be framed like any other form of human knowledge’.Footnote ⁶⁴ Interest groups, qua interest representatives, tend to present evidence in a way that supports these interests, and this also applies to CSOs. Of course, even scientific research is not immune from biases, though it is constrained by various institutional measures (including deontological norms) aiming to safeguard its open-ended, disinterested character.

Melillo eventually concludes that the epistemic and lobbying roles of CSOs cannot be neatly isolated from each other, except perhaps on an abstract, conceptual level: ‘[CSOs] were certainly expected to have a broad role in lobbying and pressuring’, but also to ‘have a technical “expert” role in sharing evidence’.Footnote ⁶⁵ Overall, this ambiguous role of CSOs would deserve to be acknowledged more prominently, from the very beginning of the book. For Melillo and other scholars on whose work she relies, this double role of CSOs is almost inevitable, since ‘when it comes to scientific issue areas like global health, the traditional divide between the epistemic community and the advocacy network does not stand’.Footnote ⁶⁶ This intertwining of expertise and advocacy could have been emphasized more in the book, not only with regard to CSOs, but also in relation to the tobacco industry, and would be worth exploring further in future work. It is reminiscent of the ‘scholactivism’ debate that has been resurfacing in recent years,Footnote ⁶⁷ a debate that shows that some entanglements are often viewed as more problematic than others.

The ambiguous role of CSOs as evidence providers also comes to the fore when Melillo discusses the Bloomberg Initiative to Reduce Tobacco Use, a philanthropic organization that ‘is helping cities and countries implement measures that are proven to reduce use and protect people from [tobacco] harm’.Footnote ⁶⁸ As Melillo explains, the Bloomberg Initiative has ‘significantly affected the outlook of the tobacco control network by deciding which organizations it does or does not support’.Footnote ⁶⁹ Importantly, it ‘has given substantial support to the WHO – so substantial, that [the WHO’s Tobacco Free Initiative (TFI)] has a project officer for the Bloomberg initiative clustered within it’; what is even more striking is that ‘in the face of persistently decreasing contributions from States, this is the new normal for the WHO’.Footnote ^70, Footnote ⁷¹ Thus, as Melillo shows, institutional vulnerabilities – e.g., the structural weakness of the FCTC Secretariat – are liable to increase the leverage that CSOs enjoy.Footnote ⁷² This illustrates the risks that institutional dependencies on specific organizations may create for an institution’s integrity or purpose (or, as Durkee puts it, for the institution’s ‘mission accountability’Footnote ⁷³ ), especially dependencies on organizations that have substantial financial resources to offer. Such threats to institutional integrity are a typical problem that can be observed in the context of lobbying.Footnote ⁷⁴ Currently, ‘about half of the WHO’s budget’ is funded by ‘non-state actors … with philanthropic foundations alone accounting for 17 per cent, and other international organizations and private entities contributing to the rest’.Footnote ⁷⁵ Besides creating institutional dependencies, such funding can also lead to inefficiencies, like duplication. The Bloomberg Initiative does not fund the FCTC; instead, together with the TFI, it has created a six-point policy package called MPOWER.Footnote ⁷⁶

In light of these caveats concerning CSOs’ evidentiary contribution, it seems all the more important to emphasize that while ‘[k]nowledge is arguably among the most important assets that civil society organisations can leverage in treaty-making’,Footnote ⁷⁷ CSOs provide other assets that are important from the perspective of democratic law-making, such as aggregating preferences or representing natural or legal persons that are affected by tobacco control measures. Given that the author’s focus lies on evidence, it is understandable that she does not examine these other dimensions in more depth (though she implicitly recognizes their existence and importanceFootnote ⁷⁸ ). Even if one chooses to remain within the epistemic (or evidentiary) frame, the distinction between what some scholars call policy information v. political information could be useful to acknowledge these nuances: while policy information provides information about substantive issues (which appears to be CSOs’ main contribution in the context of Melillo’s study), political information gives insight into public opinion (i.e., preferences, wishes, and perspectives).Footnote ⁷⁹ Whether CSOs provide not only policy information, but also political information, would be worth exploring in future research. Doing so is important since output legitimacy is but one dimension of legitimacy, besides input and throughput legitimacy.Footnote ⁸⁰

CSOs also feature prominently in Chapter 3, where Melillo analyses their ‘growing role … as knowledge actors’ in the FCTC’s implementation phase.Footnote ⁸¹ Several FCTC provisions acknowledge the importance of CSO participation.Footnote ⁸² The FCTC’s preamble highlights:

Another example is Article 1.7 FCTC, which declares that ‘[t]he participation of civil society is essential in achieving the objective of the Convention and its protocols’. Contrary to what these provisions might suggest, and as Melillo emphasizes, ‘the role of civil society organisations in the post-conclusion phase of the FCTC has not been limited to implementation’: CSOs ‘have arguably become the most relevant actors in the elaboration of the FCTC and specifically in the making of the guidelines’.Footnote ⁸³ The Guidelines for implementation pertaining to Article 5.3 FCTC (infra) are particularly noteworthy in the context of this review essay, as they aim to prevent interference by the tobacco industry.

This brings us to the second dimension that this review essay aims to discuss, namely the exclusion of the tobacco industry from the FCTC framework. This exclusion has been basedFootnote ⁸⁴ on Article 5.3 FCTC and the accompanying guidelinesFootnote ⁸⁵ (on the content of Article 5.3 FCTC and these guidelines, see infra) and can be viewed as a direct consequence of the industry’s lobbying tactics. As Melillo notes, the tobacco industry’s aggressiveness has ‘effectively shaped the attitude that the WHO and public health advocates take vis-à-vis the industry’,Footnote ⁸⁶ and ‘the outlook of the FCTC regime has been significantly influenced by the constant threatening presence of the tobacco industry’.Footnote ⁸⁷ As we will see, this exclusion also affects the work of researchers in the field of international tobacco control.

The author specifies that ‘[t]he tobacco industry was initially allowed to participate in the FCTC discussions’,Footnote ⁸⁸ but that it was eventually ‘prohibited from participating in the [International Negotiating Body]’ due to ‘risks of “interferences” during the negotiations’.Footnote ⁸⁹ This exclusion became even more pronounced in the FCTC’s post-conclusion phase.Footnote ⁹⁰ Today, ‘[t]he tobacco industry is the only industry, other than the arms industry, that is not permitted to engage with the WHO’:Footnote ⁹¹ the WHO’s FENSA provides that the organization ‘does not engage with the tobacco industry or non-State actors that work to further the interests of the tobacco industry’.Footnote ⁹² Moreover, the preamble of the FCTC emphasizes ‘the need to be alert to any efforts by the tobacco industry to undermine or subvert tobacco control efforts and the need to be informed of activities of the tobacco industry that have a negative impact on tobacco control efforts’. Importantly, Article 5.3 FCTC states that ‘[i]n setting and implementing their public health policies with respect to tobacco control, Parties shall act to protect these policies from commercial and other vested interests of the tobacco industry in accordance with national law’.

Melillo writes that the Conference of the Parties (COP) ‘used a good degree of creativity’ to maintain and reinforce this exclusion, inter alia by adopting the Guidelines to Article 5.3 FCTC.Footnote ⁹³ These guidelines were ‘seen as the natural continuation of the work that could not be completed during the FCTC negotiations because of interference by the tobacco industry’;Footnote ⁹⁴ ‘[a]bsent the US and the other tobacco industry’s proxy states that have not ratified the FCTC, the COP could now work with few(er) obstacles’.Footnote ⁹⁵ Strikingly, the Guidelines to Article 5.3 FCTC declare that ‘[t]here is a fundamental and irreconcilable conflict between the tobacco industry’s interests and public health policy interests’.Footnote ⁹⁶ In other words, they contain an a priori definition of the public interest (which categorically excludes tobacco corporations) instead of approaching it as a procedural concept, the content of which needs to be ascertained in an open-ended process by taking all affected interests – and, importantly, all the available evidence – into account. Among other measures, the guidelines recommend ‘limit[ing] interactions with the tobacco industry and ensur[ing] the transparency of those interactions that occur’, as well as ‘[a]void[ing] conflicts of interest for government officials and employees’.Footnote ⁹⁷

Besides adopting these guidelines, the COP also tried to address ‘interference in governmental delegations’, which ‘have been infiltrated by the tobacco industry from the beginning of the FCTC negotiations’.Footnote ⁹⁸ Proposals aiming to disclose or even prohibit conflicts of interests within delegations did not garner enough support within the COP,Footnote ⁹⁹ which eventually decided that ‘only members of civil society organizations, the public, and members of international organisations [should] submit declarations of interest’.Footnote ¹⁰⁰ This requirement acknowledges the risk for CSOs to be subject to conflicts of interest. By contrast, the COP decided that FCTC parties should merely certify that their representatives had been chosen in line with Article 5.3 FCTC and recommendations 4.9 and 8.3 of the Guidelines.Footnote ¹⁰¹ Still, as Melillo points out, ‘adding any criteria to the sovereign act of designating one’s diplomatic representatives is an unprecedented act in international law’.Footnote ¹⁰² Yet another measure that reinforces the tobacco industry’s exclusion is ‘the decision to exclude members of the public from COP meetings’ to avoid further infiltration by the tobacco industry.Footnote ¹⁰³

There is no doubt that tobacco companies’ lobbying tactics have been particularly problematic from a public health perspective. Still, excluding the tobacco industry is a radical approach that seems problematic from the perspective of democratic law-making and that certainly raises ‘normative questions on what roles business actors should have in international law’.Footnote ¹⁰⁴ One may hence question whether it should serve as ‘a model for other regimes’,Footnote ¹⁰⁵ a question that Melillo examines towards the end of her study. Another question is whether this exclusion ‘is truly fulfilling its own purpose’ or whether it is counterproductive; according to Melillo, ‘a critical assessment of this question has not been undertaken’.Footnote ¹⁰⁶ Melillo offers three valuable thoughts on thisFootnote ¹⁰⁷ which, given the importance of these questions, would deserve to be mentioned even more prominently in her study (and the same applies to the normative questions that she mentions, and which appear relatively late in the book).

First, as Melillo explains, because different influence venues are linked, restricting access to one venue is likely to affect the others.Footnote ¹⁰⁸ In line with the hydraulics metaphor that is used in relation to campaign finance,Footnote ¹⁰⁹ one could argue that lobbying, like water, has to go somewhere. Because lobbying is likely to happen anyway, if not in the particular venue to which access is restricted, the different venues may as well remain accessible. Second, and relatedly, Melillo notes that ‘the exclusion does not prevent interference’, though, as already mentioned in relation to the book’s ambiguity about the legality of tobacco lobbying, further clarity is needed about what ‘interference’ consists in, i.e., at which point lobbying becomes problematic or even illegal. In any case, given the pervasiveness of lobbying, one may wonder ‘whether direct access could at least improve transparency’.Footnote ¹¹⁰ Third, Melillo points out that ‘excluding the tobacco industry from international fora hardly affects the capacity of national governments to exclude it from their own regulatory space – which is exactly where the most important public health regulations should be adopted’: as she emphasizes, ‘the influence of the tobacco industry at the national level is still very strong’, but ‘the model of exclusion of the tobacco industry implemented in the FCTC regime appears simply unable to influence domestic politics’.Footnote ¹¹¹ This last point shows the importance of shedding light on domestic law-making and its potential permeability to tobacco industry interests (infra).

Melillo acknowledges that the WHO’s reluctance to engage is based on sound and weighty reasons.Footnote ¹¹² However, from a democratic theory perspective, one could argue that all those affected by a given legal norm should have the possibility to participate in its elaboration.Footnote ¹¹³ Including the tobacco industry is also indispensable to prevent the formation of ‘echo chambers’Footnote ¹¹⁴ in this field. For instance, Melillo writes that ‘the fear of interference by the tobacco industry makes the tobacco control network frame the evidence they have as incontrovertible’,Footnote ¹¹⁵ even if it is ‘fundamentally imperfect and incomplete’.Footnote ¹¹⁶

What is also noteworthy is that the exclusion of the tobacco industry has further boosted the position of CSOs: ‘as far as the FCTC regime is concerned, the marginalisation of the enemy par excellence has significantly reduced opposition and increased the ability of civil society organisations to influence the process’.Footnote ¹¹⁷ Due to their growing involvement, these CSOs have acquired substantial ‘institutional knowledge’, including compared to governments,Footnote ¹¹⁸ which has further strengthened their place in the FCTC framework.Footnote ¹¹⁹ CSOs are ‘participating in their own right as observers to the COPs’, ‘joining the Parties’ delegations’, and ‘supporting the elaboration of the guidelines’.Footnote ¹²⁰ Yet, as mentioned, the participation of CSOs is ambivalent. The requirement for CSOs to submit declarations of interest (supra) is a positive development, but it does not solve the problem of potential conflicts of interest altogether. For example, with regard to delegations, Melillo notes that ‘[a]t COP8, [she] counted at least seven people who simultaneously held a double badge, i.e. a government and a civil society one’.Footnote ¹²¹ While one could argue that this ‘shows that governments hold the expertise of civil society organisations in high regard’,Footnote ¹²² such double roles are vulnerable to conflicts of interest. Similarly, when Melillo mentions that CSOs signalled their willingness to help in elaboration of guidelines due to their expertise and that ‘[t]he offer was gladly accepted’, which arguably shows that ‘civil society representatives are invited by reason of, and according to, their expertise’,Footnote ¹²³ it seems important to also recall that CSO participation rarely consists in only providing information; far more common is for it to also influence the process.Footnote ¹²⁴

Another difficulty that should be of particular concern to international legal scholars is that the WHO’s categorical, exclusionary approach contributes to a high degree of ‘polarisation’Footnote ¹²⁵ not only in the field of international tobacco control in general but also, consequently, in research on international tobacco control. Melillo talks about the use of evidence by ‘two opposing factions’,Footnote ¹²⁶ which may seem schematic, but reflects current trends within this area of international law. Importantly, this polarization creates significant constraints on researchers working in the field of tobacco control. Mair and Kierans talk about a ‘field organized around a fundamental opposition, that between “tobacco industry research” and “tobacco control research”’.Footnote ¹²⁷ In the methodology section, Melillo explains that she ‘decided not to interview anyone from the tobacco industry’, as doing so ‘would have meant becoming a possible target of their lobbying activities and would have risked compromising [her] objective and apparent impartiality’; she made this decision ‘after several incidents where [her] impartiality ha[d] been questioned by [her] interviewees’.Footnote ¹²⁸ At the same time, she acknowledges the limitations of ‘consciously [choosing] to speak to only one side of the actors involved in international lawfare’, which, ‘[n]aturally … represents only a partial view of the history of the FCTC’.Footnote ¹²⁹

What should one think of this methodological choice? On the one hand, this partiality simply reflects the fact that the tobacco industry is excluded from the FCTC framework. One could also argue that a research project is different from judicial or administrative proceedings, where both parties have the right to be heard. On the other hand, given that the author questions the tobacco industry’s one-sided exclusion from the FCTC framework in the last part of her book (supra), she could have reached the conclusion that this exclusion should not affect her research methodology, including when it comes to interviews. Given the open-ended nature of scientific research and the empirical approach pursued in the book, the reader could hence find this selective outlook unwarranted.

Yet, from a feasibility perspective, the fact that interviewing one side would have threatened the possibility of speaking with the other – which is the problem Melillo was confronted with – provides a powerful argument in support of selectivity. Moreover, the author faced significant obstacles in her research, as she acknowledges openly. Some of them relate to the confidentiality of the WHO’s tobacco control documents.Footnote ¹³⁰ More fundamentally, she encountered reluctance on the part of her intervieweesFootnote ¹³¹ and was ‘amazed to see how similar most of the views of the people [she] interviewed were’ and how ‘[s]ome opinions and statements were repeated’ almost verbatim by different interviewees.Footnote ¹³² These anecdotes and examples show that polarization in international law is problematic not only for its own sake, but also because it can affect research about international law. It may drive researchers away from certain areas deemed too politicized and hence too risky to investigate, despite the important and pressing questions that these areas may raise. It is Melillo’s great merit to have held on to her endeavour and to candidly alert us about these trends. In light of the constraints she was confronted with, the fact that, ‘[i]n almost 20 years of life … no legal scholar has systematically analyzed the history of the FCTC’Footnote ¹³³ is astonishing, but probably no coincidence.

A third and last dimension that this review essay wishes to highlight and that, for reasons of scope, is not explored in detail in the book relates to the geographical location of the WHO’s headquarters. While the pre-negotiation meetings in 1998 and 1999 were held outside Switzerland,Footnote ¹³⁴ the WHO’s headquarters are based in Geneva, which is where the elaboration of the FCTC took place. Besides acting as a host state for the WHO, Switzerland is the seat of several major tobacco multinationals. It has been categorized as the country with the second-weakest tobacco regulation in Europe after Bosnia and Herzegovina,Footnote ¹³⁵ and with the second-highest influence of the tobacco industry worldwide after the Dominican Republic.Footnote ¹³⁶ Besides being deemed one of the countries with the strongest tobacco lobbies,Footnote ¹³⁷ Switzerland is also among the few states in Europe that have not ratified the FCTC (together with Monaco and Liechtenstein).

The only time Switzerland is explicitly mentioned in the study is in relation to the Philip Morris v. Uruguay ICSID arbitration case of 2010. As the author notes, Philip Morris based its arbitration request on the Bilateral Investment Treaty (BIT) between Uruguay and Switzerland.Footnote ¹³⁸ Indeed, under the terms of the BIT, it can be considered an investor of Switzerland, as it is a ‘legal entit[y] … constituted or otherwise duly organised’ under Swiss law and ‘having [its] seat in the territory’ of Switzerland (Article 1(1)(b) BIT).Footnote ¹³⁹ Still, when analysing the negotiation of the FCTC, Melillo talks about ‘recalcitrant States’Footnote ¹⁴⁰ and ‘countries that were likely to oppose the FCTC or had shown lukewarm support’.Footnote ¹⁴¹ She also refers to the ‘tobacco industry’s proxy states that have not ratified the FCTC’.Footnote ¹⁴² In some rare instances, she provides specific examples, e.g., when noting that ‘one of the most persuasive reasons for having a more independent FCTC Secretariat was to reduce interference by the tobacco industry, and specifically by WHO Members that are not party to the FCTC (like the US)’.Footnote ¹⁴³

Switzerland is a WHO member that is not a party to the FCTC. It signed the Convention in 2004, but has never ratified it, which has been criticized by some WHO officialsFootnote ¹⁴⁴ and CSOs.Footnote ¹⁴⁵ Moreover, as mentioned, Switzerland is deemed receptive to the interests of the tobacco industry. The case of Switzerland raises the question of the role of states (including states that are not parties to the FCTC) as potential proxies for tobacco industry lobbying. As Melillo explains, ‘the tobacco industry and the States that represent its interests have been increasingly excluded from the FCTC regime’.Footnote ¹⁴⁶ In this context, one dimension that would need to be clarified pertains to the criteria that should be relevant to determine whether a given state has become a proxy for this influence. At which point does the boundary between public and private law-making begin to erode in the field of tobacco control? As far as Switzerland is concerned, the fact that the WHO’s headquarters are located on its territory makes this question all the more relevant. While the mere existence of major tobacco companies on a state’s territory is unlikely to be a sufficient criterion for proxy influence, the importance of the tobacco industry for its economy already provides a more reliable – if not decisive – indicator, as does a state’s unwillingness to ratify the FCTC. Another important indicator is the lack of robust lobbying regulation and related mechanisms to disclose, or even limit, the influence of tobacco industry lobbying on domestic law-making processes.

For reasons of scope, Melillo had to leave out ‘interactions between domestic and international law in tobacco control’,Footnote ¹⁴⁷ but she encourages researchers to tackle this issue and others. As she points out, ‘[a]lthough the influence of the tobacco industry in policymaking processes is far from over, it is now considerably focused on the domestic level’Footnote ¹⁴⁸ and on international litigation (which is analysed in Chapter 4). In this context, the role of Switzerland as the host state of the WHO, a non-party to the FCTC, and a magnet for the tobacco industry, would deserve to be clarified, be it only to dispel suspicions of a potential permeability to tobacco interests,Footnote ¹⁴⁹ but also, more generally, to clarify the corresponding duties of states in the context of domestic and internationalFootnote ¹⁵⁰ law-making, especially in the field of tobacco control. Recent political science scholarship has qualified international organizations’ headquarters – including Geneva – as ‘ecosystems’Footnote ¹⁵¹ to express the idea that international organizations interact with, and are affected by, their broader environment. This environment includes the city in which international organizations are located, but also the broader ‘political national context’Footnote ¹⁵² in which they are embedded. The relationship between IOs and their host state would deserve further study, both in this context and in others.

To conclude, Melillo has succeeded at writing a real page-turner on the international law of tobacco control. The book is well researched, concise, and captivating. It builds on, contributes to, and stimulates thinking on, several areas of international law, including international lobbying law, the place of NGOs, experts, corporations, and states in international law-making, and the law of international organizations. While the book inevitably leaves some questions unanswered, it can be sure to be of interest to a broad and diverse readership, and to have sown the seeds for future studies on these and related topics.