By Marie Elske Gispen, University of Groningen, m.e.c.gispen@rug.nl

Recently, three institutions in Rotterdam jointly wrote a letter to the city’s mayor to ask the municipality to adopt a smoking ban for the streets that connect their premises via municipal regulation.[1] The parties – the city’s main university hospital, university of applied sciences, and one of the city’s secondary schools – are all located next to or near to each other. In order to protect their students, staff, patients, and visitors, they want to create a smoke-free zone in and immediately around their premises.[2] While the institutions can adopt smoke-free policies on their own premises, they prefer a fully smoke-free zone because they do not want to send smokers who violate their internal smoking policies to neighbouring institutions who likewise try to enforce their own smoking ban.[3]

The example of Rotterdam is not unique in the Netherlands. Groningen and Amstelveen are also considering expanding public smoking bans through municipal regulation.[4] All these examples stir debates about tobacco control in the Netherlands and raise different legal questions. From a national law perspective, the question is mainly whether domestic law allows municipalities to expand public smoking bans by municipal regulatory measures.[5] The question from an international law perspective, on the other hand, is whether or not the Dutch government, instead of the municipalities, must consider such policies. This blog-post focuses specifically on the extent to which governments are required to expand smoking bans based on international law.

Within international law, the Framework Convention on Tobacco Control (FCTC) that was adopted in 2003 is the leading international instrument that includes legally binding obligations for States Parties to regulate the supply and demand of tobacco products.[6] The Netherlands ratified the FCTC on 27 June 2005. Since then, the Dutch government is bound to give effect to all obligations included in the treaty.

Based on Article 8 FCTC, States Parties should adopt smoking bans to protect people against exposure to tobacco smoke. The provision reflects an open-ended obligation with a minimum requirement. Article 8(2) FCTC requires that States Parties ensure smoke free workspaces, public transport, and indoor public spaces. In addition, if appropriate, they must consider adopting smoking bans in other public spaces. A plain reading of the text of the FCTC thus shows that the Dutch government, in principle, must consider expanding smoking bans to other public spaces, including roads. Yet, the question is when this can be considered appropriate. The legal text of the FCTC is not clear about this.

Article 23 FCTC mandates the Conference of States Parties (COP) to interpret the scope of the FCTC and monitor its implementation across States Parties. To this end, the COP has adopted a range of guidelines for implementation in which it also gives further meaning to Article 8 of the FCTC. Dutch case law on the FCTC shows that the legal status of these guidelines in Dutch law may be ambiguous.[7] Nevertheless, from an international law perspective, one can argue that they are strictly speaking not legally binding (because they are not part of the legal text of the FCTC) but they are authoritative in the interpretation of the FCTC.

In its guidelines, the COP notes that States Parties to the FCTC should adopt a broad definition of the term ‘public space’ in their domestic jurisdictions. This definition, according to the COP, ‘should cover all places accessible to the general public or places for collective use, regardless of ownership or right to access’.[8] There is no doubt that streets fall within this definition. The COP continues to stress that Article 8 FCTC reflects a continuing obligation ‘to provide universal protection’ against exposure to tobacco smoke. They emphasise in this context that the scope of Article 8 FCTC extends to other public spaces, including outdoor and quasi-outdoor public spaces.[9] In this context, the COP specifically holds that:

In identifying those outdoor and quasi-outdoor public places where legislation is appropriate, Parties should consider the evidence as to the possible health hazards in various settings and should act to adopt the most effective protection against exposure wherever the evidence shows that a hazard exists.[10]

In other words, the States Parties themselves have decided in the COP that evidence about health hazards is leading in the interpretation of Article 8 FCTC, and that States Parties should adopt effective policies accordingly. This reference to evidence, however, should not be understood as evidence about the harmfulness of exposure to tobacco smoke per se. Article 8(1) FCTC states clearly that by ratifying the FCTC, ‘Parties recognize that scientific evidence has unequivocally established that exposure to tobacco smoke causes death, disease and disability’.[11] Indeed, what the COP says is that if exposure to tobacco smoke in public streets is in fact hazardous, then effective policies should be adopted. The COP does not specify what it means by ‘hazardous’, but in the spirit of the guidelines for implementation, a broad interpretation seems fitting. In addition, the effectiveness of tobacco control policies appears to be an important factor in the COP’s efforts to interpret the scope of Article 8 FCTC. Research shows that tobacco control policies, including smoking bans, have positive effects on child health, for instance.[12] Such an analysis that underpins the effectiveness of a ban is thus crucial in interpreting and implementing the FCTC in the domestic legal order.

In conclusion, one could argue that international law holds potential for expanding smoking bans, also in the Netherlands. Indeed, governments have a clear obligation to consider and, where appropriate, expand smoking bans to public spaces. If indeed expanding smoking bans can be regulated by municipal regulation in the Netherlands, this appears compatible with international law. Yet, these local examples should alert the Dutch government that it must consider such policies in light of its obligations under international law, instead of leaving this to municipalities only.

This preliminary overview is part of a joint analysis presently carried out by health scientists from the Erasmus MC Rotterdam and the Global Health Law Groningen Research Centre.

Marie Elske works as a postdoctoral research on three-year research project on children’s rights and tobacco control that is financed by the Dutch Cancer Society. The funder is not involved in any stage of the research. No conflict of interest reported.

[1] De rookvrije straat verovert Nederland, Telegraaf 3 August 2018; Nederlandse steden maken zich klaar voor rookverboden op straat, NOS 3 August 2018.

[2] De rookvrije straat verovert Nederland, Telegraaf 3 August 2018; Nederlandse steden maken zich klaar voor rookverboden op straat, NOS 3 August 2018.

[3] De rookvrije straat verovert Nederland, Telegraaf 3 August 2018.

[4] Nederlandse steden maken zich klaar voor rookverboden op straat, NOS 3 August 2018.

[5] Verzoek om rookvrije straten Rotterdam, NRC, 3 August 2018; See also Juridische notitie ‘de mogelijkheden voor rookvrije openbare ruimtes’, Mei 2018.

[6] Framework Convention on Tobacco Control (adopted 21 May 2003, entered into force 27 February 2005) 2302 UNTS 166.

[7] See 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) Brill Open Law 1.

[8] COP, Guidelines for Implementation of Article 8 FCTC, par 18.

[9] COP, Guidelines for Implementation of Article 8 FCTC, par 24.

[10] COP, Guidelines for Implementation of Article 8 FCTC, par 27.

[11] Article 8(1) FCTC.

[12] JV Been et al, ‘Effect of smoke-free legislation on perinatal and child health: a systematic review and meta-analysis’ (2014) 383 Lancet 1549.