Written by Aikaterini Tsampi, Assistant Professor of Public International Law, Department of Transboundary Legal Studies, Faculty of Law, University of Groningen Aletta Jacobs School of Public Health Fellow, a.tsampi@rug.nl

‘Won't you come see about me?’: The ESC system as a system worth exploring on tobacco

The literature on tobacco control and human rights has evolved through time to pertinently demonstrate how the international human rights law machinery is a potent ally in the fight for tobacco control. The Council of Europe (CoE) (Revised) European Social Charter (ESC) is one of the instruments of this machinery that has attracted so far the interest of the scholarly research in the context of the rights of the child. This does not come as a surprise. The ESC, commonly described as the Social Constitution of Europe, guarantees fundamental social and economic rights, including the right to health, and lays special emphasis on the protection of vulnerable persons such as children. The relevance of the ESC system for tobacco control does not exclusively pertain to children though. The European Committee of Social Rights (ECSR), which monitors the implementation of the ESC, has made a number of crucial observations on tobacco control that cover a large number of issues.

It should be made clear from the outset that the ECSR observations on tobacco control are included in its Conclusions in the context of the ESC reporting procedure based on the State reports it periodically assesses. No collective complaint was ever brought before the ECSR to give this human rights body the opportunity to address tobacco control through the lens of a claim submitted by a social partner or non-governmental organisation (NGO).

Notwithstanding the absence of a collective complaint on the matter, the Conclusions of the ECSR are telling of its decisive stance on combatting tobacco to the extent that it hinders the enjoyment of the rights enshrined in the ESC, predominantly in Articles 7 (the right of children and young persons to protection) and 11 (the right to protection of health).

‘Tell me your troubles and doubts’: Mapping the ESCR Conclusions on tobacco

Tobacco (along with alcohol and drugs) constitutes one of the seven thematic indicators assessed by the ECSR in its Conclusions on the right to protection to health. The ECSR stresses the importance of measures against smoking in meeting the requirements of Article 11 of the Charter (e.g. https://hudoc.esc.coe.int/eng?i=XV-2/def/AUT/11/3/EN) XV-2/def/AUT/11/3/EN. Just like under every general thematic indicator, qualitative and quantitative indicators are employed with respect to tobacco to guide the ESCR in its findings. The ESCR uses general statistics – WHO statistics too – to delineate smoking as one of the most important health problems in Europe. It notes in particular, ‘that smoking, a major cause of avoidable death in developed countries (in Europe 30% of deaths from cancer are attributable to smoking), is associated with a wide range of diseases (cardiac and circulatory diseases, cancers, pulmonary diseases etc.). Smoking kills one adult in ten throughout the world. WHO forecasts an increase to up to one in every six deaths by 2030, which is more than the figure for any other cause of death’ (e.g. XV-2/def/AUT/11/3/EN). Statistics, on tobacco consumption in particular, are also important for the ECSR in assessing the effectiveness of the measures adopted by every State to address tobacco use (e.g. https://hudoc.esc.coe.int/eng#{"fulltext":["(smoke%20OR%20,%20%20OR%20smoking%20OR%20,%20%20OR%20cigarette%20OR%20,%20%20OR%20tobacco)"],"sort":["ESCCharterIdOrder%20Ascending,ESCArticleOrder%20Ascending"],"ESCDcLanguage":["ENG"],"ESCStateParty":["MLT"],"ESCDcIdentifier":["XVII-2/def/MLT/11/3/EN"]}) XVII-2/def/MLT/11/3/EN. The adoption of legislation is not efficient on its own, unless de facto compliance is indeed proven (https://hudoc.esc.coe.int/eng#{"fulltext":["(smoke%20OR%20,%20%20OR%20smoking%20OR%20,%20%20OR%20cigarette%20OR%20,%20%20OR%20tobacco)"],"sort":["ESCCharterIdOrder%20Ascending,ESCArticleOrder%20Ascending"],"ESCDcLanguage":["ENG"],"ESCStateParty":["ISL"],"ESCDcIdentifier":["XV-2/def/ISL/11/3/EN"]}) XV-2/def/ISL/11/3/EN. Depending on the circumstances, the lack of information on the part of the State under review might allow the ESCR to conclude that the adoption of adequate measures to prevent smoking has not been established (e.g. https://hudoc.esc.coe.int/eng#{"fulltext":["(smoke%20OR%20,%20%20OR%20smoking%20OR%20,%20%20OR%20cigarette%20OR%20,%20%20OR%20tobacco)"],"sort":["ESCStatePartyOrder%20Ascending"],"ESCDcLanguage":["ENG"],"ESCStateParty":["ALB"],"ESCDcIdentifier":["2013/def/ALB/11/3/EN"]}) 2013/def/ALB/11/3/EN).

The measures recommended by the ECSR for the prevention of smoking are of interesting variability. The Committee points out that ‘to be effective, any prevention policy must restrict the supply of tobacco through controls on production, distribution, advertising and pricing’ (e.g. https://hudoc.esc.coe.int/eng?i=2017/def/MDA/11/3/EN) 2017/def/MDA/11/3/EN; (https://hudoc.esc.coe.int/eng#{"fulltext":["(smoke%20OR%20,%20%20OR%20smoking%20OR%20,%20%20OR%20cigarette%20OR%20,%20%20OR%20tobacco)"],"sort":["ESCCharterIdOrder%20Ascending,ESCArticleOrder%20Ascending"],"ESCDcLanguage":["ENG"],"ESCStateParty":["MLT"],"ESCDcIdentifier":["XVII-2/def/MLT/11/3/EN"]}) XVII-2/def/MLT/11/3/EN. Advertising on posters and in the press must be banned too, along with smoking in public spaces altogether (e.g. https://hudoc.esc.coe.int/eng?i=XV-2/def/GRC/11/3/EN) XV-2/def/GRC/11/3/EN. With respect to young persons in particular, the ESCR suggests the banning of the sale of tobacco (e.g. https://hudoc.esc.coe.int/eng#{"fulltext":["(smoke OR , OR smoking OR , OR cigarette OR , OR tobacco)"],"sort":["ESCCharterIdOrder Ascending,ESCArticleOrder Ascending"],"ESCDcLanguage":["ENG"],"ESCStateParty":["PRT"],"ESCDcIdentifier":["XVII-2/def/PRT/11/2/EN"]}) XVII-2/def/PRT/11/2/EN. This is not surprising, given that the ESCR regards smoking one of the dangers against which children and young people should be protected also in the context of Article 7 ESC (e.g. https://hudoc.esc.coe.int/eng#{%22fulltext%22:[%22XIII-2/def/BEL/7/10/EN%22],%22sort%22:[%22ESCPublicationDate%20Descending%22],%22ESCDcLanguage%22:[%22ENG%22],%22ESCDcType%22:[%22FOND%22,%22Conclusion%22,%22Ob%22],%22ESCDcIdentifier%22:[%22XIII-2/def/BEL/7/10/EN%22]}) XIII-2/def/BEL/7/10/EN.  Under Article 11(2) ESC (to provide advisory and educational facilities for the promotion of health and the
encouragement of individual responsibility in matters of health), the ESCR also requires prevention of smoking being part of health education in schools. The ESCR further specialises this requirement by suggesting that health education on prevention of smoking should be provided throughout the entire period of schooling as part of school curricula (e.g. https://hudoc.esc.coe.int/eng#{"fulltext":["(smoke%20OR%20,%20%20OR%20smoking%20OR%20,%20%20OR%20cigarette%20OR%20,%20%20OR%20tobacco)"],"sort":["ESCStatePartyOrder%20Ascending"],"ESCDcLanguage":["ENG"],"ESCStateParty":["BEL"],"ESCDcIdentifier":["XV-2/def/BEL/11/2/EN"]}) XV-2/def/BEL/11/2/EN. It also inquires the involvement and training of teachers along with any support from outside (e.g. https://hudoc.esc.coe.int/eng#{"fulltext":["(smoke%20OR%20,%20%20OR%20smoking%20OR%20,%20%20OR%20cigarette%20OR%20,%20%20OR%20tobacco)"],"sort":["ESCCharterIdOrder%20Ascending,ESCArticleOrder%20Ascending"],"ESCDcLanguage":["ENG"],"ESCStateParty":["AUT"],"ESCDcIdentifier":["XV-2/def/AUT/11/2/EN"]}) XV-2/def/AUT/11/2/EN.

School health education on smoking is not the only measure envisaged by the ESCR for the fulfilment of the requirements of Article 11(2) ESC. A public health education policy must be also implemented in favour of the general population and population groups affected by specific problems (e.g. https://hudoc.esc.coe.int/eng#{"fulltext":["(smoke OR , OR smoking OR , OR cigarette OR , OR tobacco)"],"sort":["ESCCharterIdOrder Ascending,ESCArticleOrder Ascending"],"ESCDcLanguage":["ENG"],"ESCStateParty":["SRB"],"ESCDcIdentifier":["2017/def/SRB/11/2/EN"]}) 2017/def/SRB/11/2/EN. Informing the public of the damaging effect of smoking particularly through awareness-raising campaigns is also one of the measures envisaged under Article 11(2) ESC (e.g. https://hudoc.esc.coe.int/eng#{"fulltext":["(smoke%20OR%20,%20%20OR%20smoking%20OR%20,%20%20OR%20cigarette%20OR%20,%20%20OR%20tobacco)"],"sort":["ESCStatePartyOrder%20Ascending"],"ESCDcLanguage":["ENG"],"ESCStateParty":["ALB"],"ESCDcIdentifier":["2007/def/ALB/11/2/EN"]}) 2007/def/ALB/11/2/EN. The ESCR specifies that the ‘precise extent of these activities may vary according to the nature of the public health problems in the countries concerned’(e.g. https://hudoc.esc.coe.int/eng#{"fulltext":["(smoke%20OR%20,%20%20OR%20smoking%20OR%20,%20%20OR%20cigarette%20OR%20,%20%20OR%20tobacco)"],"sort":["ESCStatePartyOrder%20Ascending"],"ESCDcLanguage":["ENG"],"ESCStateParty":["ALB"],"ESCDcIdentifier":["2007/def/ALB/11/2/EN"]}) 2007/def/ALB/11/2/EN, while at the same time it observes their geographical distribution within a State so as no discrepancies occur between urban and rural areas (e.g. https://hudoc.esc.coe.int/eng#{"fulltext":["(smoke%20OR%20,%20%20OR%20smoking%20OR%20,%20%20OR%20cigarette%20OR%20,%20%20OR%20tobacco)"],"sort":["ESCCharterIdOrder%20Ascending,ESCArticleOrder%20Ascending"],"ESCDcLanguage":["ENG"],"ESCStateParty":["BGR"],"ESCDcIdentifier":["2005/def/BGR/11/2/EN"]}) 2005/def/BGR/11/2/EN.

‘ It's my feeling we'll win in the end ’: A system with promising potential

While the present post cannot exhaust the discussion on the pertinence of the aforementioned ESCR observations, some points are worth highlighting in this respect:

1. The stance of the ESCR on tobacco control echoes, on many accounts, many of the standards set by the WHO Framework Convention on Tobacco Control (FCTC). This is particularly significant as the FCTC is currently the most specialised international instrument on tobacco control and represents a paradigm shift in developing a regulatory strategy to address tobacco by asserting the importance of both demand reduction strategies and supply issues. What is even more interesting to note is that a number of the observations made by the ESCR occurred even before the adoption of the FCTC in 2003.

Certainly, it should not go unnoticed that the ECSR is diachronically following the evolution of the WHO standards with respect to tobacco control. Prior to the adoption of the FCTC the ESCR was noting the ‘“Health for all” strategy, [under which] the WHO has set European states the objective of increasing the proportion of non-smokers in the population up to at least 80% and protecting non-smokers against involuntary exposure to tobacco smoke’ (https://hudoc.esc.coe.int/eng#{"fulltext":["(smoke%20OR%20,%20%20OR%20smoking%20OR%20,%20%20OR%20cigarette%20OR%20,%20%20OR%20tobacco)"],"sort":["ESCStatePartyOrder%20Ascending"],"ESCDcLanguage":["ENG"],"ESCStateParty":["BEL"],"ESCDcIdentifier":["XV-2/def/BEL/11/3/EN"]}) XV-2/def/BEL/11/3/EN. The ECSR was simultaneously acknowledging that ‘a convention on tobacco control is being drawn up under the aegis of the WHO’ (https://hudoc.esc.coe.int/eng#{"fulltext":["(smoke%20OR%20,%20%20OR%20smoking%20OR%20,%20%20OR%20cigarette%20OR%20,%20%20OR%20tobacco)"],"sort":["ESCStatePartyOrder%20Ascending"],"ESCDcLanguage":["ENG"],"ESCStateParty":["BEL"],"ESCDcIdentifier":["XV-2/def/BEL/11/3/EN"]}) XV-2/def/BEL/11/3/EN. Further to the entry into force of the FCTC in 2005, the ESCR would rather positively note on many occasions the ratification of the FCTC by the State under review (e.g. https://hudoc.esc.coe.int/eng#{"fulltext":["(smoke%20OR%20,%20%20OR%20smoking%20OR%20,%20%20OR%20cigarette%20OR%20,%20%20OR%20tobacco)"],"sort":["ESCCharterIdOrder%20Ascending,ESCArticleOrder%20Ascending"],"ESCDcLanguage":["ENG"],"ESCStateParty":["HUN"],"ESCDcIdentifier":["XVII-2/def/HUN/11/3/EN"]}) XVII-2/def/HUN/11/3/EN; (https://hudoc.esc.coe.int/eng#{"fulltext":["(smoke OR , OR smoking OR , OR cigarette OR , OR tobacco)"],"sort":["ESCCharterIdOrder Ascending,ESCArticleOrder Ascending"],"ESCDcLanguage":["ENG"],"ESCStateParty":["UKR"],"ESCDcIdentifier":["2009/def/UKR/11/3/EN"]}) 2009/def/UKR/11/3/EN; (https://hudoc.esc.coe.int/eng#{"fulltext":["(smoke%20OR%20,%20%20OR%20smoking%20OR%20,%20%20OR%20cigarette%20OR%20,%20%20OR%20tobacco)"],"sort":["ESCCharterIdOrder%20Ascending,ESCArticleOrder%20Ascending"],"ESCDcLanguage":["ENG"],"ESCStateParty":["AZE"],"ESCDcIdentifier":["2013/def/AZE/11/3/EN"]}) 2013/def/AZE/11/3/EN. Inversely, it would also make a note for its non-ratification (e.g. https://hudoc.esc.coe.int/eng#{"fulltext":["(smoke%20OR%20,%20%20OR%20smoking%20OR%20,%20%20OR%20cigarette%20OR%20,%20%20OR%20tobacco)"],"sort":["ESCCharterIdOrder%20Ascending,ESCArticleOrder%20Ascending"],"ESCDcLanguage":["ENG"],"ESCStateParty":["AND"],"ESCDcIdentifier":["2013/def/AND/11/3/EN"]})2013/def/AND/11/3/EN.

2. The consideration of the WHO standards by the ESCR is of particular pertinence and it should not be taken for granted. The counterpart of the ESC system within the CoE, namely the system of the European Convention on Human Rights does not always resort to the consideration of the FCTC standards in relevant cases. Even more, tobacco control does not seem to be part of the strategies and agendas of the CoE human rights bodies notwithstanding the serious implications of tobacco on a number of rights.

3. The explicit or implicit dialogue of the ESCR with the FCTC can potentially reinforce the two systems on a mutual fashion. The FCTC, an evidence-based treaty, can function as a source of inspiration for the further advancement of the ESCR’s conclusions with respect to tobacco. Inversely, the work of the ECSR can be seen as very compelling for the FCTC system which in itself is deprived of an autonomous monitoring body.

4. The further advancement and promotion of the CoE ESC system for the protection from tobacco also depends on the dynamics developed externally. The stakeholders involved both in the reporting and complaints procedures of the ESC, such as social partners, NGOs and national human rights institutions can further engage with tobacco control to unravel the intricacies of tobacco and human rights.