By Gohar Karapetian, University of Groningen, g.karapetian@rug.nl

On 14 September 2016, the Court in The Hague ruled that the possibility to smoke in designated smoking areas in publicly accessible places is in line with Article 8(2) of the Framework Convention on Tobacco Control (hereafter: FCTC). This provision states that State Parties to the FCTC shall adopt, as determined by national law, and actively promote ‘measures, providing for protection from exposure to tobacco smoke in indoor workplaces, public transport, indoor public places and, as appropriate, other public places’. According to the Court, Article 8(2) of the FCTC lacks ‘direct effect’ in the Dutch legal order in the sense of Article 94 of the Dutch Constitution. This, contrary to the ruling of the Dutch Supreme Court (Hoge Raad) on 14 October 2014, where Article 8(2) FCTC was declared to have ‘direct effect’.

By virtue of the Dutch Tobacco Act, in particular Article 10(2)(b), it is legitimate to make an exception through a governmental decree for the smoking ban in publicly accessible places. The governmental tobacco decree entered into force on 1 January 2015 and concretizes Article 10(2)(b) of the Tobacco Act by regulating that the smoking ban does not apply for lockable locations designated for tobacco products in publicly accessible places. Therefore, the Club for Active Non-Smokers – CAN, a public health NGO – challenged the Dutch State for violating Article 8(2) of the FCTC.

A key question in this case is whether Article 8(2) of the FCTC has ‘direct effect’ in the Dutch legal order. According to settled case law, an international provision has ‘direct effect’[i] in the Dutch judicial legal system if it is ‘sufficiently precise to apply it unconditionally as an objective right’.[ii] The Hague Court answers the question whether Article 8(2) of the FCTC has ‘direct effect’ dissentingly. According to the Court’s reasoning the intention of the aforementioned provision is not to introduce a total smoking ban.[iii] In addition, the Court stipulates that there was no agreement during the realization of the FCTC among State Parties that the term ‘measures’ in Article 8(2) FCTC implied a total smoking ban in publicly accessible places.[iv] Furthermore, in this respect the Court explicitly excludes the substance of the Recommendations adopted for the implementation of Article 8(2) of the FCTC – where a total elimination of smoking and tobacco is required, see Principle 1 –, since these Recommendations do not form part of the convention.

However, this reasoning appears to be flawed. According to principles of general treaty law, subsequent agreements between the States shall also be taken into account when interpreting a treaty provision, even though these agreements were adopted after the coming into force of the convention.[v] The Recommendations for the implementation of Article 8(2) of the FCTC are adopted by the Conference of the Parties (hereafter: COP) in July 2007. The COP is comprised of all State Parties to the FCTC and forms the treaty’s governing body. According to the Recommendations for the implementation of Article 8(2) of the FCTC, the aim of these Recommendations is to ‘assist Parties in meeting their obligations under Article 8 of the Convention’.[vi] Moreover, these Recommendations are adopted unanimously by the COP.[vii] Therefore, these Recommendations can be qualified as ‘subsequent agreements’ in the sense of Article 31(3)(a) of the Vienna Convention on the Law of Treaties.[viii] Consequently, for a just interpretation and application of Article 8(2) of the FCTC, the Court in The Hague should have taken into account the Recommendations adopted by the COP. The Recommendations could have given a direction for more precise information pertaining to the nature and the scale of the State’s duty to actively promote measures for the protection from the exposure to tobacco smoke in publicly accessible places. Perhaps, then, Article 8(2) of the FCTC could – such as in the Supreme Court’s Ruling of 14 October 2014 – also have ‘direct effect’ in the domestic legal order.

[i] Instead of the term ‘direct effect’, the Dutch Constitution uses the term ‘eenieder verbindend’, which roughly means that an international provision should provide rights and duties to the people, in order to be binding for the people in the domestic legal order. However, after the ruling of the Supreme Court on 14 October 2014, the Dutch courts have familiarized themselves using the from European Union Law derivated definition of the term ’direct effect’.

[ii] Supreme Court of the Netherlands, The State of the Netherlands vs. CAN, ECLI:NL:HR:2014:2928, paragraph 3.5.2.

[iii] The Hague Court, The State of the Netherlands vs. CAN, ECLI:NL:RBDHA:2016:11025, paragraph 4.8.

[iv] Ibid.

[v] Article 31(3)(a) of the Vienna Convention on the Law of Treaties.

[vi] Conference of the Parties, Decision FCTC/COP2(7), paragraph 1. Available at: http://apps.who.int/gb/fctc/PDF/cop2/FCTC_COP2_DIV9-en.pdf.

[vii] Ibid.

[viii] ‘Decisions of the Conference of the Parties, as the supreme body comprising all Parties to the FCTC, undoubtedly represent a “subsequent agreement between the Parties regarding the interpretation of the treaty”, as stated in Article 31 of the Vienna Convention’, World Health Organization, FCTC/COP/INB-IT/3/INF.DOC./6, annex. See also: UN General Assembly International Law Commission, First Report on subsequent agreements and subsequent practice in relation to treaty interpretation, A/CN.4/660, 19 March 2013; UN General Assembly International Law Commission, Second Report on subsequent agreements and subsequent practice in relation to the interpretation of treaties, A/CN.4/671, 26 March 2014.