Eva Rippe, LLM Student Public International Law, University of Groningen, e.m.rippe student.rug.nl

Relevant legal provisions

Introduction

Tobacco control is a public health imperative and a human rights issue, as it intersects with various international treaties and declarations aimed at safeguarding fundamental rights. Alongside the World Health Organization Framework Convention on Tobacco Control (WHO FCTC), treaties such as the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the Convention on the Rights of the Child (CRC) provide a robust framework for addressing tobacco-related issues. This brief explores how these international human rights treaties complement the FCTC as the first-ever international public health treaty promoting smoke-free zones and upholding human rights in tobacco control.

The WHO FCTC: A Comprehensive Approach to Tobacco Control

The FCTC is a landmark treaty aimed at reducing tobacco-related harm by addressing supply and demand-side measures. As of 2017, 181 States have ratified the Convention.[1] It builds on the right to health and underscores the obligation of States to protect individuals from the dangers of tobacco use and exposure to second-hand smoke while balancing these risks with tobacco industry trade demands. Especially article 5.3 requiring States to protect their public health policies "from commercial and other vested interests of the tobacco industry",[2] is seen as the cornerstone of the accomplishments of the FCTC.[3] The tobacco industry is known to oppose measures regulating its products,[4] and this article manages conflicts of interests demanding public health be prioritized over commercial interests. Although this unique article could solve disputes when creating public health policies, its domestic implementation differs significantly, slowing tobacco control progress.[5]

Relevant Provisions of the FCTC

The FCTC itself is a public health treaty and must be read in that context. Even if certain provisions have trade law implications, they affirm the human right to the highest attainable standard of health.[6]

Taking a closer look at relevant parts that play a vital role in the discussion of human rights and tobacco control, part III aims at a reduction of demand for tobacco products, with provisions on pricing, exposure to smoke, and raising awareness about the dangers of tobacco consumption. Part IV tackles the reduction of supply, regulating trade, and selling to minors, and part V calls for the protection of the environment and persons' health within the entire industry.

More specifically, article 8 offers protection from exposure to tobacco smoke in all public spaces, indoors and outdoors. Articles 11 and 13 require limitations on advertisement (article 13) and labelling of tobacco products (article 11). Additionally, article 12 required the State parties to promote and strengthen education, communication, and training to increase public awareness, emphasizing the importance of public education and awareness-raising campaigns regarding the health risks associated with tobacco use. Another relevant provision is article 17, calling for the promotion of economically appropriate alternatives for those who make a living in the tobacco industry.[7]

Tobacco Control in International Human Rights Law

The integration of international human rights frameworks into tobacco control strategies supports and enhances the legitimacy of tobacco control measures, particularly in establishing smoke-free zones. Tobacco control policies such as the FCTC provide standards and guidance on tobacco control, while international human rights obligations offer arguments for States to regulate the industry.[8] This creates a more close-knit web of protection. While various human rights documents and provisions are relevant to tobacco regulation, a few major and more intuitive human rights are essential to tobacco control. One crucial aspect is that human rights bring three types of State obligations. First is the obligation to respect the right, thus not violate it itself. Second, to protect the particular right from infringement by others, and finally, to fulfil the right in question, thus adopting measures to realize the enjoyment of said right.[9]

Right to life

The inherent right to life is threatened by tobacco every day. An estimated eight million people are killed annually due to direct or indirect effects of tobacco consumption.[10] The right to life is primarily found in article 6 of the ICCPR,[11] as well as article 6 of the CRC.[12] The United Nations Human Rights Council (UNHRC) has stated that the right shall not be interpreted narrowly. Which means coverage of “acts and omissions that are intended or may be expected to cause their unnatural or premature death, as well as to enjoy a life with dignity.”[13] Moreover, the right entails a duty to protect for the State, which requires adopting measures against foreseeable threats and life-threatening situations and diseases.[14]

Right to health

The ICESCR recognizes the right to the highest attainable standard of health in article 12. The ICESCR Committee mentioned that tobacco use is discouraged with regards to the enjoyment of the right to health, and there is a violation of the obligation to protect if the State fails "to discourage production, marketing, and consumption of tobacco."[15] It could, therefore, be said that by not obeying the FCTC, a State violates its obligation to protect the right to health.

The CRC also grants a right to health in article 24, which, regarding tobacco, has received quite some attention from the Committee in general comments 15 on the right of the child to the highest attainable standard of health.[16] Concern about an "increase in mental ill-health" due to tobacco use was raised.[17] Again, the duty to protect requires states to take appropriate measures against harm caused by tobacco. Moreover, the Committee explicitly encourages the ratification of the FCTC.[18]

Lastly, there is an obligation for progressive realization under the human rights instruments[19] , which means that the State fulfils its right to the best of its capacity without regression.[20] The right to health aligns with the FCTC's provisions requiring demand reduction measures and offering protection from second-hand as well as third-hand smoke.[21] However, the FCTC's article eight only demands regulation of tobacco exposure in public spaces (art. 8(2)), while the CRC also requires protection from second-hand smoking at home.[22]

Children's best interest and the right to information

The CRC gives a guiding provision in article 3, which requires all actions taken by a State concerning a child to be done with the child's best interest in mind. Second-hand as well as third-hand smoke exposure does, however, negatively impact children; therefore, regulation excluding these risks would violate article 3 CRC.[23]

Another relevant article for children's protection is article 17 of the CRC, which emphasizes the right of children to access information essential for their health and well-being. These provisions align with the FCTC's article 12 on education and public awareness and the articles on advertisement (article 13) and misleading labelling (article 11), which provide the basis for broad and effective knowledge building to empower the consumer to make better choices.

A right to smoke?

Some argue that there is a 'right to smoke' based on the human right to liberty (art. 9 ICCPR) and self-determination (art. 1 ICCPR); however, this idea is fueled by framing campaigns of the tobacco industry.[24] When, studies in the US showed that smoking causes cancer, the tobacco industry reacted with an 'individuals’ personal responsibility’ defence.[25] This phrase frames accountability for smoking-related health issues away from the industry towards the consumer and is popular in media and litigations.[26] It entails two aspects: liberty and blame. Individuals have the liberty to smoke and, therefore, are to blame when they become sick.[27] However, both implications omit the role of addiction.[28] Smoking limits free choice through its highly addictive nature and harms the consumers as well as others’ development by negatively impacting their health and personal income.[29]

Concluding remarks

The human rights conventions discussed have well-established independent monitoring bodies where experts revise State progress on implementing human rights.[30] The FCTC, on the other hand, only required states to draft internal reports on its progress, having lost the independent monitoring aspect.[31] These monitoring bodies offer alternative possibilities to monitor compliance with the FCTC in the States. It requires, therefore, a combination and cooperation of tobacco control and human rights to promote smoke-free zones and prioritize human rights and well-being over commercial interests.

Suggestions for further reading:

• Gispen, Marie, and Toebes, Brigit (eds.) ‘Human Rights and Tobacco Control’ Edward Elgar Publishing (2020)
• Toebes, Brigit, and Gispen, Marie ‘Children’s rights and tobacco control.’ Tobacco Prevention & Cessation 4 (2018)
• Durojaye, Ebenezer, and Murungi, Lucyline (eds.) ‘International Human Rights Law and the Framework Convention on Tobacco Control: Lessons from Africa and Beyond’ 1st ed., Routledge (2022)
• Cabrera Oscar, Gostin Lawrence ‘Human rights and the Framework Convention on Tobacco Control: mutually reinforcing systems’ International Journal of Law in Context 7.2. (2011)

[1] Secretariat of the WHO Framework Convention on Tobacco Control, 'Parties' (WHO FCTC) <https://fctc.who.int/who-fctc/overview/parties> accessed 14 November 2024.

[2] WHO Framework Convention on Tobacco Control, (2003), 2302 UNTS 166, art. 5.3.

[3] Ralston et al. (2022) 1.

[4] Bialous, Stella, ‘Impact of implementation of the WHO FCTC on the tobacco industry’s behaviour’ (2019) Tobacco Control 28, 94.

[5] Ralston et al. (2022) 1.

[6] Gupta, Kratika, 'The World Health Organization Framework Convention on Tobacco Control (WHO FCTC): The First Global Public Health Treaty' (2018) International Journal of Law Management & Humanities 1, 44.

[7] Gupta (2018) 49-52.

[8] Graen, Laura, ‘Advancing tobacco control with human rights’ (2020) Public Health Panorama 6.2, 255.

[9]  Moeckli, Daniel, et al., ‘International human rights law’ (2018) Third Edition, Oxford University Press, 97ff.

[10] Graen (2020) 253.

[11] UN General Assembly, International Covenant on Civil and Political Rights, (1966) UNTS 999, art. 6.

[12] UN General Assembly, Convention on the Rights of the Child (1989) UNTS 1577, art. 6.

[13] UN Human Rights Committee, General Comment no. 36: Article 6 (Right to Life), CCPR/C/GC/35 (2019) para 3.

[14] ibid; para 19 and 26.

[15] UN Committee on Economic, Social and Cultural Rights, General Comment No. 14: The right to the highest attainable standard of health (Art. 12). E/C.12/2000/4 (2000) para 15.

[16] UN Committee on the Rights of the Child, General Comment No. 15: on the right of the child to the enjoyment of the highest attainable standard of health (art. 24), CRC/C/GC/15 (2013)

[17] ibid., para 38.

[18] ibid., para 65.

[19] ICESCR, art. 2(1) and CRC, art. 24(4).

[20] CESCR General Comment 14, para 31.

[21] Third hand smoke is “the residue of tobacco smoke clinging to furniture and other materials long after exposure.”, Graen (2020) 254.

[22] Graen (2020) 254.

[23] Gispen, Marie and Toebes, Brigit ‘The Human Rights of Children in Tobacco Control’ (2019) Human Rights Quarterly 41.2., 340-373.

[24] Graen (2020) 255.

[25] Friedman, Lissy, et al. ‘Tobacco Industry Use of Personal Responsibility Rhetoric in Public Relations and Litigation: Disguising Freedom to Blame as Freedom of Choice’ (2015) American Journal of Public Health 105.2., 250.

[26] ibid., 251.

[27] ibid., 252.

[28] ibid., 252.

[29] Graen (2020) 255.

[30] Cabrera, Oscar, and Constantin, Andrés, ‘Tobacco control in international human rights law.’ in Gispen and Toebes (eds.), Human Rights and Tobacco Control, Edward Elgar Publishing (2020) 54.

[31] FCTC, art. 15(4)(a).