Balancing Interests in Free Trade and Health: How the WHO's Framework Convention on Tobacco Control Can Withstand WTO Scrutiny
Eckhardt, Joseph N., Duke Journal of Comparative & International Law
Tobacco is one of the most widely consumed products in the world, and yet it has an extremely negative impact on human health. Worldwide, one in three adults, or approximately 1.1 billion people, smoke or consume other tobacco products, and between 82,000 and 99,000 young people take up smoking every day. (1) By the year 2020, it is projected that more people will die from tobacco-related diseases than from any other single disease. (2) In response to this, the World Health Organization (WHO) has established an ambitious goal: generate a treaty regime to reduce tobacco consumption. (3) In 1999, the WHO's legislative body, the World Health Assembly (WHA), unanimously passed an unprecedented resolution to convene negotiations for the development of The Framework Convention for Tobacco Control (FCTC), to be adopted by 2003. (4) The FCTC will be the first instrument in an incrementally developed regime whereby states ratify a framework convention and subsequent protocols designed to reduce the consumption of tobacco. (5) The FCTC and follow-up protocols will focus on measures to facilitate international cooperation and will place signatory nations under obligations to enact domestic legislation that will curb tobacco consumption. (6) Among the measures contemplated, there are several that will relate to international trade obligations. (7) For example, Article F of the current draft of the FCTC (Draft FCTC or Draft Convention) would encourage, but not require, signatory nations to eliminate duty-free sales of tobacco products and to increase taxes on tobacco products in order to reduce consumer demand. (8)
Tobacco control measures such as these are sure to draw criticism from the tobacco industry, which has consistently resisted regulation for decades, (9) as well as countries that rely on tobacco production for economic stability. (10) Additionally, it is likely that states that are major stakeholders in the tobacco industry and those that are home to powerful tobacco companies (11) will choose to challenge tobacco control measures adopted by an FCTC signatory as a violation of the free trade rules enforced by the World Trade Organization (WTO). The WTO, a robust international institution with a membership of over 140 states, has built a reputation as a zealous defender of the free trade regime. (12) In its relatively short history, the WTO, like the dispute settlement panels that operated under the WTO's predecessor, the General Agreement of Tariffs and Trade (GATT), has consistently struck down state-sponsored measures which were ostensibly designed to protect human health or the environment when it found that such measures conflicted with free trade rules. (13) Accordingly, the WHO and other promoters of the tobacco control regime must direct their efforts carefully in promulgating the FCTC and follow-up protocols, in order to avoid conflicts with WTO-enforced free trade rules.
This paper discusses free trade principles and the prospects of developing an effective, global, tobacco control regime that is compatible with free trade rules. In order to understand why the WHO is promoting the FCTC, it is important to discuss briefly the impact of tobacco consumption. In terms of the economic impact of tobacco, the World Bank recently concluded that while it is difficult both to identify and quantify the impact on society, smokers do not bear the sum of the costs of their choice to smoke, and furthermore, smokers impose health and financial costs onto the nonsmoking portion of society. (14) Worldwide, tobacco consumption currently causes four million deaths annually, and it is estimated that by the year 2030, ten million people per year will die of tobacco-related diseases including lung cancer, emphysema, and heart disease. (15) Moreover, an important shift in the tobacco problem is occurring: in the developing world, where domestic regulation is typically weak, tobacco consumption is increasing even while it decreases in the developed world. …