The objective of the WTO FCTC is to fight all these issues, including this kind of spread, and to bring the health situation at his optimum level.
Let us go in detail and see how it works and how it is formed.
FCTC has three basic characteristics:
- Rationality: stimulating collaboration between States,
- Focus: do not think like a State, but think like a Community,
- Achievements: speeding up the negotiation process.
FCTC entered into force in 2005 and today, it has 180 signatories (not US and China). It has provided an international response and it works using two approaches: right-based and scientific-based.
Focusing on the legal part, FCTC is governed by Conference of the Parties (COP).
COP is made up of representatives of the Convention States; its main functions are to keep under regular review the implementation and to take decisions to promote its effective implementation.
COP divided the FCTC into ten very important parts:
- Articles 3-5: establish the objective, guiding principles general obligations engendered by the treaty;
- Articles 6 to 14: demand-side reduction measures;
- Articles 15-17: supply-side reduction measures;
- Article 18: protection of the environment;
- Article 19: liability;
- Articles 20-22: cooperation and communication;
- Articles 23-26: institutional arrangements and financial resources;
- Article 27: settlement of disputes;
- Articles 28-29: development of the convention;
- Articles 30 - 38: “final provisions”, covering statutory matters such as means of acceding to the Convention, entry into force, and so on.
One of its principal functions is the Monitoring Mechanism.
It is a common use in U.N. and its purpose is to further the effective implementation of the Rules. It is based on two pillars: domestic implementation (articles 6 to 14) and international cooperation (article 5).
Another function is the use of protocols.
They could be proposed by any State of FCTC and they are used to advance the objectives in framework treaty but, before entering into force, they have to be ratified.
States cooperation is very encouraged; in fact they may draw up joint strategies and communicate them to the third parts in the form of guidelines.
Guidelines, according to WHO Secretariat, is a: “non-binding instrument adopted by an international body to provide assistance to Countries in addressing specific issues at the National and International level”. They are used to implement the Convention, especially for Articles 8-13, 5 and 14 of FCTC and, before entering into force, they must be approved unanimously.
This is only an overview of the WTO FCTC, but what happens in the event of disputes?
FCTC contains a conflict clause and, according to the article 2 (FCTC), the States are free to make bilateral and/or multilateral agreements and”…on issues relevant or additional to the Convention and its protocols, it (FCTC conflict clause) provided that such agreement are compatible with their obligations under the Convention and its protocols.”
As we see, international normative conflict are frequent because each part of the dispute has different priorities (based on its internal interests), an enlargement of the field of application caused by the improvement of technological and scientific knowledge, and the overlapping is becoming current.
To try to solve this problem, it is a common use to adopt an international standard. For example, some FCTC guidelines could be qualified ad international standard, but only as the results of “standardizing activities” carried out by the COP.
However, is the COP “open” (only to signatories)? If not, WHO would create some controversy.
It is not unusual see controversy between international firms and State.
For example, we could see the case Philip Morris Asia (then International) versus Uruguay or Australian Government.
In the case of Australian Government, to combat the spread of tobacco, they have enacted a law to change the packaging of cigarettes, creating a package standard and trying to spread it to other States. Obviously, Philip Morris did not remain on the sidelines and proceeded to court.
The situation is still evolving.
Concluding, there is not a real conflict. It is all a matter of finding agreements and have enough time to work.
There is nothing in FCTC that compels implementation in a way contrary to WTO law. Implementation may raise questions of compliance with WTO law but, as I said before, it is all fixable.