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By Simon Lester —

Tobacco Regulation, International Trade Law, and International Health Law: Conflict and Cooperation

The other day I mentioned a Journal of World Trade article of mine on domestic tobacco regulation, international trade law, and the Framework Convention on Tobacco Control (FCTC).  I'm going to give a bullet point summary here.  Some of the points will be uncontroversial; others are bound to irritate somebody:

  • If you look at FCTC obligations and WTO obligations, there's not really much potential for conflict between the two.
  • Actual trade disputes related to tobacco are almost all about protectionist measures. Very few -- anywhere from one to three, depending on your viewpoint -- concern a health measure.
  • As an international law instrument, the FCTC will play some role in interpreting WTO obligations.
  • The WHO can play a role in WTO disputes directly, by providing information to the panel.

So far, the relationship is mostly about cooperation, not conflict. But now it gets more interesting:

  • What if there is a conflict between the FCTC and the WTO, on plain packaging for example?  Unfortunately, traditional treaty conflict rules don't really help much with these issues.
  • In my view, the enforceability of international law instruments should be taken into account in deciding which instrument takes precedence in the event of a conflict.  The drafters intended to give more weight to instruments that have greater enforceability (hard law) than those with less enforceability (soft law).
  • The practical reality is that WTO rules are enforceable, whereas FCTC rules are not.  Treaty interpreters should take this into account when resolving conflicts.
  • So, FCTC soft law can influence WTO interpretations, but it can't take precedence over it.  If there is an actual conflict -- FCTC law requires something, but WTO law prohibits it -- then WTO law "wins".

The final point addresses whether this situation should be corrected:

  • There has been a suggestion to carve tobacco out of trade agreements.  I say the better approach is to draft trade agreements in such a way that they don't interfere with legitimate regulations (which may require some changes to current trade agreements).  That will solve any issues people have regarding tobacco regulation.  No need for a carve out.