Consistent and Recurring Use of External Legal! Norms: Examining Normative Integration of the FCTC post-Australia – Tobacco Plain Packaging

Abstract

The Framework Convention on Tobacco Control (FCTC) has emerged as international consensus concerning legally binding trade measures related to tobacco products. Nevertheless, the tobacco industry along with various WTO Member States have regularly argued that certain FCTC compliant measures conflict with various obligations arising from the WTO and international investment agreements. Normative conflicts between the FCTC and international economic law crystalize at the dispute resolution stage. This article analyses WTO and investor state dispute settlement (ISDS) disputes concerning tobacco control measures (TCMs), including Australia – Tobacco Plain Packaging, and shows consistent, recurring, and increasing use of the FCTC by tribunals who reliably uphold non-discriminatory TCMs on public health grounds. Despite a general hesitancy to formally integrate external legal norms in international legal systems, this article posits that the regularity of reliance on the FCTC, not only for evidentiary issues, but also for substantive legal analysis, evidences normative integration of the FCTC in international economic legal regimes. In line with the principle of systemic integration, international tribunals should consider the FCTC not only as factual reference, but also as legal norms when relevant.