The Power of the WHO FCTC: Understanding its Legal Status and Weight

Abstract

On 27 February 2015, the WHO Framework Convention on Tobacco Control (‘WHO FCTC’) will mark 10 years since its entry into force. In a legal (and political) sense, the WHO FCTC is the international community’s most powerful tool to combat tobacco and the tobacco industry. This chapter argues that, as the treaty’s 10-year anniversary approaches, its legal status, weight and utility often appear to be inadequately understood, and that if this remains the case, its power will not be fully harnessed. It addresses some common misapprehensions, focusing on three points. First, it argues that the WHO FCTC, though originally conceived as a ‘framework convention’ — which would establish a general governance framework, with detailed content and obligations to be elaborated through protocols — became something quite different through the course of its negotiation. While the treaty will always be evolving, it is not waiting for something further to bring it into full being. Second, it offers a guide to the proper interpretation of the WHO FCTC, in which the individual provisions of the treaty are read in the context of the treaty as a whole (including its substantive obligations, guiding principles and preamble), and taking into account its implementation guidelines and other relevant decisions of its Conference of the Parties. Third, it observes that the WHO FCTC’s implementation guidelines are often erroneously viewed against a simple dichotomy of ‘binding’ or ‘non-binding’, whereas in fact the correct question is how they bear on interpretation of the treaty. The chapter then applies this analysis, and guide to interpretation, to the example of large graphic health warnings, arguing that it is incorrect to claim that WHO FCTC parties implementing large graphic health warnings are acting beyond what is required by the treaty.