Tobacco has been on the WHO agenda since 1970 and has focused primarily on studying its health effects and supporting Member States (particularly developing countries) in their national tobacco control programmes. However, the idea of an approach to international law only emerged in the 1990s, thanks to the undeniable effects of globalization and economic liberalization, as well as the power and sophistication of the multinational tobacco industry on the spread of tobacco use. The decision to focus on a framework convention modelled on environmental conventions was taken in 1996 by the World Health Assembly (resolution WHA49.17) on the basis of a feasibility study carried out by legal experts. The rationale for a normative model (main convention of a general nature, supplemented by detailed protocols) used in a very different field was a conceptual compromise between, on the one hand, a legally binding instrument, on the one hand, and the foreseeable difficulty of convincing States with strong economic interests in the tobacco sector to make strict commitments immediately. It should also be noted that although the WHO Constitution confers treaty powers on the World Health Assembly (WHO Constitution, Articles 19-20), this power has not been exercised so far. As a result, both the WHO Secretariat and the national delegations, which were largely composed of officials from the Ministry of Health, lacked experience with the implications of negotiating and administering an international convention. Conflicts of interest The McCabe Centre is a WHO FCTC knowledge centre that focuses on legal challenges in implementing the FCTC. In this role, she assists governments and other actors in maximizing the legal weight and power of the WHO FCTC in implementing and advocating for tobacco control measures. Many of the cases cited in this document were defended by lawyers who participated in the activities of the McCabe Knowledge Centre.
Results The WHO FCTC was cited in 45 decisions. Decisions citing and not citing the WHO FCTC were largely decided in favour of governments, with 80 per cent of WHO FCTC cases and 67 per cent of WHO FCTC cases confirming the measure in its entirety and for any reason to dispute. In the cases cited, the WHO FCTC has helped to resolve the case in favour of governments by providing a legal basis for action, defining the objective of action for public health, demonstrating evidence of action, demonstrating international consensus, demonstrating that action promotes or protects health-related human rights, and demonstrated whether a measure is appropriate or not. proportionate or reasonable. Subsequently, Taylor developed the idea of the approach of the Protocol to the Framework Convention on Tobacco Control as part of his doctoral thesis2 and presented the first paper on this proposed international legal strategy for tobacco control at the annual meeting of the Academic Council of the United Nations System in The Hague in June 1994.3 World Conference on Tobacco or Health in Paris in October 1994, Roemer introduced a resolution calling for the adoption of an international instrument to control tobacco use, and Taylor presented a poster outlining the international legal strategy. The resolution, drafted with Mackay`s assistance, was adopted as one of the first resolutions of the conference. After the first Roemer-Taylor meeting, Ruth Roemer pledged to promote the idea of an international legal approach to tobacco control nationally and internationally. In the summer of 1993, she attended the first Pan-African Conference on Tobacco or Health, chaired by Derek Yach, then with the Medical Research Council of South Africa, and Timothy Stamps, then Zimbabwe`s Minister of Health. Later that year, in October 1993, Roemer visited WHO headquarters in Geneva and discussed the idea with senior officials from various WHO departments. Later that month, she met with tobacco control colleagues at the annual meeting of the American Public Health Association and encouraged them to consider the idea.
A colleague, Judith Mackay, director of the Asian Consultancy for Tobacco Control, supported the idea of a tobacco control treaty and later became a leading supporter of the convention. Despite an initial lack of enthusiasm for the idea of an international law to reduce tobacco use, Roemer insisted on promoting the idea worldwide. Since 2005, the WHO FCTC has bound the Netherlands. Since then, Dutch courts have examined Articles 8.2 and 5.3 of the FCTC on three occasions. In this article, we examine these three cases to analyse the enforceability of Articles 8.2 and 5.3 of the FCTC in the Netherlands. Particular attention shall be paid to the role played in such cases by the guidelines and recommendations adopted by the Conference of the Parties. We note that the enforceability of the two articles depends on the particular circumstances of the case. We argue that the Dutch courts should have examined the FCTC`s guidelines and recommendations more carefully. It shows that the WHO FCTC has been used in a variety of ways to support an effective defence against legal challenges, including strengthening the legal and evidentiary basis for action, demonstrating a bona fide public health objective, demonstrating international consensus, supporting human rights-based arguments, and demonstrating the adequacy of a measure. In reviewing the cases, our criteria for inclusion were as follows: the respondent had to be a party to the WHO FCTC at the time of the decision, and the case had to be a legal challenge to prevent or impede the full implementation of a tobacco control measure, not a challenge to enforce a higher standard of implementation. The paper focuses on challenges to regulatory measures, so we have excluded challenges solely through the application of a law to individual businesses or individuals (as opposed to challenges to the validity of the law itself) and enforcement procedures.
We have included cases that had been appealed (including judgments on the merits at all stages of the dispute), but which removed interim or purely procedural orders, unless they resulted in the final dismissal of the proceedings. This gave us a series of 96 judgments in 26 jurisdictions that met the inclusion criteria. We then divided the sentence according to whether or not the court`s decision cited the WHO FCTC – 45 judgments in 20 jurisdictions did so. The additional table on line 1 summarizes the facts, conclusions and aspects of these 45 cases related to the WHO FCTC. In Supplementary Table 2 online, the 96 cases that meet the inclusion criteria are summarized more briefly. All these processes require the head of state, head of government or other legally authorized government representative of a country to deposit an instrument of ratification or equivalent legal instrument with the Secretary-General of the United Nations (UN headquarters in New York), who serves as depositary of the Convention. The acceptance of the deposit of the instrument of ratification by the United Nations — and not the approval of the instrument of ratification at the national level — establishes that a country is a party to the WHO FCTC and is therefore bound by the obligations of the Treaty. The FCTC has the potential to act as a global complement to regional, national and local tobacco control measures.
Even before the adoption of the treaty, while negotiations were ongoing, a number of governments took steps to strengthen their tobacco control legislation and programmes.  The final text of the treaty, as negotiated by WHO Member States, fails to adopt many mechanisms used in other global frameworks to encourage States Parties to comply with their obligations under international law. Therefore, increased global awareness and national political commitment will be crucial for the successful implementation of this new public health tool. In mid-July 1995, Roemer and Taylor worked together on a WHO treaty to prepare an information paper, which would be published on 8 July 1995. September 1995 on options for international tobacco control measures to be implemented by the United Nations in accordance with World Health Assembly resolution 48.11.4. A detailed draft of the proposed document was submitted to WHO on 27 July. In 1995, various options for an international legal tobacco control strategy were identified and the development and implementation of a WHO Framework Convention on Tobacco Control and related protocols were recommended to promote global cooperation and national tobacco control measures. Developed in response to the globalization of the tobacco epidemic, the WHO FCTC is an evidence-based treaty that affirms the right of all people to the highest attainable standard of health.