The public health and international law communities came together in 2004 to create the WHO Framework Convention on Tobacco Control (FCTC), the first global treaty designed to combat a specific public health issue. The FCTC and its guidelines instruct countries on effective measures to reduce tobacco use. Obligations under the FCTC include tax and price measures, smoke-free air laws, education, the banning of tobacco marketing, and the prevention of tobacco industry interference in all these measures.
Smoking is a growing problem in Latin America and other developing regions. Many countries are not protecting their citizens from the harms of tobacco; this represents a failure to live up to treaty obligations under regional human rights treaties.
Tobacco and Latin America. Tobacco in Latin America is cheap and within the purchasing power of almost the entire population. Between 8 percent and 10 percent of smokers in the world live in Latin America, and more than half will die of smoking-related disease. Youth tobacco usage in the region is on the rise, with 13.16 percent of young people between the ages of 15 and 18 smoking.
The World Lung Foundation determined that in 2010, tobacco companies reported $35 billion in profits. There is a lot of money at stake for tobacco corporations around the world, but tobacco multinationals have a great deal of interest in Latin America. Five of the top 25 largest tobacco producers are in the region. Generally, the tobacco industry has successfully defended against domestic tobacco control efforts, and companies in the industry have brought legal actions against Latin American countries that attempt to comply with the FCTC.
Seeking a human rights remedy in the Inter-American system is advisable for three reasons. First, domestic measures have been strongly contested and less than effective. Second, the strong rights-based framework of the Inter-American system means a human rights case is more likely to be effective. Finally, a favorable ruling could have a broad and profound impact, both as favorable precedent in the Inter-American system itself and because individual countries rely on the Inter-American system as authoritative in domestic litigation and to shape domestic legislation.
Which rights to assert? The Inter-American Commission on Human Rights and the Inter-American Court of Human Rights are both related to the Organization of American States (OAS). The American Convention on Human Rights was established under OAS auspices, and the American Convention in turn created the Commission and the Court. The Commission works with states to help strengthen laws and institutions that provide human rights protections. The Court is an autonomous judicial institution whose purpose is the application and interpretation of the American Convention.
The Commission can take a variety of actions, including visiting member states, issuing reports, issuing advisory opinions on a petition, and requesting precautionary measures from the Court. Any individual can file a petition with the Commission against any OAS member state. A petition of the kind recommended here would allege violations of the American Convention if the state has ratified that treaty, or it would allege violations of the American Declaration of the Rights and Duties of Man if the state has not. The American Declaration is one of the foundational documents of the OAS, and as such, it imposes a degree of moral authority over all OAS member states.
The Commission can refer a case to the Court. Because individuals cannot petition the Court themselves, this is the only way cases brought by individuals are heard in the Court. For the Commission to refer a case to the Court, the state must have accepted the Court’s contentious jurisdiction or the state must accept the Court’s jurisdiction in that specific instance.
The American Declaration recognizes the rights to life, health, the protection of children, and a safe and healthy work environment. The American Convention recognizes the right to life, sets forth the obligation of protection of the child by the state, and bans inhumane treatment. A petition would likely assert a number of these rights; however, bringing the case within the ambit of the right to health would be an effective way to narrow the issue. In the context of smoking and its detrimental impact on public health and safety, the right to health seems an obvious choice.
However, there is a significant question as to whether the right to health is currently justiciable in the Inter-American system. Therefore, another, more traditionally justiciable right should be considered. For example, many tobacco ads target women or children, and this kind of targeting could raise issues of equal protection. Advocates have recommended using an individualized petition in the Inter-American system against a state on behalf of a vulnerable group exposed to tobacco industry advertising or secondhand smoke.
Why the Inter-American system? In many countries in Latin America, actions of the Commission and decisions of the Court are authoritative. Bringing suit against a state could result in a recommendation or ruling from the Commission or Court imploring the defendant state to implement particular practices or protections. There would be potential for impact from the beginning, regardless of the outcome of the case. A positive ruling or recommendation could be cited by advocates in domestic cases and could directly offset the arguments the tobacco industry and its lobbyists make in the countries’ domestic courts and legislatures. Any proceedings would also draw media attention to the issue, could shame the state into taking proactive measures or addressing the problems, and could have a dramatic chilling effect on the tobacco industry.
While it would be possible to bring a domestic suit in tort, most Latin American countries follow a civil law system. A high burden of proof, a narrow definition of standing, and limits on recovery tend to lessen the impact of domestic suits. However, because some domestic litigation has been brought, litigation guides and scholarship on invoking international human rights law in the Inter-American system already exist. Relevant experts, arguments, and authority also could be gleaned from the domestic cases. Still, a strategy of action against states through fundamental rights litigation is more widely practiced and more effective than domestic litigation. Furthermore, bringing a regional international suit could help counteract the tobacco industry’s influence in Latin America.
The tobacco industry has not just used litigation to interfere with tobacco control legislation. Civil society organizations have reported that common tactics by the industry include lobbying, political pressure, misinformation mass media campaigns, personal attacks on opponents, and exploitation of loopholes within the tobacco control laws. However, perhaps the most troubling tactic is “corporate social responsibility.” By carrying out philanthropic campaigns, the industry gets positive media attention—even in countries with a ban on advertising. A suit would mitigate or even erase the impact made from tobacco companies’ so-called “corporate social responsibility.”
ABA Section of International Law
This article is an abridged and edited version of one that originally appeared on page 41 of International Law News, Spring 2015 (44:2).
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