Respect, protect, fulfil and tobacco control

Human rights were traditionally classified into two broad categories: negative and positive rights (Ferrajoli, Reference Ferrajoli2001; see also Alston, Goodman and Steiner, Reference Alston, Goodman and Steiner2008). According to this classification, civil and political rights were considered negative rights, while economic, social and cultural rights were seen as positive rights. Negative rights were understood as imposing obligations on states to refrain from certain conduct (Alston et al., Reference Alston, Goodman and Steiner2008). On the other hand, positive rights require states to engage affirmatively in certain activities, and develop positive measures to comply with human rights obligations, including the expenditure of resources (Alston et al., Reference Alston, Goodman and Steiner2008). According to this twofold division, economic, social and cultural rights were ‘perceived as “positive”, vague and resource-demanding rights subject to progressive realization’ (Koch, Reference Koch2005, p. 82); i.e. economic, social and cultural rights were considered aspirational goals and not concrete, enforceable rights (Koch, Reference Koch2005). In contrast, civil and political rights were perceived ‘as “negative”, precise and cost-free, capable of immediate implementation’ (Koch, 2005, p. 82).

This positive/negative dichotomy, however, does not hold up under careful scrutiny. Some civil and political rights, usually understood as demanding only abstention from the state, also require positive actions. For example, the right to a fair trial (connected with the right to due process or natural justice), not only requires states to abstain from violating rights, but also requires states to devote resources to create a functioning judicial system that can guarantee a fair trial, including the right to counsel. The same applies to rights traditionally understood as positive, such as the right to education, which requires states to abstain from discriminating against minorities in, for instance, access to the public education system (Cabrera and Madrazo, Reference Cabrera and Madrazo2010).

This twofold characterisation of human rights increasingly has been replaced with a threefold classification of human rights obligations (Koch, Reference Koch2005). This threefold classification focuses on the type of state obligation and not on the nature of the right; therefore, it applies to civil and political, and economic, social and cultural rights (Koch, Reference Koch2005).Footnote ¹⁰ According to this threefold typology, adopted by the Committee on Economic, Social and Cultural Rights (CESCR),Footnote ¹¹ states have obligations to respect, to protect and to fulfil all human rights.

The obligation to respect requires states to refrain from directly (or indirectly) violating human rights or interfering with their realisation. States must abstain from developing policies, laws and regulations that negatively affect human rights. Moreover, states must refrain from engaging in any conduct that negatively affects human rights. Specific to tobacco control, states must refrain from actively promoting the use of tobacco products (Cabrera and Madrazo, Reference Cabrera and Madrazo2010).

Second, the obligation to protect requires states to take measures to prevent third parties' interference with human rights. This obligation is essential for developing and expanding a human rights approach to tobacco control. Governments have a legal obligation, enshrined in human rights law, to regulate the tobacco industry to prevent the industry from interfering with the right to health and other human rights. For example, governments must ban misleading advertisement of tobacco products (light, mild, etc.) in order to protect the right to health, right to information and rights of consumers (Cabrera and Madrazo, Reference Cabrera and Madrazo2010).

Finally, the obligation to fulfil requires governments to adopt all appropriate legislative, administrative, budgetary and other measures needed for the realisation of human rights (Cabrera and Madrazo, Reference Cabrera and Madrazo2010). This obligation requires governments to enact comprehensive tobacco control legislation that guarantees the right to heath. In addition to enacting legislation, governments must create an infrastructure for the effective implementation of such legislation, including enforcement and monitoring mechanisms. The obligation to fulfil helps create the conditions for individuals to enjoy the human right to health (Jacobson and Soliman, Reference Jacobson and Soliman2002).Footnote ¹²

In many developed countries such as the United States, this robust understanding of economic, cultural and social rights is often greeted with scepticism. The US Bill of Rights, for example, consists mainly of individual rights, whereby the government recognises an obligation to respect individual rights against government intrusion, but says very little of positive obligations (Jacobson and Soliman, Reference Jacobson and Soliman2002). As a result, Americans are, for the most part, less comfortable with the state actively promoting certain rights rather than just assuring that it is not affecting its citizens' ability to exercise their rights (Jacobson and Soliman, Reference Jacobson and Soliman2002).

The tobacco industry has used this sentiment to its advantage, arguing that smoking is an individual choice and government should not be allowed to dictate when and where people smoke (Jacobson and Soliman, Reference Jacobson and Soliman2002). The tobacco industry has used these arguments in an attempt to rally public opinion against laws establishing smoke-free environments, and other similar restrictions (Jacobson and Soliman, Reference Jacobson and Soliman2002). This strategy has had some success, as it has allowed the tobacco industry to dictate the terms of the debate, putting tobacco control advocates on the defensive (Cabrera and Madrazo, Reference Cabrera and Madrazo2010).

The tobacco industry has tried to export these arguments to other parts of the world. However, in contrast to the United States, many younger constitutional democracies (in Africa, Latin America and Eastern Europe) explicitly recognise socio-economic rights for their citizens and impose concurrent obligations on the state to fulfil those rights (Jacobson and Soliman, Reference Jacobson and Soliman2002).Footnote ¹³ Moreover, in some countries where such rights are not explicitly recognised in the constitution, courts have interpreted other rights, such as the right to life, more broadly to encompass affirmative entitlements, such as the right to health.Footnote ¹⁴

While the industry has succeeded in increasing scrutiny of tobacco control laws, the industry itself has largely escaped scrutiny over its own human rights violations (Crow, Reference Crow2005). The tobacco industry has ‘asserted [their] own rights with great success’, but an examination of the industry's role in human rights violations exposes major abuses (Crow, Reference Crow2005, p. ii15). The tobacco industry, although a non-state actor, violates many fundamental rights, such as the right to a healthy workplace, the rights of children and the rights to health and life.

Recent developments on human rights obligations of non-state actors show that they bear responsibility. For instance, a 2011 UN report stated that the responsibility to respect human rights requires that business enterprises

These emerging debates could influence the way in which tobacco control and human rights relate to each other.

In sum, two changes in human rights discourse advances tobacco control efforts. First, human rights scholarship and jurisprudence has increasingly moved away from the rigid division between negative and positive rights, towards an understanding based on the type and nature of states' obligations. Second, the tobacco industry has been able to co-opt human rights language by emphasising state interference with individual rights. Such strategies put tobacco control advocates on the defensive, requiring them to argue that other rights must be balanced against (and ultimately outweigh) individual rights. Modern tobacco control strategies would be better served by highlighting the responsibility of the state to respect, protect and fulfil the right to health, right to life and other related human rights, and by emphasising the human rights violations perpetrated by the tobacco industry.

The FCTC and human rights

As of January 2011, 172 countries had ratified the FCTC (World Health Organization, 2011b). This means that the FCTC covers approximately 87 per cent of the world's population.Footnote ¹⁶ The FCTC and its accompanying guidelines, issued by the Conference of the Parties, set forth minimum standards of measures governments must implement to reduce the harmful effects of tobacco products.Footnote ¹⁷ The FCTC has generated global momentum for increased regulation of tobacco. The process leading to FCTC implementation at country level has pushed governments and public health groups to better understand the role that law can play in protecting the public's health (O'Neill Institute for National and Global Health Law, 2011, p. 11).

Although the FCTC is a binding treaty for state parties, it is uncertain whether it is directly enforceable law in domestic courts. The text of the FCTC is often vague and defers to domestic law, which makes enforceability at the domestic level even more challenging (Cabrera and Madrazo, Reference Cabrera and Madrazo2010). This is in part because the FCTC establishes a broad frame – a set of minimum requirements – that state parties can develop and implement in different ways, i.e. the FCTC gives a ‘margin of appreciation’ for state parties' implementation.

The relationship between the FCTC and human rights can be examined from two different perspectives. First, we can address the concrete human rights references and provisions included in the FCTC. In doing this, we can examine the influence that human rights discourse has on the FCTC. Second, we can examine how the FCTC impacts human rights. We will explore how the FCTC, as an international treaty, can be used to inform human rights obligations, such as the right to health.

In the following part we explain in detail the references to human rights contained in the FCTC. Notably, there are few concrete human rights references in the text of the treaty, besides those in the FCTC's preamble (to Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) as well as to the Convention on the Rights of the Child (CRC) and to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)) (Taylor, Reference Taylor, Thomas Cottier and Bürgi2005). Beyond these non-binding references, the FCTC contains virtually no references to human rights (Taylor, Reference Taylor, Thomas Cottier and Bürgi2005). Furthermore, Allyn Taylor, the senior legal adviser to the FCTC negotiations, has detailed the ‘absence … of any meaningful discourse on the intersection between human rights and public health during the course of [the FCTC] negotiations’ (Taylor, Reference Taylor, Thomas Cottier and Bürgi2005, p. 329). Despite the lack of human rights language in the FCTC, the treaty can be used to promote human rights in tobacco control if argued creatively. Several commentators have argued that the FCTC ‘recognizes the importance of the human rights regimens’ (Novotny and Carlin, Reference Novotny and Carlin2005; see also Crow, Reference Crow2004).

Smoke-free places

In challenging tobacco control laws, one of the most frequently made fundamental rights arguments by the tobacco industry is that ‘smoke-free area’ measures violate the right to private property (Cabrera and Madrazo Reference Cabrera and Madrazo2010).Footnote ³¹ The right to property argument has also been used to challenge bans on advertising, promotion and sponsorship and to challenge health warnings on cigarette packages. However, here we mainly focus on how this argument has been used to challenge smoke-free measures.

The tobacco industry has used a few variations of how the right to property is infringed by bans on indoor smoking, none of which withstand a thorough examination from a human rights law perspective. To begin with, the right to property is not absolute. Although recognised in international human rights law, the right to property can be limited or restricted by the state, in particularly to protect other fundamental rights.Footnote ³² Most states use some form of balancing test to determine whether a regulation is an acceptable limitation of property rights.

The Inter-American Commission on Human Rights recently identified the elements of the proportionality test. The Commission held that in order for a restriction to be lawful and not an arbitrary interference in the right, restrictions must comply with the following requirements: they must (1) have been ‘imposed through a law’; (2) respond ‘to a legitimate aim to raise a social interest or to preserve the general well-being in a democratic society’; and (3) be ‘proportional in the sense of being reasonable to obtain this aim and, in any case, of not sacrificing the essence of the right …’.Footnote ³³

Well-drafted tobacco control laws fully meet this proportionality test. The ‘lawfulness’ prong is the easiest hurdle; if the regulation is passed in compliance with a state's regular law-making process, this requirement is fulfilled.Footnote ³⁴ In tobacco control laws, ‘legitimate aims’ and ‘proportionality’ tests are not difficult to meet either. Tobacco control laws aim to further the right to life, to a safe and clean environment, and to the preservation of health, all of which advance ‘legitimate’ social purposes (O'Neill Institute for National and Global Health Law, 2011). Further, many countries have ratified and incorporated the FCTC into their domestic legislation, adding a further legal obligation to enact strong tobacco control laws (O'Neill Institute for National and Global Health Law, 2011). The proportionality test is a factual one, but as long as the tobacco restrictions do not harm the ‘essence of the right to property’, the limitations on the right are lawful.Footnote ³⁵

In measuring these balancing tests as they relate to smoke-free areas, it is important to remember the real harm caused by second-hand tobacco smoke. Government agencies and scientists have warned that there is ‘no safe level of exposure to second-hand smoke’,Footnote ³⁶ and, according to a recent Pan American Health Organization (PAHO) report, ‘there is no level of exposure at which [second-hand smoke] has been found to be harmless to humans’ (Pan American Health Organization, 2006, p. 7.). There is no controversy in the medical and scientific communities over this issue. Organisations such as the WHO, PAHO and the US Surgeon General have categorically stated that exposure to second-hand smoke creates a serious risk to long-term health. The California Environmental Protection Agency (Cal EPA) estimated that in the US alone second-hand smoke causes 3,400 lung cancer deaths and between 23,000 and 70,000 heart disease deaths annually.Footnote ³⁷ The World Health Organization's most recent estimates put the global death toll from tobacco at six million annual deaths (World Health Organization, 2011a, p. 1).

Despite these data, second-hand smoke continues to be a problem in the developing world. A recent study in seven Latin American countries found second-hand smoke in 94 per cent of the public locations surveyed, with second-hand smoke found not only in bars and restaurants, but also in schools, government buildings and other places where smoking was prohibited by law (Navas-Acien et al., Reference Navas-acien, Peruga, Breysse, Zavaleta, Blanco-marquizo and Pitarque2004).

In weighing the balancing test in the right to property, it is important to recall these figures. Smoking carries no social benefits, but it causes a plethora of social harms. It is difficult to think how a regulation might have a more clear-cut ‘legitimate aim’. This legitimacy of purpose leads to a second fundamental point regarding smoke-free area laws: states are not merely permitted, but are required, to enact laws to protect their citizens from the harm of second-hand smoke.

As described above, governments' attempts to reduce second-hand smoke exposure through smoke-free area laws do not violate owners' rights to property. Indeed, under a human rights framework, governments may violate numerous other human rights by failing to enact smoke-free area laws and allowing continued exposure to the harm of second-hand smoke. Exposure to second-hand smoke poses a violation of numerous fundamental rights enshrined in international law, including: the right to health; the rights of the child; the right to equal protection; the right to just, equitable and satisfactory conditions of work; and the right to a healthy environment (Pan American Health Organization, 2006, pp. 16–18).

In courts from Peru and Uganda to India, judges have found that second-hand smoke violates fundamental rights such as the right to health, the right to life and the right to a safe, clean environment. These courts have ordered governments to enact stricter tobacco control regulations (Pan American Health Organization, 2006, p. 14). For instance, and with regard to the right to just, equitable and satisfactory conditions of work, in a 2002 Canadian case, the Ontario Workplace Safety and Insurance Board awarded a non-smoking waitress compensation as a result of her contracting terminal lung cancer due to daily exposure to second-hand smoke during her employment (Laghi, Reference Laghi2002). Similar cases in the US have also found a causal connection between smoke-filled workplaces and lung cancer.Footnote ³⁸

Such cases support the argument that there are strong rights-based arguments in favour of smoke-free areas. Although the tobacco industry claims that smoke-free areas are a violation of property rights, a workers' rights argument powerfully counteracts that claim. This argument could be more persuasive to advance policy debate, as public opinion is sympathetic to arguments that support regulation whose purpose is to protect non-smoking citizens from the hazardous effects of second-hand smoke (Katz, Reference Katz2005, pp. ii33–34).

Related to claims that smoke-free areas violate property rights, the tobacco industry has also asserted that they violate the rights to commerce and economic freedom. Mexico's federal tobacco law, approved in February 2008, has been challenged by numerous restaurants, hotels and other service providers with close ties to the tobacco industry on the grounds of undue restrictions on the right to commerce and other fundamental rights (Cabrera and Madrazo, Reference Cabrera and Madrazo2010). Similarly, the Chamber of Commerce in Guatemala challenged the Guatemalan Smoke-Free Places law on the grounds that it restricted economic freedom (Cabrera and Madrazo, Reference Cabrera and Madrazo2010).

The right to economic freedom is wide-ranging and many constitutions afford a freedom for industry, commerce and work (O'Neill Institute for National and Global Health Law, 2011). The tobacco industry has invoked these provisions to argue, for example, that restrictions on smoking in public places are harmful to competition and to the exercise of lawful economic activity.Footnote ³⁹ But, similarly to the arguments developed above, these arguments fail any balancing test due to the overwhelming interest in protecting the public's health from tobacco use and exposure to second-hand smoke.Footnote ⁴⁰

This line of argument does not look promising for the tobacco industry. In a 2010 decision, the Guatemalan Constitutional Court upheld a smoke-free law, basing its decision, in part, on the Guatemalan government's obligation to protect the right to health and the right to life.Footnote ⁴¹ The Constitutional Court resorted to these rights as enshrined in both Guatemala's constitution and in the international human rights treaties that Guatemala had ratified, such as the ICESCR.Footnote ⁴² In an inclusive and comprehensive definition of the right to health, the Guatemalan Court states:

In this case, the tobacco industry overstates the reach of freedom of commerce. Freedom of commerce can be limited by the state's obligation to protect other rights. When addressing the argument brought up by the chamber of commerce regarding the unreasonable limitation to the right to freedom of commerce, the Constitutional Court of Guatemala states that such violation does not exist. The Court holds that the challenged law does not prohibit the manufacture, production, distribution or commercialisation of tobacco products; its objective is not to regulate those activities.Footnote ⁴⁴ The purpose of the law is to regulate tobacco consumption to protect the right to health and life of consumers and non-smokers.Footnote ⁴⁵ Therefore, the essential content of the right to economic freedom is not unreasonably affected.

The Guatemalan Constitutional Court carried out a thorough analysis of the arguments raised by the chamber of commerce in challenging the smoke-free law. The Court resorted to international human rights treaties, such as the ICESCR, but more importantly it expressly referred to the FCTC, and to Article 8 of the FCTC, to develop its reasoning. The Court clearly understood the relationship between different rights, e.g. the right to freedom of commerce and the right to health, and correctly applied a proportionality test.

Bans on advertising, promotion and sponsorship

Many states have enacted legislation to ban advertising, promotion and sponsorship by the tobacco industry, as the FCTC requires. The tobacco industry has strategically challenged these bans on several grounds based in individual rights rhetoric – both the rights of smokers and the industry's investment, trade, property and speech rights. Below, we focus on commerce and free expression, showing why tobacco industry claims fail under a proportionality test.

As with smoke-free place laws, the tobacco industry argues that bans on advertising, promotion and sponsorship infringe upon its right to freedom of commerce.Footnote ⁴⁶ However, commerce arguments are not entirely accurate, as the essence of the right to commerce and economic freedom remain unaffected by tobacco control. The existence of a right does not render a country unable to regulate any aspect touching on that right, provided the regulation does not infringe upon the most essential features of the right.Footnote ⁴⁷

Advertising laws do not interfere with the economic activity itself, that is, buying, producing and selling tobacco products.Footnote ⁴⁸ Corporations remain free to engage in these activities, but the state retains the power to regulate those activities to protect the public's health (Gostin, Reference Gostin2008, p. 26). Similar levels of commercial regulation exist for other legal, but dangerous, products, including firearms, alcohol and prescription drugsFootnote ⁴⁹ (although tobacco is certainly the most hazardous consumer product, without any beneficial effect). Notably, the FCTC embraced this reasoning, at it does not call for a ban on tobacco, but rather requires strict regulation. The FCTC calls for states to intervene and regulate tobacco products to create a ‘passive market’, one which is ‘regulated and discouraged’ (Uprimny and Castillo, Reference Uprimny and Castillo2009, p. 5).

In 2010, the Colombian Constitutional Court embraced this reasoning in D-8096 - Sentence C-830/10, where the Court upheld the constitutionality of a total ban on tobacco promotion and sponsorship. The tobacco industry claimed that the regulation was unlawful state interference with the individual right to property and freedom of commerce. According to the Constitutional Court, the state has the capacity to intervene in commerce by regulating promotion of a product without impacting the manufacturing or distribution of the product. The Court determined that a ban on promotion and sponsorship did not directly affect economic freedom.Footnote ⁵⁰ This decision follows a 1994 precedent, in which the Court emphasised the importance of the state obligation of actively promoting citizens' rights: ‘it is only by limiting economic freedoms in a reasonable and proportionate fashion that the State will be able to contribute to the achievement of a fair economic, political and social order (preamble) and to fulfill the so-called second generation human rights or welfare human rights.’Footnote ⁵¹

Corporate rights to economic freedom, commerce and property are not absolute. The state retains the power and duty to regulate corporate freedoms to safeguard the health, safety and wellbeing of the population. Where the tobacco industry uses fundamental commercial rights rhetoric to attempt to thwart sound tobacco regulation required by international law, tobacco control advocates must assert the more compelling human right to health, bolstered by FCTC obligations.

In addition to arguing that regulation of advertising, promotion and sponsorship violate the right to commerce, the tobacco industry argues that it impermissibly restricts the freedom of expression. Commercial speech, however, also is not absolute, and has a lower level of protection than political, artistic and social discourse.Footnote ⁵²

The tobacco industry argues that the fundamental right of freedom of expression protects its ability to advertise and promote tobacco products through the media and other outlets. Despite the clearly commercial purpose of the message, the industry argues that its communications to consumers are protected under international human rights law and national constitutions.Footnote ⁵³ In making such arguments, the industry conflates its advertising with the social and political speech traditionally protected as a fundamental right.

The industry raised these free-speech claims in Argentina and Brazil (O'Neill Institute for National and Global Health Law, 2011). But these claims misrepresent the principle of freedom of expression as enshrined in human rights law and national constitutions. Free speech on matters political, social and artistic expression is protected because of its importance to society and democracy. In contrast, commercial speech intended to promote a product does not have the same fundamental connection to a functional democratic society. The purpose of tobacco promotion is to obtain a profit for the company and not to add to the free exchange of ideas. Although commercial speech allows individuals to gather information about goods and services, it is not the same as an exchange of information and ideas in a democracy, ranging from politics and society to art and culture (O'Neill Institute for National and Global Health Law, 2011). As such, commercial speech shares a greater connection with commercial freedom than with freedom of speech, and courts are willing to provide less protection to commercial speech than to other forms of expression.Footnote ⁵⁴

Argentinean courts have contrasted protected speech to commercial speech and defined commercial speech as the ‘expression of ideas relating to only the issuer's economic interest and audience’, linked to a ‘commercial contract proposal’. Commercial speech is merely a component of the underlying economic activity promoted and the state can regulate the promotion of that activity to the same extent that it can regulate the activity itself.Footnote ⁵⁵ As seen before, this was also the Colombian Constitutional Court's approach to determine whether a comprehensive ban violates the constitution. Under such a definition of freedom of expression, tobacco control regulations fall well within the mandate of government power.Footnote ⁵⁶

Tobacco control arguments – the fragility of industry claims to commerce and speech, and the greater power of the state to prevent illness, suffering and early death – can be used as a sword as well as a shield. That is, tobacco control arguments can be used to compel governments to enact rigorous regulations. The right to information, especially as related to the right to health (informational accessibility),Footnote ⁵⁷ requires states to take all appropriate measures to ensure that industry advertising, promotion and sponsorship of tobacco products does not obfuscate the profound health hazards of tobacco smoking.

The High Court of Bangladesh made this connection in 1999, when it found that British American Tobacco's ‘Voyage of Discovery’ promotional campaign ‘was unconstitutional because the yacht [used in the promotional campaign] constituted an advertisement for the tobacco company, [and] any cigarette advertisement without appropriate health warning offended the constitutional right to life’ (Gostin, Reference Gostin2007b, p. 2539).Footnote ⁵⁸

The future of human rights and tobacco control

As we have argued throughout this article, human rights and tobacco control are mutually reinforcing frameworks, supported both by human rights law and by the FCTC – two complementary regimes in international law. Using human rights can be effective not only in defending tobacco control laws, but also in affirmatively advancing tobacco control at the national level. The FCTC shapes the content of the right to health, and health-related rights, such as the right to life and a clean environment, as well as the right to information. Finally, regional and international human rights systems can also provide an avenue for monitoring the implementation of the FCTC. While the FCTC Conference of the Parties develops a mechanism to monitor implementation of the FCTC, international and regional human rights systems can monitor the implementation of FCTC duties.

Constitutional court decisions ranging from Colombia and Guatemala to India that have upheld tobacco control laws and driven tobacco control reform show great promise. There seems to be a shift both in how the public perceives tobacco control and also in how courts interpret tobacco control norms in line with human rights. In response, the industry is moving vigorously towards defending their corporate interests, challenging state powers to protect the public. Tobacco industry claims are not simply based on the rights of commerce and speech, but now include trade, investment and intellectual property treaty rights.

In a particularly disturbing case, Phillip Morris International (PMI) recently filed an arbitration request against Uruguay in front of the International Centre for Settlement of Investment Disputes (ICSID), challenging Uruguay's health warnings regulations. Not only is it alarming that the tobacco industry would challenge a sovereign state's public health regulations (which are in fact mandated under international human rights law as well as the FCTC), but also that PMI would challenge a developing country such as Uruguay.

Courts all over the world are moving towards recognising the link between human rights and tobacco control, and are deciding cases in favour of tobacco control laws over industry interests. Importantly, there is also growing international support that would push states to make this connection. For example, in October 2010, the Directing Council of PAHO issued a resolution on health and human rights urging states to ‘strengthen the technical capacity of the health authority to provide support for the formulation of health policies and plans consistent with the applicable international human rights instruments related to health’ (Pan American Health Organization, 2010). The tobacco control movement needs to capitalise on this momentum and work actively to strengthen the connection between human rights and tobacco control, both in litigation and in policy development.