The World Health Organization's Framework Convention on Tobacco Control: An Analysis of Guidelines Adopted by the Conference of the Parties

Abstract

Framework treaties are increasingly used to address issue-areas of global concern like climate change, ozone depletion and tobacco control. These treaties provide the general platform for international cooperation while empowering States Parties to develop specific mandates for action through subsequent treaties (protocols) and interim decisions, often in the form of guidelines, by the treaty’s governing body. This Article analyzes guidelines adopted by the Conference of the Parties, the governing body of the World Health Organization’s 2003 Framework Convention on Tobacco Control, for Articles 5.3, 8, 11 and 13 dealing with, respectively, protection of public health policy from tobacco industry interference, protection from exposure to tobacco smoke, packaging and labeling of tobacco products and comprehensive bans of tobacco advertising, promotion and sponsorship. Competing interpretations of treaty and guidelines’ language raises questions about the effect of the guidelines as binding treaty law, customary international law or “soft law.” Applying traditional canons of treaty interpretation, this Article concludes that the guidelines, as decisions of the Conference of the Parties, are a “subsequent agreement regarding the interpretation of the treaty or the application of its provisions.” States Parties are therefore under an obligation to implement treaty provisions in light of the guidelines. While the language of the guidelines is not always mandatory, the guidelines inform the general obligation to comply with the treaty in good faith while specific provisions of the guidelines give rise to mandatory action. The Article also outlines alternative monitoring, enforcement and implementation mechanisms which may give the guidelines force as domestic law. The purpose of the Article is not only to clarify obligations imposed by the FCTC and the COP, but also to offer a comparative lesson as framework treaties increase in use and influence.