Seixas Correa tables new chair’s text on tobacco treaty

Geneva, 15 Jan (Chakravarthi Raghavan) - The Chairman of the Intergovernmental Negotiating Body for a WHO draft framework convention to control tobacco, made public Wednesday a revised text for the consideration of the INB at its 6th session here on 17-28 February.

At a press conference, the chairman, Amb. Luiz Felipe de Seixas Correa of Brazil, and the WHO Director-General Mrs. Gro Harlem Brundtland were confident that the forthcoming session will conclude a framework treaty on the basis of the text, and that after consideration and recommendation from the WHO Executive Board, the draft framework convention would be adopted by the World Health Assembly in May and opened for signature.

In a covering letter, Seixas Correa insisted that the draft text was “not a soft or hard text, a weak or strong text (but) an effective text based upon sound public health principles and solid commitments regarding the international dimensions of national legislation and international cooperation.

At a press conference, the Chairman said that the framework draft had not attempted to resolve the conflicts between this treaty and the WTO agreements, given that such an approach was not likely to lead to results.

Mrs. Brundtland said that the aim was to set up a framework to enable national actions, and strengthen the international commitments through protocols. She hoped that one of the first protocols could deal with the problem of ‘illicit trade’.

“We have made excellent progress thus far and I am confident we will be able to move the process ahead to prepare the convention for adoption by the next Assembly,” the Brazilian envoy in a WHO press release along with the revised chair’s text.

“We must move beyond country, subregional and regional perspectives and work for the collective interest. The text is an attempt to take into account the views and suggestions during the last round of negotiations. But primarily the aim of this text is to ensure that we end up with a treaty which is an effective tool for improving public health.”

Correa drew attention to the provisions about advertising and said the framework provisions would enable a country, that has national bans on advertising, to be able to ensure and keep such advertising aimed at its market from abroad. This would also apply or be possible in respect of vending machines, he said.

However, the chairman conceded that this would not resolve any problems that may be raised in disputes at the WTO under the guise of obligations of countries in terms of advertising, marketing etc. It would not possible to deal with the problem merely through the WHO, he said.

The provisions of the framework were only ‘minimal’ obligations, and did not any way prevent a country from having stricter requirements for control of tobacco.

The revised text has eliminated all references to the relationship between the WHO framework and other international treaties (and thus the WTO).”These matters are adequately addressed by the Vienna Convention on the Law of Treaties,” Seixas Correa has said in his covering note.

The preamble to his text also reiterated the paramount importance of health, he added.

However, observers noted that neither the ‘health exception’ in the GATT/WTO nor the health issues highlighted in the Doha Declaration on TRIPS and Public Health have prevented the majors from raising objections against actions of countries to safeguard public health.

The kind of debates and proposals that have come out after the 2001 Doha declaration, in the year-long discussions at the WTO, appear to have only strengthened the growing view in civil society that the WTO cannot be reformed and made more humane from pursuit of the neo-mercantilist interests of the major corporations and their sponsoring governments, and this is leading to a strengthening of the movements against the WTO, observers noted.

The international liability provisions of the treaty are perhaps pretty weak, with Art.19.1 reading “The Parties shall consider taking legislative action and making use of or promoting their existing laws to deal with liability and compensation for the purpose of tobacco control.”

To a comment that this was worst kind of best endeavour clause, Amb. Seixas Correa said that he would welcome any better formulation, but that the state of international law, as noted by the international law commission, made it very difficult to go beyond such a general statement and call for international cooperation.

Dr Derek Yach, a WHO official, drew attention to Art.4.5 (Article on guiding principles) which says “The tobacco industry should be held responsible for the harm to health caused by tobacco products that is attributable to it as determined by each party within its jurisdiction.”

In his explanatory covering letter on the issue of liability, the chairman has said that although addressing questions of liability at international level is complex, most delegations agree it is necessary to include the issue in the framework convention in order to emphasize both the integral role of liability in an overall tobacco-control regime and importance of having a structure at country level to address the issue internally and to cooperate on exchange of information.

The rationale for including this article is thus to indicate importance of liability and compensation for tobacco control, and the title changed to ‘liability’, and the references to ‘compensation’ had been deleted since ‘liability’ is a much wider concept than ‘compensation.’

On tobacco advertising, the new language for the Article (Art.13) reaffirms that everyone is committed to restrictions, and allows those who wish to eliminate cross-border advertising to do so in accordance with their own internal legislation. It also encourages countries to proceed to a total ban and translate their commitments into an international obligation.

The Article in para 3, provides that Parties to the framework that have imposed a complete ban on certain forms of tobacco advertising are fully empowered to ban such cross-border advertising of tobacco products, in accordance with their national law. In para 4, it says “Parties shall consider the elaboration of a protocol setting out appropriate measures for the elimination of cross-border advertising, promotion and sponsorship that require international collaboration.” – SUNS5263

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