The TPP talks and tobacco: Obligations vs rights?

The latest round of Trans-Pacific Partnership negotiations in Brunei provided a dramatic reminder of how free trade agreements can ride roughshod over human rights. Shila Kaur explains.

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ARTICLE 25(1) of the Universal Declaration of Human Rights states: 'Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.'

The UN Guidelines for Consumer Protection and Consumers International list eight basic consumer rights, including the rights to safety, information, choice, be heard and a healthy environment.

The World Health Organisation (WHO)'s Framework Convention on Tobacco Control (FCTC), the world's first public health treaty, addresses the global tobacco epidemic through a variety of measures to reduce tobacco demand and supply, including price and taxation (Article 6), exposure to tobacco smoke (Article 8), packaging and labelling of tobacco products (Article 11), tobacco advertising and sponsorship (Article 13), cessation and treatment (Article 14), illicit trade (Article 15), and sales to minors (Article 16). With 177 member parties, the FCTC is one of the most successful treaties ever established.

Free trade agreements like the Trans-Pacific Partnership (TPP), driven by US economic interests, ride roughshod over human rights, consumer rights and a treaty, in a shameful show of complete and utter disrespect for UN instruments and the sovereign rights of nations.

In a skirmish with the United States that has caught the attention of the international public health community, Malaysia's position on the TPP talks is noteworthy. Malaysia has made a brave stand to protect the sovereign health rights of its citizens by blocking the United States' attempt to lift trade restrictions on tobacco products. In a face-off in Brunei in August this year during the 19th round of negotiations towards the TPP, Malaysia put a spoke in the wheel when it asserted its right to regulate the sale of foreign and potentially far cheaper tobacco products.

Also, Malaysia's position over tobacco in the TPP resonates with civil society demands to curb tobacco industry interests.  As one of the 177 parties to the FCTC, Malaysia has worked hard to uphold the commitments enshrined in the treaty. The TPP will in effect dismantle the efforts Malaysia has made to date to reduce the burden of disease and death caused by tobacco products. 

Interestingly the United States is the only one among the 12 countries negotiating the TPP that has yet to ratify the FCTC.

Malaysia signed the FCTC on 23 September 2003 and ratified the treaty on 16 September 2005.

To reduce the burden of tobacco-related disease and death, Malaysia has committed to implementing national tobacco control policies based on the requirements of the FCTC.

Prior to the FCTC, the Malaysian government enacted the Control of Tobacco Products Regulation 1993, which was strengthened in 2004 to prohibit tobacco product advertisement and sponsorship, restrict smoking in designated areas, ban sale to minors, and control the labelling, packaging and sale of tobacco products. Since ratifying the FCTC in 2005, Malaysia has made progress in developing and implementing stronger, more comprehensive tobacco control strategies supported by national anti-tobacco campaigns.

The TPP raises issues of obligations overriding rights.  The 'compromise' that the United States offers in the TPP negotiations is laughable and adds insult to injury: 'If any tobacco-related trade dispute were to arise due to the imposition of health-related regulations, health officials would be "encouraged" to engage in consultations for tobacco control and public-health efforts.'  No country should be placed in a position where its highest officials must negotiate for the nation's public health.  No country should be party to a treaty where the health rights of its citizens are traded off for the economic benefit of another country.  An agreement that puts a premium on trade and profits favouring one nation over the public health of numerous other nations, not only disrespects national sovereignty but also defies all human rights principles.  It is in effect an agreement that is non-negotiable and unacceptable.

No country should be party to a treaty where the health rights of its citizens are traded off for the economic benefit of another country. 

The United States' position on tobacco being given no special consideration in the TPP is clearly unpopular as the health implications are profound. The proposal has been severely criticised at both the highest policy and civil society levels in the US, including by New York Mayor Michael Bloomberg, Co-Director of the Centre for Policy Analysis Ellen R Shaffer and Director of the Citizens Trade Campaign at Public Citizen Arthur Stamoulis. All three have decried the public health implications of lowered tariffs on cigarettes and tobacco products. There is clear consensus that the proposals to lift trade restrictions will be counter-productive to public health and violate tobacco control measures.

US critics aside, the Malaysian government's proposal has also reportedly been viewed favourably by Japan - a positive sign given the latter's economic strength.

The treaty as it currently reads fails to prevent tobacco control measures from being challenged as violations of trade agreements. By making a stand against the United States' attempt to lift trade restrictions, Malaysia is also sending a clear message to the tobacco industry: it will not tolerate tobacco control measures being challenged as trade violations. In the past the tobacco industry has taken developing countries, which lack financial and legal resources, to court based on their tobacco control regulations. In view of all the ground that it has covered with regard to the FCTC and tobacco regulations, Malaysia's stand is understandable. What remains is for the rest of the 12 countries in the TPP talks to mount similar objections.  

While it is clear that the United States is willing to sacrifice public health and welfare for economic interest, what is outrageous is its presumption that other nation states will share this position. The stalemate in the TPP talks is a sure signal that nations will not be coerced by US tactics. The positive fallout from the stalled talks is that the average consumer in Malaysia is beginning to sit up, take notice and follow the TPP negotiations - a development that civil society groups welcome.         

Shila Kaur is a health consultant with the Third World Network.

*Third World Resurgence No. 276/277, August/September 2013, pp 15-16