Lessons from the WTO Plain Packaging reports: The use of the evidence-based WHO Framework Convention on Tobacco Control as evidence in international litigation

Introduction

The WTO Plain Packaging reports have finally been published. The four reports (merged in a single document) contain the findings of the WTO panel in the disputes launched in 2012-2013 by Honduras, Dominican Republic, Cuba, and Indonesia. The disputes were directed against some tobacco control measures adopted by Australia – so-called ‘the plain packaging’ (TPP) laws. In a nutshell, TPP mandates that all tobacco products be sold in unattractive standardised packaging, thereby curtailing the use of colours, design and trademarks by tobacco manufacturers. As it was already leaked one year ago, the panel has ruled in favour of Australia.

The 884 pages of the final reports contain a lot of food for thought, and will keep many of us busy for long. This post focuses on a relatively narrow issues, namely the role of the Framework Convention on Tobacco Control (FCTC) in the case.  Despite being often overlooked in mainstream international scholarship, the FCTC is a remarkable treaty. It is the first (and so far, only) treaty ever negotiated under the auspices of the World Health Organization (WHO). Adopted by the World Health Assembly in May 2003, it has now reached the massive number of 181 ratifications. The FCTC is also a living treaty: it established a set of institutions, including a Conference of the Parties (COP) that meets biannually and has adopted 9 sets of guidelines.The FCTC was conceived in the ‘90s as an ‘international regulatory strategy’ to ‘promote national action on tobacco control’ (in the words of one of its main promoters, Allyn Taylor), in the face of the growing tobacco epidemic. To this end, the treaty (and later its guidelines) have been developed as ‘evidence-based’ instruments, i.e. as texts that require the adoption of tobacco control measures whose effectiveness has been established by evidence (see Taylor and Bettcher 2000). The set of measures is a comprehensive one, encompassing measures for the reduction of supply and measures for the reduction of demand of tobacco products. TPP measures are also part of this comprehensive set; specifically, they are recommended by the Guidelines to Article 11 and in the Guidelines to Article 13 of the FCTC.

In addition to their role in domestic implementation, the FCTC and its guidelines have proved to be useful instruments in the international disputes launched against the tobacco control measures adopted by its parties (see my earlier report as well as the more recent article by Zhou, Liberman and Ricafort). In some cases, the FCTC and its guidelines have been relied upon for their evidential value, while in others they have been considered ‘evidence’ by reason of their ‘evidence-based’ nature. The TPP reports prepared by the WTO panel are the latest cases in this series. The following sections review the approach taken by the panel on the role of the FCTC, and briefly compare it to the previous international disputes.

The role of the FCTC and its Guidelines in the WTO Plain Packaging reports

Since the first WTO TPP disputes were launched in 2012, many scholars have weighted in to discuss how Australia could defend its TPP measures. A part of this scholarship has specifically discussed the possible role of the FCTC and its guidelines in the disputes (see, inter alia, Voon 2013, McGrady and Jones 2013, and Gruszczynski 2014). The TPP reports have confirmed some of these earlier analyses.

The FCTC guidelines as international standards under Article 2.5 of the Agreement on Technical Barriers to Trade

The first analysis of the role of the FCTC and its guidelines in the TPP disputes is provided with respect to the claims of violation of Article 2.2 of the Agreement on Technical Barriers to Trade (TBT Agreement). Australia contended that the Guidelines to Article 11 and the Guidelines to Article 13 of the FCTC could be considered ‘relevant international standards’ under of the Article 2.5 of the TBT Agreement, and that TPP measures could be considered ‘in accordance with’ those standards. Accordingly, TPP measures would be ‘rebuttably presumed not to create an unnecessary obstacle to international trade’ (para 7.257).

The panel carried out a long analysis of Australia’s argument (pages 197-252). The conclusion was negative, as the panel found that it was not clear which parts of the FCTC guidelines would ‘form a “document” encapsulating the totality of the “rules, guidelines or characteristics”’ on TPP (para 7.330). Rather, the FCTC guidelines appeared to be drafted to give guidance to the parties on how to implement the FCTC obligations, and, to that end, they provided for a good degree of ‘flexibility’ (para 7.396).

This was the first time that a WTO panel was asked to assess the existence of international standards under Article 2.5 of the TBT Agreement (para 7.264). Nevertheless, a door has been left open for future cases: the panel was careful to limit its findings only to TPP (para 7.397, and para 7.417), leaving the possibility that different parts of the FCTC guidelines could constitute an international standard under Article 2.5 of the TBT Agreement.  

 Evidential value

Once it concluded the analysis on the FCTC guidelines as international standards, the panel clarified that the ‘determinations’ made with respect to Article 2.5 of the TBT Agreement ‘do not imply any determination concerning the relevance of the FCTC, or any its instruments… to other aspects of our analysis’ (para 7.403). After summarising the arguments made by the parties to the disputes on the relevance of the FCTC (para 7.406-7.411), the panel noted that ‘it is not uncommon in WTO disputes for parties to refer to, and panels and the Appellate Body to rely on, non-WTO international instruments as evidence of fact’ (para 7.412; emphasis added). In addition to citing examples from the well-known WTO disputes EC-Asbestos and EC-Seal Products (footnote 1254), the panel remarked that the FCTC and its guidelines had already been ‘relied upon as evidence’ in two previous WTO disputes: Dominican Republic–Import and Sale of Cigarettes, and US-Clove Cigarettes (para 7.412-7.415).

The panel confirmed that in the TPP disputes the FCTC and its guidelines could ‘inform, together with other relevant evidence before us, our understanding of relevant aspects of the matters with which they are concerned’ (para 7.416). Accordingly, the panel relied upon the FCTC and its guidelines as evidence of fact to support several of its findings (para 7.250, 7.664-7.665, 7.798, 7.1309, 7.1388-7.1389, 7.1457, 7.1527, 7.1509, 7.1594, 7.614, 7.1670, 7.1728, 7.2589,7.2595-7.2596, 7.2604). It should be stressed that all the references to the FCTC were cited along the other pieces of evidence submitted by the parties, and not as the only, or main, piece of evidence. According to WTO case-law, in fact, a panel has the duty to examine and consider all the evidence before it… and to evaluate the relevance and probative force of each piece thereof’ (para 7.517, quoting the Appellate Body report in the case Korea-Diary, para 137). This was also the approach of the panel in US-Clove Cigarettes. At the same, it is in fundamentally different form the approach taken by other international tribunals which have reviewed the legality of tobacco control measures recommended by the FCTC: an investment tribunal in the Philip Morris v Uruguay case, and the Court of Justice of the European Union. In carrying out their evidentiary assessment, these tribunals have used the FCTC, its guidelines and other COP documents as the main source of evidence, leaving aside many other pieces of evidence submitted by the parties.

Finally, it can be noted that to justify the fact that it would rely on the FCTC and guidelines as evidence, the TPP panel cited the fact that the FCTC has been ratified by more than 180 states, but it did not mention the fact that it is ‘evidence-based’ (para 7.416). Is this a mere missing reference, or is there an assumption that international consensus is the result of scientific evidence? The arguments of the parties’ and third parties’ submissions, by contrast, referred to the importance of the FCTC as an evidence-based instrument (see e.g. footnote 1253, para 7.2381). Moreover, the panel in US-Clove Cigarettes had clearly highlighted the ‘evidence-based’ nature of the FCTC (see e.g. para 7.230 and 7.414 of the panel report). It can be interesting to compare these justifications to the justifications given by the other international tribunals. The Court of Justice of the European Union highlighted that the FCTC and its associated instruments are based on the best available evidence, as well as the fact that they had been adopted with the consensus of the European Union and its Member States. The investment tribunal in the Philip Morris v Uruguay case, instead, seems to have mostly recognised the authority the amicus curiae briefs submitted by the WHO and the FCTC Secretariat as well as by the Pan American Health Organization, in which the FCTC and guidelines were presented as evidence-based. While all these international tribunals have recognised the evidential value of the FCTC and its guidelines, they seem to have done it for different reasons.

Inform the interpretation

In the TPP cases, the panel noted that, in addition to using them as evidence of fact, ‘non-WTO international instruments’ could also be used ‘to inform the interpretation of specific provisions under a covered agreement’ (para 7.412). In this respect, it referred to the famous WTO case US-Shrimp (footnote 1255). However, of all the references to the FCTC in the reports, none of them seems to have been made to interpret the provisions of the WTO texts.

Conclusions

The TPP reports confirms the trend that has developed since the WTO panel report in US-Clove Cigarettes: in international litigation, the FCTC and its associated instruments have proved more relevant for their evidential value than for their legal one.

This is due to many factors. First, often the disputes are launched by States that are not party to the FCTC (or, in the case of investment tribunals, by tobacco companies whose headquarters are in States that are not party to the FCTC). Second, many of the relevant provisions are found in the FCTC guidelines, whose legal status is not clear (see e.g. Liberman 2014). Third, for tobacco control disputes the evidentiary assessment is often one of the most challenging parts of the dispute (the TPP reports, for example, noted that the parties submitted an ‘unusually large’ volume of evidence, para 7.512). In this respect, the FCTC and its associated instruments can provide authoritative and well-accepted interpretation of existing evidence. Finally, relying on the

Giving more weight to the evidential than to the legal value of a treaty is an interesting and useful development. In spite of what the TPP panel said, the approach taken by the panels on the FCTC and its guidelines (in the cases TPP, US-Clove Cigarettes, and, more limitedly, in Dominican Republic-Import and Sale of Cigarettes) seems rather exceptional. To my knowledge, the only WTO case that would be comparable case is Brazil-Retreaded Tyres, where the panel relied upon the Basel Convention Technical Guidelines on the Identification and Management of Used Tyres to assess the existence of a risk (see report, para 7.81). The cases cited by the TPP reports are instead quite different. In EC-Asbestos, the panel referred to the 1962 ILO Convention as evidence that regulations restricting the use of asbestos was foreseeable (see report, para 8.295). In EC-Seals, the panel referred to the United Nations Declaration on the Rights of Indigenous Peoples and to the ILO Convention concerning Indigenous and Tribal Peoples in Independent Countries as evidence of the ‘recognized interests of Inuit and indigenous peoples’ (see report, para 7.295). In both cases, the relevant treaties have been cited as factual evidence, but not as scientific evidence (for a discussion on scientific fact-finding see Mbengue 2011, and Alvarez 2011).

In this respect, relying upon the FCTC and its associated instruments as scientific evidence seems inherently different from the other cases, and would deserve more analysis. What does it mean to have an evidence-based treaty (and evidence-based associated instruments)? The political science literatures provides for interesting discussions on evidence-based policy-making (see e.g. the recent contributions by Cairney 2016 and Parkhurst 2017). Are these discussions applicable to evidence-based international law-making? To what extent can the evidence of an evidence-based treaty (and its associated instruments) be considered evidence in international litigation?