The secret tobacco conference starts today

The WHO's secretive international tobacco conference COP9 starts today, online only and with the public barred from watching, let alone participating. COPWATCH will be doing its utmost to find out what's going on. Keep an eye on it.

In the meantime, I'd like to share an excellent article I recently came across in the Fordham International Law Journal called Administering the Mark of Cain: Secrecy and Exclusion in the FCTC Implementation Process. The author, Gregory F. Jacob, looks at the issue from the perspective of democratic accountability and fair representation. I recommend reading the whole thing, but here are some of the more important passages.

On exclusion...

The FCTC’s stated objective is to progressively reduce tobacco consumption “by providing a framework for tobacco control measures to be implemented by the Parties at the national, regional, and international levels.” That goal has significant economic implications that impact groups ranging from tobacco farmers to wholesalers to importers - yet blanket bans on public and media access have wholly excluded impacted groups from having any voice in, or even the ability to monitor, ongoing deliberations. In a clear and unabashed exercise of viewpoint discrimination, only favored NGOs that uniformly espouse swift and universal eradication of all tobacco products without regard to economic consequences have been exempted and allowed to participate in implementation proceedings. Even more extraordinarily, the FCTC’s “Conference of the Parties” (“COP”)—the international lawmaking body charged with elaborating and implementing the FCTC2—has advocated increasingly strident measures designed to render tobacco interests, and all who associate with them, international pariahs who are not merely excluded from deliberations but also incapable of speaking: to international negotiators, to domestic lawmakers, or even to the consumers of their products.

On secrecy...

.. You might be thinking that if all this has really been happening, surely you would have heard of it before. But the truth is that the aforementioned public and media bans have proven very effective at discouraging mainstream media coverage of FCTC proceedings. What news organization has the cash to spare to send a reporter overseas to cover an event into which the reporter will not be admitted, to write a story that is virtually guaranteed to be limited by a near-total lack of access, concerning a treaty that few among the reading public even know about? 

While meetings of the General Assembly are, on rare occasion, closed to public observation for security reasons, the UN has demonstrated its commitment to transparency in recent years by using modern technology to stream nearly all General Assembly meetings on the Internet.

Nor is the UN the only relevant example; openness and transparency have also proven effective for implementing multilateral framework conventions. COP21 of the Climate Change Framework, for example, has been lauded as an immense success, in no small part because it employed a process that valued inclusion, debate and diversity of opinion. Proceedings were entirely open to journalists and accredited intergovernmental bodies,100 and the COP allowed thousands of organizations to be accredited, including industry groups representing a wide variety of viewpoints. In addition, a large space called the Climate Generations Area was set up at COP21 so that civil society could openly share opinions, debate, and even (gasp!) attempt to influence the Parties who were actively involved in the negotiations. 

On the dubious need for an international treaty on tobacco...

.. as my I argued in my previous article on the subject, the FCTC is peculiar among multilateral treaties in that it “has remarkably little to do with international relations, and primarily covers matters pertaining purely to domestic law. Virtually every provision of the treaty could be enacted into law by willing countries, even in the treaty’s absence.” The individual work of the sovereign parties to the Convention at the national level is thus necessarily the primary driver of treaty implementation.

.. As it turns out—and as Putnam might have predicted— this collection of public health ministers has shown a marked proclivity to use the treaty-making and implementation process to achieve domestic policy goals that they have previously proved unable to convince their home governments to adopt through domestic lawmaking processes. Some delegations have even expressly stated this intention, arguing that various treaty provisions should be tightened or strengthened so that their home governments could not interpret their way out of them. These delegations, in other words, are (at least occasionally) using the COP implementation process to impose international law obligations on the nations they represent that their home governments would on balance prefer not to have.

.. Like the COP delegations, the Secretariat and the NGOs are dominated by public health advocates. These advocates have extensive scientific knowledge concerning the medical and sociological consequences of tobacco use and the relative effectiveness of various cessation strategies, but they have little or no training in or knowledge of regulatory law, trade policy, intellectual property, job creation, or other economic impacts of tobacco control measures. Those, of course, are precisely the competing interests that domestic governments typically must grapple with, analyze, and balance in developing workable tobacco policy. From the perspective of the Secretariat and the NGOs, the COP thus represents a unique opportunity to sidestep the turbulent cut and thrust of domestic lawmaking, and to instead make their case to an international supra-legislature composed primarily of public health ministers that fundamentally agree with them on all core issues.

On the silencing of opposing views...

.. In light of this tripartite, homogenous, coalition of the willing— health minister delegates, partisan Secretariat, and aligned NGOs— the one thing that might threaten to disrupt a steadfast march toward adoption of their preferred policy agenda would be a reintroduction of the voices of those economically impacted interests that have historically provided a policy counterbalance in domestic politics. Like many embattled interest groups before them, the anti-tobacco coalition determined at the outset of the FCTC implementation process that one of the easiest ways to ensure achievement of their policy goals would be to simply ban all of the groups they perceive to be “the opposition”—ban them from participating, ban them from watching, ban their domestic governments from talking to them, ban the public (which just might after all have been infiltrated by the forces of the opposition!), and ban the media from covering the vast majority of FCTC proceedings.

.. Perhaps most troubling of all, Article 5.3 of the FCTC, which received scant attention during the drafting of the Convention, has been weaponized and transformed into something it was never intended to be: a mandate that anyone who dares even to associate with tobacco interests be treated as pariahs who must be completely excluded from participating in international and domestic lawmaking processes relating to tobacco control. Even Interpol (yes, Interpol!) has been prohibited from providing input to the COP on combating illicit trade in tobacco products, for the sole reason that it has the temerity to work with the tobacco industry to track tobacco shipments.

..At COP5, however, the proceedings of virtually all subsidiary body meetings were conducted in a manner that did not conform to these authorized formats. Without amending the governing Rules of Procedure, the COP implemented a new and unauthorized meeting format that excluded the public and the media, but permitted favored observers and NGOs to attend and participate. The justification given for this departure from the rules was that the tobacco industry might otherwise send observers to watch (yes, watch!) the proceedings. Exclusion of the public and the media was thus the only way to ensure that the tobacco industry could reliably be kept out.

.. Dr. Vera da Costa e Silva, Head of the Convention Secretariat, made this approach plain in her opening speech to COP7:

There is another observer here too, although its representatives may not always wear badges. The tobacco industry takes a very keen interest in COP meetings and makes every effort to insinuate itself into delegations and proceedings. If anyone doubts the importance of what we do here, always remember the industry’s malevolent presence and the strong need for transparency.

(Transparency for tobacco interests, that is—not for the Secretariat, the NGOs, or the COP.) The Framework Convention Alliance echoed a similar sentiment in its closing words for COP7, lamenting “delegates who are faced with tobacco industry interference in their home countries”—“interference” being the term that the Alliance regularly use to describe any expression of opposing viewpoints.

On the use and misuse of Article 5.3. of the treaty (which says health policy should be protected from the 'vested interests of the tobacco industry')...

.. In recent years, Article 5.3 of the FCTC has emerged as the primary international law weapon of those seeking to gag and exclude tobacco interests. As one NGO put it, “the FCTC includes a critical provision—Article 5.3—that recognizes the tobacco industry’s irreconcilable conflict of interest with public health. The article is the backbone of the treaty; the treaty cannot succeed if industry interference is not rooted out.” Not expressly stated, but implicit in these strategies, is the knowledge that it is far easier to win a policy debate if there is no opposing interest—for example, no poor tobacco farmer whose livelihood is at risk of being lost if policy changes are implemented without due regard for transitional needs—to express economic, due process, free speech, liberty, or other similar concerns.

.. No delegation participating in the INBs ever suggested that Article 5.3 should be read to mandate a general ban on all tobacco industry participation in (or even passive observation of!) international and domestic policymaking relating to tobacco control. Such a provision could never have been adopted, and the final text says nothing of the sort. The final language of Article 5.3 is, however, not a model of clarity, and advocates (led by the Secretariat and the NGOs) have stepped into the interpretive void and twisted the nebulous provision’s meaning beyond recognition to serve their own ends.

.. Economic interests should of course always be transparently disclosed so that conflicts of interest can be identified and considered when crafting policy, but it is senseless for policymakers to cut themselves off entirely from useful sources of data and information. And while advocates such as Dr. da Costa e Silva and the Convention Secretariat are of course free to label tobacco farmers a “malevolent” force if they wish, even such disfavored groups have civil rights of participation and association that are guaranteed by (among other treaties and conventions), the Universal Declaration of Human Rights. These fundamental international law guarantees have been given next to no weight in COP proceedings, however; when a group of tobacco farmers showed up outside of the COP7 meetings in Delhi to peaceably protest their continuing exclusion from deliberations, the Convention Secretariat called upon security to round them up and bus them miles away, to a location where COP delegates could neither hear nor see them.

And so, in conclusion...

.. While I am sympathetic to the core public health goals being pursued by the anti-tobacco coalition, this article sounds a clarion call of warning for those who care about the process by which international law is made. Dislike of the tobacco industry should not blind us to the deeply problematic means increasingly being employed by the dominant FCTC interest groups to warp international and domestic lawmaking processes in ways they believe will help them achieve their short-term policy goals. 

.. After years of observable practice, it is now also clear that the radical campaign of secrecy and exclusion that the Convention Secretariat and like-minded NGOs have been pursuing is, at times, producing decidedly perverse policy outcomes. When efforts to end child labor and to provide employment to refugees are sacrificed at the altar of isolating and stigmatizing tobacco interests, when Interpol is banned from participating in discussions about ending illicit trade because of its perceived taint from innocuous collaboration with tobacco companies on tracking their products, and when a resolution urging that governmental regulations of e-cigarettes and vaping devices should be supported by evidence-based science is voted down out of concern that science would not support the desired regulatory outcomes, a re-examination of the implementation process that is currently being employed is clearly called for. Indeed, it is demanded.