Human rights as a tool for tobacco control in Latin America

Salud Publica de Mexico

Volumn 52, Issue SUPPL.2, 2010, Pages

  Cabrera, Oscar A ^a   Madrazo, Alejandro ^b  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

^b CENTRO DE INVESTIGACIÓN Y DOCENCIA ECONÓMICAS   (Mexico)

Author keywords

[No Author keywords available]

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EID: 78651247650     PISSN: 00363634     EISSN: 16067916     Source Type: Journal    
DOI: 10.1590/S0036-36342010000800026     Document Type: Article

References (35)

1. It is almost a recurring pattern that when countries decide to regulate and implement efficient tobacco control policies, i.e., when they decide to fulfill their obligations under international human rights law (e.g., right to health, right to life) vis-à-vis tobacco control, the tobacco industry challenges such policies. First, it will try to influence the legislative debate by claiming economic rights violations, such as against property rights or freedom of expression. Once such lobbying efforts fail and the government approves tobacco control regulations, the industry will challenge such regulations in court, often employing the same arguments used when lobbying the legislature. See, for example, Nobleza Piccardo S.A.I.C. v. Provincia de Santa Fe, 188/2006, Corte Suprema de Justicia de la Nación. [Supreme Court] (Arg.); Complaint for Cámara de Comercio de Guatemala v. Partial General Unconsitutionality, 2158-2009, Corte de Constitucionalidad de la República de Guatemala [Constitutional Court].
2. In Uruguay, the government has successfully defended its tobacco control regulations against industries arguments brought up in Court.
3. British American Tobacco (South America) Limited (Uruguay) v. Public Health Ministry. Tribunal de Apelaciones Civil de 6to Turno [Appellate Court], decision 2/2009 (Uru). At the same time, there are other cases that are currently pending decision.
4. Abal Hermanos S.A. v. Legislative Power and others, (constitutional challenge, arts. 9 y 24 de la ley 18.256) Suprema Corte de Justicia. [Supreme Court] (Uru.).
5. Fundamental rights is a broad term referring to universally conferred rights that are enshrined in both the domestic constitutions of individual countries (and/or their federated entities-such as the Bill of Rights in the United States or the so-called "dogmatic" sections of most civil law constitutions) and in international instruments such as the International Bill of Human Rights. Generally, "human rights" is used in the international arena and "constitutional rights" or "constitutional guarantees" in the national arena, but the nomenclature is not rigid. In this text, we use the terms "fundamental rights" and "human rights" indifferently to refer to fundamental rights, whether established in domestic or international legal instruments.
6. th edition. New York: West Group, 2004.
7. This is not to say that every country in Latin America has a strong judicature regarding fundamental rights. In general, judicial control and, more broadly, the rule of law are struggling projects in several countries in the region. In some cases, weak institutions and a highly formalistic legal culture are not the best scenario for innovative litigation (although there are some clear exceptions to this formalistic culture, e.g., the Constitutional Court in Colombia).
8. For example, the ICCPR protects the right to life, the right to freedom of expression, the right to be free from torture or to cruel, inhuman or degrading treatment or punishment, etc. On the other hand, the ICESCR, protects the right to health, right to education, right to adequate standard of living, among others. Article 12, International Covenant on Economic, Social and Cultural Rights: "1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. 2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: (a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child; (b) The improvement of all aspects of environmental and industrial hygiene; (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases; (d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.
9. See for example, UNFPA "The Human Rights based approach", available online: http://www.unfpa.org/rights/approaches.htm
10. Ferrajoli L. Derechos y garantías. La ley del más débil. 2nd edition. Editorial Trotta, 2001:37-41.
11. The doctrine of fundamental rights that has emerged denies that rights can be classified as demanding either positive or negative obligations from the State. Classic rights usually understood as demanding only abstention by the State - i.e. that it abstain from unjustifiably seizing property - also implicate multiple positive actions that the State must undertake - i.e. the State must provide courts of law that can adjudicate disputes between citizens over their property rights; the State must pay for public registries where property is publicly documented. On the other hand, the new understanding of fundamental rights posits that rights such as health and education often do involve the direct provision of public services by the State but also impose negative obligations, such as the obligation to provide such services in a non-discriminatory manner.
12. For a long time scholars and practitioners debated the nature of social, economic and cultural rights, whether they were "real" rights - justiciable and enforceable - and whether they impose concrete obligations on States. For example see, Abramovich V, Courtis C. Los derechos sociales como derechos exigibles. 2nd edition. Editorial Trotta, S.A., 2004. However, it has been the judiciary around the world that has ended this scholarly debate by considering social, economic and cultural rights enforceable and justiciable rights. As Malcolm Langford argues: the debate went from practice to theory, as courts around determined that social, economic and cultural rights impose concrete obligations on States, and more importantly, courts are entitled to finding States accountable for not fulfilling such obligations. Langford M. Social rights jurisprudence: emerging trends in international and comparative law. 1st edition. Cambridge University Press, 2009. For a more detailed and theoretical analysis of the legal nature of social, economic and cultural rights.
13. see, Sepúlveda M. The nature of the obligations under the International Covenant on Economic, Social and Cultural Rights. Intersentia, 2003.
14. In 2004, just as Mexico's Senate was ratifying the FCTC, Mexico's Ministry of Health subscribed an agreement with both Phillip Morris and British American Tobacco in which it agreed not to harden tobacco regulation or raise taxes on tobacco in exchange for a fixed "donation" in cash for every packet sold (see Madrazo A. Under the radar. Infra-constitutional powers of the executive: the case of tobacco regulation in Mexico. In: Roberto Saba, ed. El Poder Ejecutivo. Proceedings of SELA: 2006 June 8-11; Bogota, COL.) During the period in which the Ministry of Health-tobacco industry agreement, the Ministry of Health undertook a "cessation campaign" called Smoker's Paradise (El Paraiso de los Fumadores) in which it displayed all images the tobacco industry was banned by law from depicting: people smoking while doing sports, pregnant women smoking, parents smoking around their children, etc. All independent experts consulted by the authors who have watched the ad campaign agreed that rather than deterring people from smoking, it does quite the opposite. For a sample of this campaign, see http://www.youtube.com/watch?v=ZdS4a3fXRfo.
15. U.N. Econ. & Soc. Council [ECOSOC], Committee on Economic, Social and Cultural Rights, General Comment No. 14 (2000), The Right to the Highest Attainable Standard of Health, 33, U.N. Doc. E/C.12/2000/4 (Aug. 11, 2000) [General Comment 14]. Moreover, in tobacco control, the obligation to promote plays a central role. Such obligation requires States to set up the circumstances that maximize the possibility of persons to gain access to the good or service in question. For instance, tax subsidies for first time family owners (property); ad campaigns promoting healthy eating habits (right to health); free wireless internet access (right to information), etc.
16. ICESCR article 12.
17. Is it justifiable that the State profit from the sale of a harmful product to its population? The answer, clearly, is "no". That does not mean, however, that the State should under no circumstance be involved in the sale of tobacco. State ownership can itself be a form of regulation: State control of substance markets regulates the market and keeps the offer side of the equation from attempting to maximize sales and profits. Such a mechanism is seen in the UN's Single Convention on Narcotic Drugs of 1961 as a way of making sure the market for a dangerous substance is kept under control. See articles 23, 27 and 28, mandating the establishment of national agencies monopolizing wholesale trading of legal opium, coca and marihuana.
18. For the purposes of this paper we are not addressing or clarifying whether the FCTC is a human rights treaty. We both agree this argument should be developed in more detail in a separate scholarly paper. For a more detailed discussion on the lack of human rights debate and considerations in the negotiation process of the FCTC please see Taylor A. Trade, human rights and the WHO framework convention on tobacco control: just what the doctor ordered? In: Cottier T, Pauwelyn J, Burgi E, ed. Human rights and international trade. Oxford: Oxford University Press, 2005:322-333.
19. See, O'Neill Institute for National and Global Health Law, Latin American Toolkit (document to address trends in tobacco litigation and industry arguments in the region), on file with O'Neill Institute authors.
20. As mentioned above, this article will not address the question regarding the nature of the FCTC as a human rights instrument.
21. See following subsection: "FCTC and specific content of States' obligations"
22. Committee on Economic, Social and Cultural Rights. Concluding observations: BRAZIL [online monograph]. [Geneva: ICESCR], Accessed May 2009. Available In: OHCHR website at http://www2.ohchr.org/english/bodies/cescr/cescrs42.htm.
23. The report "Preventing and reducing tobacco use in Brazil: Pending tasks" was submitted to the CESCR by the O'Neill Institute for National and Global Health Law, at Georgetown University, together with the Campaign for Tobacco Free Kids and ACT Brazil. Available at the O'Neill Institute website, online at http://www.law.georgetown.edu/oneillinstitute/documents/ONeill-Shadow-Report-Brazil.pdf.
24. The report can also be found at the CESCR's website at: http://www2.ohchr.org/english/bodies/cescr/cescrs42.htm.
25. Additional reports have been filed on the periodical review of Egypt in front of CEDAW, online at http://www2.ohchr.org/english/bodies/cedaw/cedaws45.htm
26. In Latin America, domestic courts (especially high courts, such as Supreme Courts) had taken into account concluding observations and the reports from treaty-monitoring bodies when issuing their decisions.
27. A more comprehensive analysis of the different arguments that the tobacco industry has raised in the region, with the corresponding counter-arguments that should lean the balance towards tobacco control policies, is included in the report that the O'Neill Institute for National and Global Health Law is currently developing, with the support of the Campaign for Tobacco Free Kids, "Tobacco Industry Strategy in Latin American Courts: A Litigation Guide" forthcoming, 2010. For a summary of the constitutional arguments against tobacco control that the tobacco industry and its allies have deployed in the case of Mexico see Madrazo-Lajous A. Sobre la constitucionalidad de la regulación del tabaco en México. Salud Publica Mex 2008; 50 suppl 3: 326-331.
28. A persistent argument for weak bylaws held by lawyers of the Federal Ministry of Health in Mexico was that strict bylaws would invite "a shower of amparos" that would render them moot. For a more detailed explanation of the role played by Mexico's Ministry of Health's in-house lawyers in weakening and delaying the bylaws to the federal tobacco control law see Madrazo-Lajous. Tabacaleras impunes y protegidas. El Universal 2009 May 30. Available in: http://www.eluniversal.com.mx/editoriales/44305.html.
29. All amparo challenges against most provisions of the law have been unsuccessful. The only successful argument that we know of has been that banning the sale of cigarettes in restaurants is an unjustified burden on the right to commerce. During an informal conversation with one of the appellate judges who ruled in favor of the restaurant chain challenging the law, it was clear that the case was decided because the State did not sufficiently prove during trial that the measure was effective in deterring people from smoking. In short, it seems the case was lost by the government because of poor litigation, not because of insufficient constitutional grounding for the measure.
30. Unconstitutionality Claim Brief for Nobleza Piccardo S.A.I.C. Y F. v. Provincia de Santa Fe, 188/2006, Corte Suprema de Justicia de la Nación [Supreme Court] (Arg.).
31. A more comprehensive analysis of the possible counter-arguments that could be raised in response to industry attacks on tobacco control regulation is developed in the O'Neill Institute for National and Global Health Law report on "Tobacco Industry Strategy in Latin American Courts: A Litigation Guide"
32. One of the authors of this paper, together with civil society institutions, has been collaborating in drafting an Amicus Brief in support of Santa Fe's tobacco control law. Since this brief has not yet been submitted, we will not expand on the details of the arguments we have made in support of the tobacco control law.
33. For example, Brief for Universidad de San Carlos de Guatemala as Amicus Curiae Opposing Claimant Cámara de Comercio de Guatemala.
34. The Court also resorts to the FCTC and to international human rights principles. Complaint for Cámara de Comercio de Guatemala v. Partial General Unconsitutionality, 2158-2009, Corte de Constitucionalidad de la República de Guatemala [Constitutional Court].
35. Both authors were involved in the design and implementation of the strategy. The challenge is on file with authors.