Integrating human right norms into tobacco litigation

Oscar A. CabreraO’Neill Institute for National and Global Health Law

Georgetown University

15th World Conference on Tobacco or Health Singapore - March 2012

Putting the Human Rights-based approach to Tobacco Control into practice

Structure of the Presentation

1. Human Rights

2. Why human rights and tobacco control3. Example of human rights arguments 4. Example of successful litigation: Jaime Barco Rodas case in Peru

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1. Universal Human Rights System

Human Rights - Subjects in Human Rights Law

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UNFPA

Human Rights - States Obligations

States (that have ratified human rights treaties) have legal obligations to

Respect

Protect

Fulfill

Human rights and individual freedoms

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Human Rights - The Right to Health

The International Covenant on Economic Social and Cultural Rights (ICESCR) addresses the right to health in the following terms (article 12):

“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…”

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Human Rights - The Right to Health

The ICESCR imposes states the obligation to adopt the necessary measures to protect the public’s health (ICESCR, article 12)

In General Comment 14, when interpreting this article (article 12) the Committee on Economic, Social and Cultural Rights (the body that monitors the implementation of the ICESCR) expressly stated that States have the duty to

“respect, protect and fulfill the right to health”

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2. Why Human Rights and Tobacco Control

Why is a human rights approach relevant for tobacco control litigation?

• To shift a trend: the tobacco industry has more effectively used human right arguments.– Such as freedom of speech

• To strengthen a political position: human rights law has a prominent role in political and policy discourses. – Once a relevant societal issue acquires the status of a

human right, it has special consideration in public policy.

Why is a human rights approach relevant for tobacco control litigation?

• To link FCTC provision with existing human rights obligations– Strengthening the FCTC implementation

• Types of Litigation–Defensive: Protect tobacco control regulations (i.e. against industry attacks) Example: case before the Const. Court of Colombia

–Offensive: Lawsuits against the State for failing to comply with the duty to protect (i.e. when the minimum standards for the protection of the right to health are not met)Example: amparo against the General Law for Tobacco Control in Mexico

Litigation onTobacco Control

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3. Human Rights Arguments in Tobacco Control

Limitations on Commercial Freedoms

• The right to health permits and requires restrictions on commercial freedoms–The measures, based on scientific studies, are proportionate and legitimate in that they do not affect the essential nature of the limited rightsEx: Regulations on the activities of medical providers, pharmaceutical products, food, etc.

Limitations on Commercial Freedom

• Legal limitations on advertising and consumption do not interfere with the economic activity itself, that is to say, the production, sale, and purchase of tobacco

• Passive Market– Tolerated but discouraged by the State, which

has an obligation to protect health

The FCTC and human right treaties

• Could the FCTC be considered a standard to interpret human rights treaties?–CESCR report on Brazil, 2009The Committee notes, however, that the State party has taken important steps to reduce the threat tobacco poses for life, health, the environment and the general population by ratifying the WHO FCTC and developing public policies to reduce tobacco use. (art. 12, para. 1)

5. Example: Constitutional Tribunal in Peru

Plaintiff's Arguments

• Unconstitutionality of article 3 of law 28705– Establishment of smoke-free environments– Prohibition of public places exclusively for

smokers (including the employees)– Prohibition of smoking on open areas of

educational institutions

Tribunal's Decision

“In the criterion this Court shares, the Georgetown University School of Law’s O’Neill Institute for National and Global Health Law, Campaign for Tobacco Free Kids and Framework Convention Alliance have upheld in their report that the questioned legislative measure in this proceeding “is not just a constitutionally valid measure, but also mandatory from the International Human Rights Law perspective and the obligation to protect the right to health”

Tribunal's Decision

Progressive realization / Prohibition of retrogressive measures“It is found constitutionally prohibited that in the future legislative steps or those of any other nature be taken that protect in a lesser degree the fundamental right to health in face of the smoking epidemic in comparison with the way current legislation does so.”

Thanks.

Oscar A. CabreraO’Neill Institute for National and Global Health Law

Georgetown University