Dear all,
As we discussed throughout the CoP6 campaign, we contemplated four possible scenarios
during Moscow in relation to international trade and investment matters, namely:
1.
2.
3.
4.

Provision on “health over trade rules”
Call for the exclusion of tobacco from international trade and investment agreements
Call for a FCTC dispute settlement mechanism to replace the WTO mechanism
Definition of FCTC as an “international standard”

A couple of weeks before CoP6, we learnt that two trade-related proposals were circulated and
discussed in an AMRO meeting held in Panama:
1.
2.

One referred to a “FCTC dispute settlement mechanism” (sponsored by Uruguay); and
The other introduced the call for the “exclusion of tobacco” (sponsored by Malaysia)

Once in Moscow, we also identified a paragraph in the draft ‘Moscow Declaration’ that
contained language that could be read as a “health over trade rules” provision.
We therefore faced three of the four scenarios identified for CoP6. By preventing the adoption
of decisions related to i. an FCTC dispute settlement mechanism, ii. the exclusion of tobacco
from international trade and investment agreements, and iii. a “health over trade” clause, we
achieved all our CoP6 objectives related to the international trade and investment matters.
Below please find a summary of the outcome of the main trade-related discussions during CoP6
in Moscow, in which we briefly describe the original proposals and the final outcome. We also
included a final section with a few ideas of what we believe should be the main focus of our
continued work ahead of CoP7 for international trade and investment related issues. For those
interested in additional details regarding the decisions described below, attached please also
find a chart comparing the relevant paragraphs of the original texts with the final documents
(please keep in mind that the final official texts may be slightly different, as the texts will be
subject to final editing by the FCTC Secretariat).
These excellent results are a direct consequence of the remarkable efforts of all PMI regions
and markets during the past two years and throughout the intense week in Moscow. The
international trade team warmly thanks all colleagues from OC, markets and regions that have
each contributed in achieving this and kindly ask the regional colleagues to share this e-mail
with the relevant markets in each of your regions.
Very best regards,
International Trade Team

I. ‘FCTC DISPUTE SETTLEMENT MECHANISM’ (Introduced by Uruguay)

 Original proposal:
Going into CoP6, a Uruguayan proposal circulated in a pre-CoP6 AMRO meeting, aimed at
establishing a binding, mandatory dispute settlement mechanism within FCTC to deal with any
dispute arising from the implementation of the FCTC (e.g. plain packaging). The document was
trade-specific (even the tittle referred to international trade) and it referred to “tobacco
industry interference”.
Final decision:
Most references to international trade were removed from the decision, including from the
title, as well as language on “tobacco industry interference”.
The actual decision requests the FCTC Secretariat to:
i.
ii.

issue a report on ways to operationalize FCTC article 27; and
enhance capacity building and information sharing in respect to legal challenges.

II. ‘EXCLUSION OF TOBACCO’ (introduced by Malaysia)
Original proposal:
Going into CoP6, a Malaysian proposal circulated in a pre-CoP6 AMRO meeting, referred to the
tobacco industry “abusing” international trade and investment rules. It also contained a call to
provide differential treatment and to exclude tobacco in future international trade and
investment agreements.
Final decision:
The references to the tobacco industry’s “abuse” of international trade and investment rules
were deleted, while calling Parties to “minimize the risk of the tobacco industry making undue
use” of those rules. The calls to provide differential treatment and to exclude tobacco were also
deleted and replaced by a reference urging Parties to take into account the public health
dimension of tobacco (in accordance with FCTC “and other international obligations”, i.e. WTO
law) and a reminder to Parties that they have the possibility to take into account their public
health objectives in future trade and investment agreements.
The actual decision requests the FCTC Secretariat to:
i.
ii.

cooperate with other international organizations and share information on international
trade and investment issues; and
prepare a report on the potential impact of new trade and investment provisions on the
WHO FCTC implementation in developing countries.

III. ‘HEALTH OVER TRADE RULES’ (introduced in the Moscow Declaration)
Original proposal:

 The original draft Moscow declaration contained a paragraph stating that “The right to
enjoyment of the highest attainable standard of health (…) takes precedence over any laws
related to tobacco use. There is no fundamental right to tobacco use”.
Final decision:
In the final version, the concept of health taking precedence over “any laws” was deleted and
the paragraph simply recognized that the implementation of the FCTC contributes to the
achievement of the highest attainable standard of health.

SUGGESTED WORK AHEAD OF COP7:




Regular monitoring of FCTC/WHO debates to identify potential resurface of the debate on
exclusion of tobacco, or any other effort to undermine the standing of tobacco products under
existing and/or future international trade and investment agreements.
Ensuring that relevant government officials, as well as other international organizations (such as
the WTO), are involved in the drafting of the reports requested to the Secretariat.
Incorporate relevant references to the debates and decisions that took place in CoP6 in
engagement with all relevant stakeholders (e.g. MoTs; business associations; think tanks; etc.).

  DISPUTE SETTLEMENT PROPOSAL

FINAL DECISION

 

"Trade and investment issues, including agreements, and legal
challenges in relation to implementation of the WHO FCT 
{Draft decision proposed by Uruguay, as circuiated in a WHO meeting
held in Panama on September 2014}

1. DECIDES:

a] To exhort the Parties to start looking for a way to appropriately
and effectively ensure the mandatorv and binding nature of the
dispute settlement mechanism set forth in Article 27 of the FCTC,
as a means of adequately interpreting the substance of paragraph
2 of said article.

 

b) To encourage the Parties to analyze the possibility that this
binding dispute settlement mechanism be based on the WHO

Dispute Settlement Understanding.

c} To ask the FCTC Secretariat and WHO Secretariat to take the
necessarv steps to cooperate with the WTO in arderto ensure the
availability of these procedures.

d] To exhort the Parties to protect FCTC regulations from tobacco
industry interference through bilateral investment agreements,
bv preventing the use of these investment agreements to
weaken, delav or undermine FCTC implementation.

e) To advise the Parties to ensure local coordination of trade and
public health-related issues in order to guarantee coherence
when ful?lling obligations arising from international agreements.

 

 

"Issues related to implementation of the WHO FCTC and settlement
of disputes concerning the implementation or application of the
Convention?

1. DECIDES to request the Convention Secretariat to prepare a report
for consideration at the seventh session of the Conference of the
Parties examining:

possible procedures for settling disputes concerning the
interpretation or application of the Convention, through
negotiations, diplomatic channels, or ad hoc arbitration in
accordance with Article 

[bl the kind of disputes that may be subject to such procedures;

the interaction of such procedures with other disputes
settlement mechanisms; and

2. FURTHER REQUESTS the Convention Secretariat:

to facilitate the provision oftechnical support, training and

capacity building activities if necessag. in respect of legal
challenges to implementation of the Convention;

in coordination with the WHO Secretariat and the relevant
knowledge hubs, to continue facilitating information sharing and
cooperation among the Parties with regard to legal challenges

against their tobacco control measures in domestic courts or
through international dispute settlement mechanisms;

 

 

 

To urge the States Parties to promote and support national 3. ALSO DECIDES to invite Parties, through the Convention

efforts by governments to dulv implement the FCTC reasserting Secretariat Information Platform, to share information relating to
their sovereign right to protect public health. legal disputes faced bv States with respect to tobacco control
measures in domestic courts or international dispute settlement
mechanisms. The Platform shall also contain a database of public
institutions and legal experts nominated by the Parties with
experience in tobacco litigation that could promote information
exchange and assistance to other Parties in this domain.

 

 

 

 

Emphasis added

OF PROPOSAL FINAL DECISION

 

 

 

"Trade and investment issues, including agreements, and legal "Trade and investment issues, including international agreements,
challenges in relation to implementation of the WHO and legal challenges in relation to implementation of the WHO 
{Draft decision proposed by Malaysia, as circulated in a WHO AMRO meeting
held in Panama. September 2014} 1. ENCDU RAGES Parties to cooperate in exploring possible legal
options to minimize the risk of the tobacco industrv making undue
1- H35 resolved: pg of international trade and investment instruments to target

tobacco control measures;
a] To encourage the Parties to cooperate with each other in

 

 

 

 

 

 

order to analyze 3" legallv viable options to prevent the 2. URGES Parties to promote multisectoral collaboration in the area
tobacco indUStW from abusing international trade and oftrade and investment to take the public health dimension of
investment regulations. tobacco consumption into account, in accordance with the WHO
FCTC and other international obligations, while in the course of
b] To encourage the Parties to strengthen intersectorial trade negotiations;

cooperation so that ministers in charge of trade and
commerce ensure that?during trade negotiations?tobacco 3. In the context ofthe WHO FCTC REMINDS parties of the
products are treated sepa ratelv in a manner that is consistent possibilitv to take into account their public health obiectives in
With the FCTC- their negotiation of trade and investment agreements;

 

 

 

 

 

c} To exhort the Parties to support the efforts of Parties to 4. REQU ESTS the Convention Secretariat to continue to strengthen

 

 

exercise their sovereign right to exclude tobacco from trade its efforts to cooperate with the relevant international
and investment agreement negotiations. organizations, and to encourage communication and information

 

sharing on trade and investment related issues;
4. Additionally, it has resolved to ask the Convention Secretariat to:
5. FURTHER REQU ESTS the Convention Secretariat to prepare a

 

Prepare a report on the possible repercussions for FCTC report on the potential impact of new trade and investment
implementation ofthe new trade and commerce provisions, provisions on WHO FCTC implementation indeveloping countries.

including recommendations on modifications to Convention
policies and mechanisms in order to protect tobacco control
measures from current trends and challenges observed in the field
of international trade and investment.

 

 

 

 

Emphasis added

DRAFT MOSCOW DECLARATION MOSCOW DECLARATION

 

Relevant paragraph:
1 The right to eniovment of the highest attainable standard of the implementation of the WTO FCTC, its guidelines and protocols
health, guaranteed by international law and national legislation facilitate the eniovment ofthe right to the highest attainable

 

of the vast majorityr of States, takes precedence over anv laws standard of health, recognized in international law and national
related to tobacco use. There is no fundamental right to tobacco legislation of the vast majority of States;
use;

 

 

 

 

Emphasis added