Treaties in the Global Environment: Practical Treaty Making
Introduction
I have been asked to speak to you today about the Framework Convention on Tobacco Control, or FCTC, and in particular about the development of a whole-of-government position for the negotiations.
The Convention was agreed in February this year, after three years of negotiation. In the context of today's discussions about treaty- making it is interesting, not just because of the subject matter it covers, but because of the challenges thrown up by a negotiation like this one.
To give you a little bit of background:
- The initiative for the Framework Convention on Tobacco Control came from then Director-General of the World Health Organisation, Dr Brundtland.
- Dr Brundtland was concerned about the human and economic costs of tobacco use and the diseases and other health issues associated with that use.
While many tobacco control measures arguably do not require international cooperation to be effective, because most of the relevant measures can be taken at the national level, it was felt that a Convention would focus energy and attention on the issue, raise awareness, facilitate the sharing of expertise and ensure cooperation in areas such as illicit trade, where international cooperation is important.
The Framework Convention on Tobacco Control was the first treaty to be negotiated under the auspices of the WHO. It was a landmark in terms of international health instruments.
The fact that it was a new thing in the WHO arena had implications for the manner in which the negotiation was run, owing to the fact that it was a new venture for the Secretariat of the WHO which administered the negotiations, and for the hundreds/ thousands of health professionals negotiating.
In an international setting, it was the first time that countries had gotten together to create legally binding obligations for themselves in international health. Previously, they had participated in different types of Committee or Commission negotiations which negotiated non-binding instruments, such as resolutions and plans of action etc. The previous experiences of the negotiators is reflected in the text itself.
The scope of the FCTC
Looking at the scale of the mandate the delegation required - could look at Article 3 of the Convention.
The objective of the Convention is stated in Article 3:
"The objective of this Convention and its protocols is to protect present and future generations from the devastating health, social, environmental and economic consequences of tobacco consumption and exposure to tobacco smoke by providing a framework for tobacco control measures to be implemented by the parties at the national, regional and international levels in order to reduce continually and substantially the prevalence of tobacco use and exposure to tobacco smoke."
Unusually for a treaty, after the "objective" clause in the text, there is a provision entitled "guiding principles", which is in turn followed by "general obligations".
What is the difference between them? What is a "guiding principle" in a legal text? The character of these provisions has been interpreted to reflect the Convention's character as a "framework" convention. But in fact, the repetitive, and non-binding character of these provisions reflect the historical origins of the treaty and the political, rather than legal, focus of the majority of negotiators.
This treaty covers tobacco control in a very elaborate, perhaps comprehensive, manner touching upon issues in a broad range of areas.
For example, it touches on customs issues, it talks about employment law - the age of the person behind the counter selling cigarettes and how close they can be to cigarettes - it talks about cross-border advertising -reducing second-hand smoke, the size of warnings on cigarette packets- types of phrases that can be used to market tobacco products; it talks about how to encourage production of alternative crops and research and development to name just a few of the areas covered.
So, this was indeed a very broad ranging negotiation.
The composition of the Australian delegation reflected the broad range of issues being negotiated. It comprised three health officials, including the leader of the Australian delegation and Australia's elected representative on the Bureau of the International Negotiating Body, representing the Western Pacific region. At various times it included an official from the Attorney-General's Department, an official from Customs and an official from the Department of Foreign Affairs and Trade. Our Ambassador in Geneva also participated, as did representatives from our mission to the WHO and our mission to the WTO. As a representative from DFAT, I participated in the last of the six sessions of negotiation. My colleague Patricia Holmes, who is also here with us, participated in the fifth session of negotiations.
So what were trade officials doing in a health negotiation? Our involvement arose once it became apparent that the Convention was venturing beyond health matters and into trade matters, for example agricultural subsidies, labelling, illicit trade and the relationship between the FCTC and other international agreements.
This is one of the points I wanted to make today: While a negotiation may appear to focus on one sectoral issue it may in fact raise numerous others, requiring a broad coordination process to ensure that the full range of national interest considerations are taken into account in developing our final negotiating position. It is essential to get this process right at the beginning, otherwise the treaty making process becomes very uncertain down the track.
Developing Australia's negotiating position
Prior to developing a mandate for a treaty negotiation process, it is necessary for the lead agency to undertake a broad consultation process. This was especially important in the case of tobacco control as much of Australia's tobacco control legislation is at the level of Australia's states and territories.
As part of the process of preparing Australia's negotiating position, the Department of Health undertook an extensive consultation process to determine as a country, where Australia stood in terms of tobacco policy and regulation. The Department of Health also consulted industry and non-governmental peak health bodies, such as the National Heart Foundation and the Anti-Cancer Council.
Following these consultations, the Department of Health led consultations among Government Departments in Canberra to determine a mandate for each of the articles in the Convention.
There were of course many more departments participating in those discussions than were able to go as part of the delegation to Geneva. For example, as part of the inter-departmental committee process, the Departments of Treasury and Finance participated, as did AusAID, Customs and Communications, among others.
Prior to each negotiating session, and after, the inter-departmental committee met to review the draft text being negotiated and to assess what Australia's interests were in the negotiation.
Putting the national position into the international negotiating context
Now, given that Australia has some of the strictest tobacco control legislation in the world, you would think that this should have been a simple negotiation for us.
But there were several complicating factors:
- The profile of delegations: delegations were incapable of dealing with all of the issues thrown up by the nature of the instrument - a framework convention. Many delegations were very small, sometimes comprising one person from the Ministry of Health, who simply weren't in a position to deal with the complex issues that were arising and could not appreciate the level of detail of the legal obligations they were undertaking on behalf of their country.
- The scope of the instrument - ventured way beyond health issues and the purview of the WHO. In fact, at one stage it looked as though the instrument would - perhaps unwittingly - set a precedent for a hierarchy of treaties in the international legal order.
- The first time the WHO had negotiated an instrument - it was inexperienced in treaty negotiations. This was reflected in the way it produced revised drafts after negotiations concluded.
For the next few minutes, I would like to focus on the lesson to be learned from this negotiation in terms of the objectives of this course on Treaty-Making, and that is that international treaties do not exist in isolation. They will be interpreted in light of existing international rules of treaty interpretation, and their development and content may affect the status of other existing international obligations.
What am I referring to here? Well, you have heard about the Vienna Convention on the Law of Treaties. One of the provisions in that Convention is about how to interpret a provision in a treaty which comes after another provision in another treaty and regulates the same subject matter. In summary, the obligation in the later treaty provision will amend the pre-existing one. So, this Convention to the extent that it might touch on subjects already regulated elsewhere, would amend those obligations.
In a negotiation as broad as this one, this was something that came up repeatedly. As negotiators, we had to inerpret the impact of this instrument, not only on our existing domestic laws, but on our existing international law obligations.
From the Trade Law Branch's perspective, our concern was to ensure that the FCTC, either directly or through interpretation, did not allow countries to escape their legal obligations in other international agreements, chief among these the WTO Agreements, through the Tobacco Convention.
It is important to note that Australia's position during the negotiations was clearly that legitimate health concerns took precedence over other issues covered by the Convention, including trade.
In our view there is no inherent conflict between tobacco control measures and countries' international trade obligations - the two can and should be mutually compatible.
As representatives of the Office of Trade Negotiations within DFAT, it was our job to ensure that all of the obligations affecting trade issues were consistent with existing international trade obligations. The idea being that work on a worthwhile instrument on tobacco control should not be hijacked and exploited by countries in other fora to argue that they didn't need to live up to their obligations there.
We did this in a couple of ways - first we looked at the substance of the text - did it on its face require a signatory to act inconsistently with other international obligations? For some time, there was language in the draft text which appeared to require a signatory to act in conflict with international trade law. We worked hard to ensure that countries were not wittingly or unwittingly, working to undo legal commitments they had made elsewhere.
As a back up to this approach, and as negotiations became more complicated, we supported the idea of a "savings" clause, a provision in the convention which would tell people how to interpret this convention in relation to other instruments and to specify that it should not be read as affecting other existing international obligations. By its existence, it would obviously create a body of law adding to those obligations, but it shouldn't undermine already existing obligations.
In the final hours of negotiations, this became a real sticking point. Negotiations were divided as some countries wanted this Convention to operate as a statement of the highest order of international priority. This was very much a political objective. For Australia, and for countries like Australia, it was important that this Convention be as strong as it could be, but that it not undermine inadvertently other areas of equally high political priority.
For some delegations, particularly some single issue delegations, there was a strong suggestion that the Convention would be used in the domestic political context to wield additional power, or to use it as a base for additional government funding. In the Australian "whole of Government" approach to all treaty negotiations, there are checks and balances to ensure this doesn't happen in the Australian context.
On several occasions agreement on a savings clause was close, but in the end, strong opposition by one or two countries prevented it. In view of the strength of objections to it, a number of countries which had supported the idea of a savings clause decided to back out - in their view, it wasn't worth upsetting the apple cart over.
In the end, having evaluated each of the substantive provisions as they emerged from drafting groups around the WHO building, and looking at this agreement in its context, that is it is a health agreement targetting a very specific issue, the Australian delegation - acting in consultation with Canberra - concluded that it could also join the consensus. This was because on its face, the language of the Agreement did not expressly conflict with existing international obligations, even though it did not offer the added security or clarity of a savings clause.
What this negotiation indicates is that even on an issue as apparently straight forward as tobacco control - seemingly peripheral issues may develop into substantive stumbling blocks. It is important - indeed, essential - for the national interest, to have clear negotiating mandates sorted out before departing Australia.
For your information, this story has a very happy ending, as Australia recently announced that it will sign the Framework Convention on Tobacco Control, joining 76 other countries which have already signed.