The evidentiary value of the World Health Organization framework convention on tobacco control in defending tobacco plain packaging measures in the WTO disputes

This paper evaluates the evidentiary value of the World Health Organization Framework Convention on Tobacco Control (WHO FCTC) in defending plain packaging measures under WTO law which eventually sheds light on accommodating the notions of global health and sustainable development in the domain of international trade with particular reference to the Australia‐Tobacco Plain Packaging decision. The WHO FCTC creates legally binding obligations on its Parties to adopt systematic, effective and innovative tobacco control measures such as tobacco plain packaging. However, the tobacco companies use WTO agreements to challenge the adoption of such stringent tobacco control measures under the WTO Dispute Settlement mechanism. With these challenges the role of WHO FCTC has been shifted from enabler to a defender of tobacco control measures which gives legal weight to Governments’ arguments on adopting tobacco plain packaging measures. The WHO FCTC has appeared as a strong defence in the Australia‐Tobacco Palin Packaging case which strengthening Australia’s arguments as a binding legal instrument and technical and scientific authority. In this backdrop, the WHO FCTC sheds light on accommodating the notions of global health and sustainable development in the domain of international trade and motivates other WHO FCTC parties to adopt tobacco plain packaging measures.

First, this paper investigates the challenges which tobacco trade brings for global health and how is WHO FCTC stimulate its Parties to adopt tobacco control measures to mitigate the impact of such challenges. Second, it examines to what extent WHO FCTC invokes as a defence in the Australia‐ Tobacco Plain Packaging case in strengthening Australia’s arguments. Third, it discusses the tobacco industry challenges on the defensive role of WHO FCTC and counter‐arguments which acknowledged the evidentiary value of the WHO FCTC as a binding legal instrument and technical and scientific authority to justify the adoption of tobacco plain packaging measures. Finally, it analyses the impact of the application of the WHO FCTC as an evidentiary source in the WTO disputes which sheds light on accommodating the notions of global health and sustainable development in the domain of international trade.