Administering the Mark of Cain: Secrecy and Exclusion in the FCTC Implementation Process

<div> <div> <div> <p><span>The process for negotiating and implementing the Framework Convention on Tobacco Control (“FCTC”), the world’s first public health treaty and the first adopted under the auspices of the World Health Organization (“WHO”), has been characterized by novel features of secrecy and exclusion that cannot be reconciled with accepted norms of international lawmaking. The FCTC’s stated objective is to progressively reduce tobacco consumption “by providing a framework for tobacco control measures to be implemented by the Parties at the national, regional, and international levels.”</span><span>&nbsp;</span><span>That goal has significant economic implications that impact groups ranging from tobacco farmers to wholesalers to importers - yet blanket bans on public and media access have wholly excluded impacted groups from having any voice in, or even the ability to monitor, ongoing deliberations. In a clear and unabashed exercise of viewpoint discrimination, only favored NGOs that uniformly espouse swift and universal eradication of all tobacco products without regard to economic consequences have been exempted and allowed to participate in implementation proceedings. Even more extraordinarily, the FCTC’s “Conference of the Parties” (“COP”)—the international lawmaking body charged with elaborating and implementing the FCTC</span><span>—has advocated increasingly strident measures designed to render tobacco interests, and all who associate with them, international pariahs who are not merely excluded from deliberations but also&nbsp;</span><span>incapable of speaking</span><span>: to international negotiators, to domestic lawmakers, or even to the consumers of their products. &nbsp;T</span><span>hese public and media bans have proven very effective at discouraging mainstream media coverage of FCTC proceedings.</span></p> <div> <div> <div> <p><span>From 2001 to 2003, I served on the US delegation that helped negotiate the FCTC. Shortly after the negotiations concluded, I published an article in 2004 arguing that the FCTC as finally adopted was substantively beneficial, yet was the product of a “deeply flawed [negotiation] process” that was both “broken” and “inefficient.”</span><span>&nbsp;</span><span>I urged then that the broken negotiating structure should not be replicated or used as a model for future negotiations, predicting that doing so would result in further warping of established norms of international lawmaking, and would in the long run generate poor and perhaps even extreme policy results. &nbsp;T</span><span>his article argues that my 2004 predictions proved true, and that the FCTC implementation process should be significantly reformed to incorporate basic norms of transparency and deliberative process. &nbsp;An&nbsp;</span><span>exclusionary policymaking process will serve only to destabilize established norms for the creation of international law, and if history is any guide in the long run will in the long run undermine the efficacy of public health outcomes.</span></p> </div> </div> </div> </div> </div> </div>