FCTC

The Legal Relationship

Canada is what international lawyers call a “dualist” country. This means that international treaties do not automatically become part of Canadian law; they require legislation for domestic implementation. So when the Framework Convention on Tobacco Control (FCTC) entered into force, it created obligations owed by the government of Canada to other FCTC Parties. Canadian individuals will not be bound until domestic laws are passed to implement these FCTC requirements.

There’s an additional wrinkle in that for the purpose of creating legal obligations, international law does not recognize sub-national entities such as provinces. The result is that a treaty might create an obligation for the government of Canada, whereas the subject matter might be within the exclusive jurisdiction of the Canadian provinces. In other words, the federal government would be internationally responsible for any failure of a provincial government to pass laws to bring their jurisdiction into compliance with the FCTC.

As the FCTC system further evolves from the current broad set of mostly administrative obligations, through guidelines, ultimately to protocols addressing more substantive areas, this may become a growing issue for federated countries.

The Political Reality

Symbiotic Relationship

The relationship between domestic law and international law is naturally symbiotic, with domestic legislation influencing what countries negotiate or are willing to accept internationally, and international treaty law directly influencing the domestic law of Parties to the treaty. Sometimes a treaty can influence the domestic law of non-Parties as well. The latter can occur either: because the non-Party wishes to become a Party at one point, and they are get their domestic legislation in agreement with the treaty in advance; or because the non-Party agrees with some parts of the treaty and enacts domestic legislation in line with the treaty’s standards on those parts, even if on other issues they disagree and those disagreements preclude their becoming a full Party to the treaty.

Framework treaties, like the FCTC, illustrate an additional and ongoing relationship between domestic and developing international law. Where the core treaty exists as a framework dealing largely with procedural issues, leaving much of the substantive detail to be hammered out in subsequent protocols affiliated with the framework treaty, there is a grave need to maintain momentum. While that momentum is most desirably maintained at regular meetings of the Parties where protocol negotiations can occur, in many instances those multinational meetings can bog down with squabbling or simply under the weight of too many competing ideas and approaches. Domestic legislative advances, in those circumstances, might be the only effective means of keeping momentum going on an issue under international negotiation. And, of course, complementary domestic legislation in several countries at a crucial moment in protocol negotiation might help rally international acceptance of that particular legislative approach.

Treaties as Effective Ceilings

Often an international treaty sets out minimum standards and does not preclude Parties from legislating beyond those requirements. In the case of tobacco control, Article 2.1 of the FCTC makes this explicit. Treaties like the FCTC are intended to be floors rather than ceilings. That said there often is a “ceiling effect” created by international treaties including, arguably, the FCTC. The treaty might not create this in law, but the treaty process frequently leads to it.

There are two main reasons. First, there is a tendency for negotiating countries, particularly those at the forefront of the issue, to attempt to negotiate internationally for standards equating to their domestic status quo. They might consider this to be harmonizing standards upward to theirs, but even if successful it encourages stagnation at current best efforts rather than breaking new ground.

Second, by setting out an international standard the treaty identifies both what must be met for compliance, but also a level of regulation which, if surpassed, might be viewed either as placing them at a competitive disadvantage, or likely to foment additional political opposition. The conclusion some governments seem to draw is that it is easy to come up to the international standard, but politically difficult to surpass it.

This obviously isn’t the case on all matters or, indeed, a determining factor for all countries.

It is, however, readily identifiable. For instance, while the FCTC contains comparatively few concrete obligations of result rather than process, it does set out one regarding package warnings. That FCTC article says that warnings should be “no less than 30% of the principal display surfaces” of the package. While there have been a good number of countries that have surpassed the 30% requirement, as of 2009 about a dozen had implemented health warnings constituting exactly 30% on the front and back surface areas; and another 20 countries had chosen to implement exactly 30% on the front, the most visible face.