Dr. Brigit Toebes, University of Groningen

On Monday 26 January we officially launched our new initiative ‘Global Health Law Groningen’ (GHLG). During the launch we paid attention to the most important and influential standard adopted within the context of the World Health Organization (WHO): the Framework Convention on Tobacco Control (FCTC). It was adopted in 2003 and 180 countries are now a party to this treaty, including the  Netherlands. Among other issues the treaty obliges States Parties to take price and other measures to reduce the demand for tobacco, to regulate the exposure to tobacco smoke, while it also encourages states to prohibit the sale to minors.

For a proper understanding of global health law as a new and emerging field it is important to look at the potential of this treaty. It is important to do so not only in high income countries like the Netherlands, but also in middle and low income countries. Now that developed states are adopting stricter legislation in the field of tobacco control, tobacco companies are shifting their markets from rich countries to poor countries where regulation is –often- still weak. As a result these countries are facing a dramatic increase in smoking-related diseases, and overall a public health disaster. To find out how the treaty can work it is critical to look at court cases at the domestic level. There have been such cases in Australia and in a few Latin American countries, and also in the Netherlands.

We were extremely pleased to have the lawyer in the recent court case against the Netherlands, Phon van den Biesen,  as a speaker at our launch. Phon van den Biesen is an attorney at law in Amsterdam, and an international as well as national litigator, usually in public interest cases. He has represented Bosnia and Herzegovina as well as Djibouti before the International Court of Justice in The Hague and he regularly appears before the European Court of Justice in Luxembourg, usually representing Civil Society Organizations. Currently he is leading the international Legal Team that represents the Marshall Islands before the International Court of Justice in their case against the Nuclear weapons States. He also stands up for threatened human rights lawyers across the world who are persecuted or punished because of the cases they choose to handle while discharging of their professional duties. But the specific reason why he was present at our launch is because he is currently the lawyer in the recent anti-tobacco case against the State of the Netherlands, which addresses the close ties between the Dutch government and the tobacco industry.

In his interesting presentation, Van den Biesen started with an explanation of the links between health and human rights law, which also underpin the FCTC. The specific focus in this case, which he carries out on behalf of a Dutch Foundation, is on Article 5(3) of the FCTC, which requires that States Parties protect their policies against the influence of commercial interests. In other words, based on this provision they should keep their doors shut to the tobacco industry. As such, Article 5(3) is intended to create a firewall between anti-tobacco policies and the industry. According to Van den Biesen, this provision forms the backbone of the Convention: without respect for this provision, the remaining provisions in the treaty cannot properly be effectuated.

Van den Biesen argued that the Dutch Government is ignoring each and every aspect of this provision. The Writ of Summons of the case, which is over 100 pages long, contains a long list of examples reflecting the close ties between the Government and the tobacco industry. According to Van den Biesen, these ties are typical for the Dutch ‘poldermodel’ which seems to be the name of the game in all areas of policy and which is aimed at finding harmony and agreement between all actors in the field. The FCTC and the current case should bring about a ‘culture shock’ by making it clear that this working method is no longer tolerated when it comes to tobacco control. However, the government seems not to be aware of the existence, let alone the meaning, of the treaty. Civil servants wrongly claim that they only have to guarantee transparency in their contacts with the tobacco industry. According to Van den Biesen, an important aspect of the current case is informing civil servants about the existence and implications of the treaty.

The next speaker of our panel, Hans Hogerzeil, is Professor of Global Health at UMCG. He has also worked for the WHO for 26 years, where he has been the Director of Essential Medicines and Pharmaceutical Policies. Hogerzeil is a member of our Global Health Law Groningen initiative through which we work together on a project identifying domestic legislation in the field of access to essential medicines (ELMA). It is remarkable how Hogerzeil, as a medical professional, has embraced international human rights law, in a very practical and effective manner.

Interestingly, Hogerzeil worked at WHO when FCTC was developed. The WHO was founded in 1946, at a time that was marked by a strong sense of post-war idealism.  Although WHO was, through its Constitution, equipped with strong normative powers, it has further developed itself as an organization focusing mainly on the development and support of global and national public health policies. It is important to understand that for most of its work the WHO can only work on the basis of consensus. Except through a binding a treaty like the FCTC, WHO cannot  interfere too deeply in a State’s domestic affairs, as this would not be tolerated by domestic governments. In most of its activities the WHO can, thus, never be too confrontational; it can convince but it cannot enforce.

The next speaker was dr. Machteld Hylkema, an immunologist with a broad interest in the development of asthma and COPD (chronic obstructive pulmonary disease). After studying and working in Leiden, Amsterdam and Stanford she now works as an Associate Professor at the department of Pathology of UMCG. She has developed several mouse models for asthma and COPD but is also involved in clinical studies. Hylkema has spent almost 15 years investigating the effects of smoking in patients with asthma and COPD. She has also worked extensively with different (smoking) mouse models, which can provide answers to questions that one cannot be addressed in humans.

Based on her research, Hylkema indicated that smoking can have a detrimental health effect on next generations: smoking is not only bad for yourself but can also affect the health of your children. Research indicates that smoking changes the semen in men and ovaries of women, which then has a negative effect on one’s offspring. It was quite shocking to hear that a smoking grandmother can have a negative effect on the health of her grandchildren. Hylkema posed an important question to the students: what type of measures should governments take to break the habit in adolescents (which unfortunately did not get addressed properly)?

The last panelist was Dr. Heleen Weyers, a sociologist of law and health law at the department of Legal Theory of the Faculty of Law. Weyers, also a Global Health Law Groningen member, specializes in the regulation life-shortening treatments like euthanasia, while another focus in her research is the smoking ban in small cafes. As a legal theorist an important question for her is:  is the law effective and can it influence people’s behavior?

Weyers started by explaining that a sociologist of law is not an expert on black letter law but rather studies the wider dimensions surrounding the law. She indicated that although legislation is always seen as one of biggest steering roles of society, reality teaches us otherwise.  We can see this when we study the reasons for the decline in smokers in the Netherlands. It was not governmental law and policy that generated this change, but rather changes in society itself. Smoking has decreased enormously over the course of the past decennia because smoking is increasingly seen as a dirty habit. As such it is not government but social control that generated this change. Her message was that we should study these broader processes in society so as to better understand what may trigger such changes.

What followed was a lively and interesting debate with the audience touching on various dimensions of tobacco control and the court case at issue. There seemed to be a consensus among all participants that given the detrimental health effects of smoking, tobacco control is necessary. However there was no agreement on the ways in which this is to be done. One student from the audience expressed concern about the imposition of taxes in developing countries, as it would generate an illicit tobacco market which would negatively affect the smoking behavior of the poor. Also, the link was made with the current obesity pandemic, and the question was raised whether unhealthy food is a product similar to tobacco and whether it could and should be regulated in a similar fashion.  Surely this raises interesting questions and future challenges for ‘Global Health Law Groningen’.