FCTC/COP/INB-IT/3/REC/1
CONFERENCE OF THE PARTIES TO THE WHO FRAMEWORK CONVENTION ON TOBACCO CONTROL INTERGOVERNMENTAL NEGOTIATING BODY ON A PROTOCOL ON ILLICIT TRADE IN TOBACCO PRODUCTS
THIRD SESSION GENEVA, 28 JUNE – 5 JULY 2009
SUMMARY RECORDS
GENEVA 2009
FCTC/COP/INB-IT/3/REC/1
CONFERENCE OF THE PARTIES TO THE WHO FRAMEWORK CONVENTION ON TOBACCO CONTROL INTERGOVERNMENTAL NEGOTIATING BODY ON A PROTOCOL ON ILLICIT TRADE IN TOBACCO PRODUCTS
THIRD SESSION GENEVA, 28 JUNE – 5 JULY 2009
SUMMARY RECORDS
GENEVA 2009
ABBREVIATIONS Abbreviations used in WHO documentation include the following: ACHR ASEAN CEB – Advisory Committee on Health Research – Association of Southeast Asian Nations – United Nations System Chief Executives Board for Coordination (formerly ACC) – Council for International Organizations of Medical Sciences – Food and Agriculture Organization of the United Nations – International Atomic Energy Agency – International Agency for Research on Cancer – International Civil Aviation Organization – International Fund for Agricultural Development – International Labour Organization (Office) – International Monetary Fund – International Maritime Organization International Narcotics Control Board – International Telecommunication Union – Organisation for Economic Co-operation and Development OIE – Office International des Epizooties PAHO – Pan American Health Organization UNAIDS – Joint United Nations Programme on HIV/AIDS UNCTAD – United Nations Conference on Trade and Development UNDCP – United Nations International Drug Control Programme UNDP – United Nations Development Programme UNEP – United Nations Environment Programme UNESCO – United Nations Educational, Scientific and Cultural Organization UNFPA – United Nations Population Fund UNHCR – Office of the United Nations High Commissioner for Refugees UNICEF – United Nations Children’s Fund UNIDO – United Nations Industrial Development Organization UNRWA – United Nations Relief and Works Agency for Palestine Refugees in the Near East WFP – World Food Programme WIPO – World Intellectual Property Organization WMO – World Meteorological Organization WTO – World Trade Organization
CIOMS
FAO
IAEA IARC ICAO IFAD ILO IMF IMO INCB ITU OECD
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The designations employed and the presentation of the material in this volume do not imply the expression of any opinion whatsoever on the part of the Secretariat of the World Health Organization concerning the legal status of any country, territory, city or area or of its authorities, or concerning the delimitation of its frontiers or boundaries. Where the designation “country or area” appears in the headings of tables, it covers countries, territories, cities or areas
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PREFACE The third session of the Intergovernmental Negotiating Body on a Protocol on Illicit Trade in Tobacco Products was held at WHO headquarters, Geneva, from 28 June to 5 July 2009. The proceedings are issued in two volumes, containing, in addition to other relevant material: summary records of committees – document FCTC/COP/INB-IT/3/REC/1 verbatim records of plenary meetings – document FCTC/COP/INB-IT/3/REC/2 The documentation, including the list of participants, is accessible on the following web site: http://www.who.int/fctc/
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CONTENTS Page Abbreviations .................................................................................................................................. Preface............................................................................................................................................. Agenda ............................................................................................................................................ List of documents ............................................................................................................................ ii iii ix xi
SUMMARY RECORDS OF MEETINGS OF COMMITTEES COMMITTEE A First meeting 1. 2. Opening of the Committee.................................................................................................... Election of officers ..................................................................................................... Drafting and negotiation of a protocol on illicit trade in tobacco products Part III: Supply chain control ..................................................................................... • Article 5: Licence or equivalent approval system................................................... • Article 6: customer identification and verification ................................................. • Article 7: Tracking and tracing ............................................................................... • Article 8: Record-keeping ....................................................................................... • Article 7: Tracking and tracing (resumed) .............................................................. 3 3 3 4 6 7 10 10
Second meeting Drafting and negotiation of a protocol on illicit trade in tobacco products (continued) Part III: Supply chain control (continued) .................................................................. • Article 7: Tracking and tracing (continued)............................................................ • Article 5: Licence or equivalent approval system (continued) ............................... Third meeting Drafting and negotiation of a protocol on illicit trade in tobacco products (continued) Part III: Supply chain control (continued) .................................................................. • Article 7: Tracking and tracing (continued)............................................................ • Article 5: Licence or equivalent approval system (continued) ............................... • Article 6: Customer identification and verification (continued) ............................. • Article 8: Record-keeping (continued).................................................................... • Article 9: Security and preventive measures........................................................... • Article 7: Tracking and tracing (resumed) ..............................................................
12 12 18
22 22 27 32 36 38 45
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Page Fourth meeting Drafting and negotiation of a protocol on illicit trade in tobacco products (continued) Part III: Supply chain control (continued) .................................................................. • Article 10: Sale by Internet, telecommunication or any other evolving technology Fifth meeting Drafting and negotiation of a protocol on illicit trade in tobacco products (continued) Part III: Supply chain control (continued) .................................................................. • Article 5: Licence or equivalent approval system (continued)................................ Sixth meeting Drafting and negotiation of a protocol on illicit trade in tobacco products (continued) Part III: Supply chain control (continued) .................................................................. • Article 6: Customer identification and verification (continued) ............................. • Article 8: Record-keeping (continued).................................................................... • Article 9: Security and preventive measures (continued)........................................ Seventh meeting Drafting and negotiation of a protocol on illicit trade in tobacco products (continued) Part III: Supply chain control (continued) .................................................................. • Article 6: Customer identification and verification (continued) ............................. • Article 9: Security and preventive measures (continued)........................................ • Article 10: Sale by Internet, telecommunication or other evolving technology...... Eighth meeting Drafting and negotiation of a protocol on illicit trade in tobacco products (continued) Part III: Supply chain control (continued) .................................................................. • Article 6: Customer identification and verification (continued) ............................. • Article 11 Free-trade areas and duty-free sales ....................................................... • Article 5: Licence or equivalent approval/similar control system........................... Ninth meeting 1. Drafting and negotiation of a protocol on illicit trade in tobacco products (continued) Part III: Supply chain control (continued) .................................................................. • Article 6: Customer identification and verification (continued) ............................. • Article 11 Free-trade areas and duty-free sales (continued).................................... • Article 6: Customer identification and verification (resumed)................................ • Articles 5 to 11 ........................................................................................................ Closure of the session............................................................................................................
47 47
50 50
59 59 67 73
80 80 80 87
89 89 89 95
101 101 101 105 108 109
2.
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Page
COMMITTEE B First meeting 1. 2. Opening of the Committee.................................................................................................... Election of officers ..................................................................................................... Drafting and negotiation of a protocol on illicit trade in tobacco products Part IV: Offences and sanctions ................................................................................. • Article 12: Offences ................................................................................................ • Article 13: Liability of legal persons ...................................................................... • Article 14: Sanctions............................................................................................... 110 110 110 111 116 117
Second meeting Drafting and negotiation of a protocol on illicit trade in tobacco products (continued) Part IV: Offences and sanctions (continued) .............................................................. • Article 14: Sanctions (continued)............................................................................ • Article 12: Offences (continued)............................................................................. • Article 15: Search of premises and seizure of evidence.......................................... Third meeting Drafting and negotiation of a protocol on illicit trade in tobacco products (continued) Part IV: Offences and sanctions (continued) .............................................................. • Article 16: Confiscation and seizure of assets ........................................................ • Article 17: Seizure payments .................................................................................. • Article 18: Destruction............................................................................................ Fourth meeting Drafting and negotiation of a protocol on illicit trade in tobacco products (continued) Part IV: Offences and sanctions (continued) .............................................................. • Article 19: Special investigative techniques ........................................................... Fifth meeting Drafting and negotiation of a protocol on illicit trade in tobacco products (continued) Part IV: Offences and sanctions (continued) .............................................................. • Article 19: Special investigative techniques (continued)........................................ • Article 12: Offences (continued)............................................................................. Sixth meeting Drafting and negotiation of a protocol on illicit trade in tobacco products (continued) Part IV: Offences and sanctions (continued) .............................................................. • Article 12: Offences (continued)............................................................................. Seventh meeting Drafting and negotiation of a protocol on illicit trade in tobacco products (continued) Part IV: Offences and sanctions (continued) .............................................................. • Article 12: Offences (continued).............................................................................
119 119 119 126
127 127 132 132
136 136
145 145 147
155 155
162 162
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Page Part V: International cooperation................................................................................ • Article 20: Information sharing: statistical data ...................................................... • Article 21: Information sharing: operational data ................................................... • Article 22: Information sharing: confidentiality and protection of information...... • Article 23: Assistance and cooperation: training, technical assistance and cooperation in scientific, technical and technological matters ................................ Eighth meeting 1. Drafting and negotiation of a protocol on illicit trade in tobacco products (continued) Part V: International cooperation (continued) ............................................................ • Article 24: Assistance and cooperation: investigation and prosecution of offences • Article 25: Protection of sovereignty ...................................................................... • Article 26: Jurisdication .......................................................................................... Part IV: Offences and sanctions (continued) .............................................................. • Article 12: Offences (continued) ............................................................................. Part V: International cooperation (continued) ............................................................ • Article 27: Joint investigations................................................................................ • Article 28: Law enforcement cooperation............................................................... • Article 29: Mutual administrative assistance .......................................................... • Article 30: Mutual legal assistance.......................................................................... • Article 31: Measures to ensure prosecution or extradition...................................... • Article 32: Prosecution of alleged offenders ........................................................... • Article 33: Extradition of alleged offenders............................................................ Part IV: Offences and sanctions (resumed)................................................................. • Article 12: Offences (resumed) ............................................................................... Closure of the session............................................................................................................ 163 163 166 166 168
172 172 173 174 175 175 176 176 176 176 178 180 180 180 181 181 181 182
2.
List of participants........................................................................................................................... _______________
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AGENDA1 1. Opening of the session 1.1 1.2 2. Election of officers Report on credentials
Adoption of the agenda and organization of work Document FCTC/COP/INB-IT/3/1
3.
Progress since the second session of the Intergovernmental Negotiating Body on a Protocol on Illicit Trade in Tobacco Products Documents FCTC/COP/INB-IT/3/2 and FCTC/COP/INB-IT/3/INF.DOC./1
4.
Revised Chairperson’s text for a protocol on illicit trade in tobacco products and general debate Documents FCTC/COP/INB-IT/3/3, FCTC/COP/INB-IT/3/INF.DOC./2, FCTC/COP/INB-IT/3/INF.DOC./3, FCTC/COP/INB-IT/3/INF.DOC./4, FCTC/COP/INB-IT/3/INF.DOC./5, FCTC/COP/INB-IT/3/INF.DOC./6 and FCTC/COP/INB-IT/3/INF.DOC./7
5.
Drafting and negotiation of a protocol on illicit trade in tobacco products Document FCTC/COP/INB-IT/3/3
6.
Dates and venues of the fourth session of the Intergovernmental Negotiating Body and of planned work between sessions Closure of the session Document FCTC/COP/INB-IT/2/3
7.
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1
As adopted by the Intergovernmental Negotiating Body at its first plenary meeting.
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LIST OF DOCUMENTS FCTC/COP/INB-IT/3/1 FCTC/COP/INB-IT/3/2 Agenda1 Progress since the second session of the Intergovernmental Negotiating Body on a Protocol on Illicit Trade in Tobacco Products. Report by the Convention Secretariat Revised Chairperson’s text for a protocol on illicit trade in tobacco products Report on credentials Negotiating text for a protocol to eliminate illicit trade in tobacco products
FCTC/COP/INB-IT/3/3
FCTC/COP/INB-IT/3/4 Rev. 1 FCTC/COP/INB-IT/3/5 Rev. 1
Information documents FCTC/COP/INB-IT/3/INF.DOC./1 Revised Chairperson’s text for a protocol on illicit trade in tobacco products, and general debate. Report of the Intergovernmental Negotiating Body to the third session of the Conference of the Parties on the progress of its work Revised Chairperson’s text for a protocol on illicit trade in tobacco products. Note by the Chairperson Revised Chairperson’s text for a protocol on illicit trade in tobacco products, and general debate. Expert review on a possible ban on duty-free sales of tobacco products Revised Chairperson’s text for a protocol on illicit trade in tobacco products, and general debate. Expert review on a possible ban on Internet sales of tobacco products Revised Chairperson’s text for a protocol on illicit trade in tobacco products. Expert review on the feasibility of an international track-and-trace regime for tobacco products Revised Chairperson’s text for a protocol on illicit trade in tobacco products, and general debate. Legal advice on the scope of the protocol
FCTC/COP/INB-IT/3/INF.DOC./2
FCTC/COP/INB-IT/3/INF.DOC./3
FCTC/COP/INB-IT/3/INF.DOC./4
FCTC/COP/INB-IT/3/INF.DOC./5
FCTC/COP/INB-IT/3/INF.DOC./6
1
See page ix.
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INB: PROTOCOL ON ILLICIT TRADE IN TOBACCO PRODUCTS – THIRD SESSION
FCTC/COP/INB-IT/3/INF.DOC./7
Revised Chairperson’s text for a protocol on illicit trade in tobacco products. Relationship of the protocol to other international instruments Revised Chairperson’s text for a protocol on illicit trade in tobacco products, and general debate. Assessment of potential requirements at national level for an international tracking and tracing system for tobacco products
FCTC/COP/INB-IT/3/INF.DOC./8
Diverse documents FCTC/COP/INB-IT/3/DIV/1 Rev.1 FCTC/COP/INB-IT/3/DIV/2 List of participants Guide for Participants in the Intergovernmental Negotiating Body
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SUMMARY RECORDS OF MEETINGS OF COMMITTEES
COMMITTEE A FIRST MEETING Tuesday, 30 June 2009, at 10:25 Acting chair: Mr V. TRIVEDI (Convention Secretariat) Chair: Mr S. SHAKERIAN (Islamic Republic of Iran)
1.
OPENING OF THE COMMITTEE: Item 1 of the Agenda The ACTING CHAIR declared open the first meeting of Committee A.
Election of officers The ACTING CHAIR, recalling that the plenary session of the previous day had proposed Mr S. Shakerian of the Islamic Republic of Iran as the Chair of Committee A, asked whether the Committee wished to approve the appointment of Mr Shakerian. It was so decided. The ACTING CHAIR, recalling also that the plenary session had proposed Dr M.E. Anibueze of Nigeria and Dr P. Vivili of Tonga as the Vice-Chairs of Committee A, asked whether the Committee wished to approve the appointment of Dr Anibueze and Dr Vivili. It was so decided. Mr Shakerian took the Chair.
2.
DRAFTING AND NEGOTIATION OF A PROTOCOL ON ILLICIT TRADE IN TOBACCO PRODUCTS: Item 5 of the Agenda (Documents FCTC/COP/INB-IT/3/3, FCTC/COP/INB-IT/3/INF.DOC./1, FCTC/COP/INB-IT/3/INF.DOC./2, FCTC/COP/INBIT/3/INF.DOC./5, FCTC/COP/INB-IT/3/INF.DOC./6 and FCTC/COP/INB-IT/3/INF.DOC./8)
Part III: Supply chain control The CHAIR recalled that the Committee’s purpose was to consider Part III, Supply chain control, of the Chairperson’s text of a Protocol on illicit trade in tobacco products, as revised by the Chairperson of the Intergovernmental Negotiating Body, who would be present in the Committee in order to respond to any doubts that had arisen during the Parties’ study of the text. The initial meeting would aim to clarify existing text. Of the seven articles in Part III, he proposed to start with Articles 5, 6, 7 and 8. In subsequent meetings, Parties would be invited to make comments and suggestions for amendments following which he would attempt to accommodate the differing views and to produce a text in which the points of contention had been resolved; where that had not been achieved, the text
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would show the varying positions in square brackets. Drawing attention to the text in the Annex to document FCTC/COP/INB-IT/3/3, he opened the floor for any points of clarification on Article 5. • Article 5: Licence or equivalent approval system Mr GÖRÜN (Turkey) suggested that the term “competent authority”, first used in Article 5, should be included in the list of definitions contained in Article 1. He also sought clarification of the term “primary processing of tobacco” in subparagraph 1(e). Dr ABOU AL ZAHAB (Syrian Arab Republic), referring to subparagraph 1(c), requested that reference be made to retailing as well as to wholesaling of tobacco products. The term “commercial quantities” in subparagraph 1(d) should be made be more specific. He too questioned the meaning of “primary processing of tobacco” and requested that some examples be given. Mr WALTON-GEORGE (European Community), speaking in his capacity as Chairperson of the Intergovernmental Negotiating Body, explained that “primary processing of tobacco” meant the first major processes that took place on tobacco leaf after it had been grown, such as drying, curing, cutting and stem-removal. With regard to the definition of “competent authority”, he considered that it was a matter for the Parties themselves to decide who their competent authorities were. As for the definition of “commercial quantities”, he recalled that the second session of the Intergovernmental Negotiating Body had been unable to decide on a reasonable cut-off figure, leaving the text as “x tonnes of tobacco”. The intention was to exclude very small-scale activities, while capturing significant business activity. The actual figure might be a matter for individual Parties to decide, since it would vary according to the size of the country and the number of growers and manufacturers. Ms MADRAZO REYNOSO (Mexico) drew attention to a very common situation in the WHO Region of the Americas, namely very small-scale cultivation of tobacco by peasant farmers, generally for their own consumption. Such farmers were generally not registered as commercial entities, and did not pay taxes. She asked whether consideration had been given to artisanal production of tobacco and tobacco products, because it seemed that the Article had been written with a view to covering only commercial establishments. Noting that subparagraph 3(b)(vi) stipulated that an applicant for a licence must provide documentation relating to past criminal offences, she said that in her country the procedure was the reverse: it was the responsibility of the authorities to investigate whether or not the applicant to be licensed as a commercial entity had a criminal record. Turning to subparagraph 3(b)(vii), she said that in many countries of her Region it would be illegal for bank account details to be revealed. Mr WALTON-GEORGE (European Community), speaking in his capacity as Chairperson of the Intergovernmental Negotiating Body, said that account had certainly been taken of the concerns expressed by a number of Parties about placing undue burdens on very small-scale growers and retailers. It was not intended to include operations of that scale within the licensing regime, unless the Parties wished to do so; rather, the protocol was aimed directly at commercial-scale activities, such as importing and exporting. Dr AL-LAWATI (Oman) recalled that in the plenary meeting, Oman, supported by Turkey, had requested a clear definition of “manufacturing equipment” and that was still needed. He also believed that “commercial quantities” should be more specifically defined in the present session. Noting that in many countries the primary processing of tobacco was carried out using unsophisticated manual methods, by small-scale growers, he asked whether such small-scale operations would need a licence.
SUMMARY RECORDS: COMMITTEE A – FIRST MEETING
5
Mr NICOLAS (Philippines) asked for clarification of “brokering” in subparagraph 1(c), which seemed to him a very general term. Mr WALTON-GEORGE (European Community), speaking in his capacity as Chairperson of the Intergovernmental Negotiating Body, repeated that the intention was not to bring small-scale growers within the scope of the protocol. With regard to “brokering”, the intention had been to ensure that any major players in the supply chain of cigarettes and other tobacco products were caught in the licensing system. Mr YEO Sew Meng (Singapore), referring to subparagraph 1(d), requested clarification of the term “commercial quantities” and asked whether the subparagraph was intended to cover all kinds of transportation, including small-scale trucks, ships and aircraft. The CHAIR said that the definition of “commercial quantities” could be negotiated in a smaller group. Mr OOKA (Japan) requested clarification of the word “distribution” as used in subparagraph 1(c), as the concept seemed to be expressed elsewhere in the paragraph. Mr GAO Xingzhi (China) asked whether the documentation mentioned in subparagraph 3(b)(vi) was to be provided by the applicant or was to be verified by relevant government agencies, and whether the provision of such information would be a requirement for the granting of the licence. Mr WALTON-GEORGE (European Community), speaking in his capacity as Chairperson of the Intergovernmental Negotiating Body, responding to the question by Singapore, said that the intention was to target commercial transportation and not to capture small-scale operations. In response to the question from Japan on “distribution”, he said that there might be a duplication with “transporting” in subparagraph 1(d); it might be possible to combine the two ideas. Concerning the question from China, it was envisaged that the applicant would provide documentation concerning past criminal offences, but clearly the Party could approach the relevant authorities if it wished to verify the information. The CHAIR, responding to a question from Mr JADOENATHMISSIER (Suriname), said that it would be for the Parties to decide on the time frame for expiration referred to in subparagraph 3(f). Mr AL BAKER (United Arab Emirates), referring to subparagraph 3(b)(vi), asked whether having a criminal record would automatically disqualify an applicant from obtaining a licence, since offences evidently varied in severity. He asked about cases wherein applicants had faced allegations or criminal charges. He also sought clarification of the phrase “government agencies”. Subparagraph 3(b)(vii), referring to bank accounts, could risk infringing banking secrecy. Turning to subparagraph 3(b)(iv), he requested clarification of the words “registered trade mark, if any”, whether a licence could be granted to a person who did not own a registered trade mark; and whether, assuming that an applicant met all the requirements, a licence would be granted automatically, or only at the discretion of the competent authorities. The CHAIR expressed the view that attempting to negotiate every detail at the present stage would result in a situation in which it would prove impossible to agree on the content of a protocol at all. The purpose of the present meetings was to lay out a broad path for the Parties to follow. Mr WALTON-GEORGE (European Community), speaking in his capacity as Chairperson of the Intergovernmental Negotiating Body, said that ideally, all of the elements in paragraph 3 should be present in order for a licence to be granted. The Party must have the option of refusing a licence to an
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applicant who had a criminal record; additional wording to that effect could perhaps be added to the Article. Subparagraph 3(b)(vii) required an applicant to give their bank account details to the competent authority, a commonplace procedure that should not give rise to issues of banking secrecy. The purpose of the phrase “registered trademark, if any” was to ensure that ownership of trademarked products was reported. The intention was not that an applicant needed to obtain a trademark in order to have a licence. Mr SAZANOV (alternate to Mr Nebenzia, Russian Federation) asked whether each Party could define the terms used in subparagraph 3(b)(viii), or whether there should be a shared understanding because when a distributor was obtaining a licence he would have to state which markets he would be supplying and in what quantities. Mr SOLOMON (WHO Secretariat, Office of the Legal Counsel) said that he wished to underscore the remarks made by the Chairperson of the Intergovernmental Negotiating Body concerning the licensing criteria. Subparagraph 3(b) was very important, because it set out the information required in each application; the use of the wording “should” emphasized that it would be for the individual Parties to assess the relevance of the criteria in each case. Mr AL BAKER (United Arab Emirates) said that if States were to be responsible for setting the conditions for the granting of licences then that should be explicitly stated in the protocol; otherwise, it could create difficulties for some Parties. The CHAIR said that the Article gave a non-exhaustive list of conditions that could be applied at the discretion of the Parties. More explicit statements on the responsibility of Parties could be proposed when the text of the Article was negotiated. (For continuation of the discussion on Article 5, see summary record of the second meeting.) • Article 6: Customer identification and verification Mr TORRES MARTIN (Colombia) said that there were two ways of carrying out imports under the rules of international trade, through either non-automatic or automatic licences. He asked whether subparagraph 1(a)(i) and paragraph 2 meant that Parties would be expected to implement nonautomatic import licensing for tobacco. Professor TIDJANI (Togo) said that subparagraph 8(e) clearly showed that a “blocked” designation would be automatically lifted if the blocked customer had not engaged in illicit activities for a period of five years. In subparagraph 8(f) he would prefer the use of a phrase such as “for life” rather than “made permanent”. Mr WALTON-GEORGE (European Community), speaking in his capacity as Chairperson of the Intergovernmental Negotiating Body and referring to the question by Colombia, said that the protocol would require an importer of tobacco products to apply for a licence under the terms described in the Article and it would be for the individual Party to determine any such national distinctions between an automatic or non-automatic licence. Responding to the query by Togo, he said that the objective of subparagraph 8(e) was indeed to provide that a blocked customer could be brought back into the system if that customer had not engaged in illicit activity for five years; however, the intent of subparagraph 8(f) was that a customer that offended a certain number of times, that number represented at present by “x”, should not be allowed back into the system at all.
SUMMARY RECORDS: COMMITTEE A – FIRST MEETING
7
Mr AHMADI (Islamic Republic of Iran) said that in paragraph 3, the words “conduct further due diligence” and “material change in circumstances” required clarification. In paragraph 5, “small or medium-sized businesses” would need to be defined. Ms MADRAZO REYNOSO (Mexico) asked for clarification of the terms “due diligence” and “blocked customer”, as they were not used in her country. Mr WALTON-GEORGE (European Community), speaking in his capacity as Chairperson of the Intergovernmental Negotiating Body, explained that “due diligence” meant the requirement to check customers’ details, in order to ensure that the people in the supply chain were legitimate and reputable. The concept of “further due diligence” was the duty to check once again if there had been any changes in the circumstances of the customer, such as a company takeover. It would be for the Parties to decide what constituted such material or significant changes in circumstances and whether to require the licensee to carry out further checks. With regard to the concept of a “blocked customer”, he explained that if persons in the supply chain had showed themselves to be unreliable, in whatever manner, as described in the Article, then the supplier should refuse to continue dealing with those persons. Mr GÖRÜN (Turkey) sought clarification of the term “sufficient evidence” in paragraph 6. Mr TAGOE (Ghana), referring to paragraph 8, asked whether the responsibility for providing information on blocked customers was shared between the authorities and the supplier. Mr WALTON-GEORGE (European Community), speaking in his capacity as Chairperson of the Intergovernmental Negotiating Body, said that “sufficient evidence” would be defined by each Party, in accordance with its national law: in some circumstances, even in the absence of a court judgement, the competent authority might have such strong evidence that it would wish the supplier to exclude a customer from the supply chain. With regard to the responsibility for providing information, he said that the onus was on the supplier at each stage. If a supplier blocked a customer, then that supplier had to inform the designated authority which maintained the list of blocked customers. Mr AZOFF (Israel) asked whether any problems were envisaged in legislating for the provisions of paragraph 5: for example, the suspension of licences without due process, and the handover of banking details and corporate financial information to private parties, which amounted to requiring private parties to perform actions normally in the purview of the State. The CHAIR said that the important matter of due process of law for blocked customers would have to be tackled at the negotiating stage. (For continuation of the discussion on Article 6, see summary record of the third meeting.) • Article 7: Tracking and tracing Mr ROWAN (European Community) said that before the meeting could study a text, the concept of tracking and tracing required further definition and clarification; he would submit in writing a paper on the subject, prepared at length by the European Community, Brazil and Canada. He outlined key points including: the essential principle of a global tracking and tracing system and the minimum standards that would require agreement by the Parties; the requirements to which the identified manufacturers of cigarettes would be subject, and their further responsibilities; and the identification of a body (e.g. WHO) that would be responsible for securing agreements with those manufacturers that would be subject to a global tracking and tracing system. He emphasized the
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difficulties in reaching binding agreements with the tobacco industry. The paper would also consider procedures and markings and the capture of those onto databases; updating of scanning and coding technologies; and extension of the requirements of tracking and tracing to all tobacco products. The CHAIR thanked the European Community for its paper which should be distributed to all delegations and examined at the negotiating stage. Ms MADOUGOU (Benin), referring to tracking and tracing systems and the constraints envisaged during the implementation phase, asked what measures would be taken by the Convention Secretariat or the Intergovernmental Negotiating Body to allow for successful tracking of tobacco and tobacco products by all the Parties. Professor TIDJANI (Togo) said that tracking and tracing systems were very important to the countries of sub-Saharan Africa, where smuggling and illicit trade in tobacco were a real problem. Unique markings should be affixed at every stage, from the master cases to the packs, and bar codes should link the carton to the pack. The CHAIR, responding to the remarks of Mr AL BAKER (United Arab Emirates) regarding the need for a central access point to the clearing-house database in order to facilitate exchange of information between the Parties, noted that specific proposals would be considered at the negotiation stage. Mr MBUGUA (Kenya) said that smuggling and illicit trade in tobacco brought considerable problems to his country; consequently, Kenya fully supported Article 7. Mr AHMADI (Islamic Republic of Iran) sought clarification of the term “central point”, as used in paragraph 7. Mr GÖRÜN (Turkey), referring to the requirement in subparagraph 3(a) that, once the technology was sufficiently developed, marking should be applied to individual cigarette packs, asked whether there would still be a need to affix the markings to the master cases and cartons, or whether that could then be discontinued. Mr WALTON-GEORGE (European Community), speaking in his capacity as Chairperson of the Intergovernmental Negotiating Body, said that the central point would be a destination in each State Party, to which data from manufacturers or importers in that Party would be sent; each national central point would then send the data to a clearing-house which would represent an international central point, located at WHO. With regard to future technology for marking individual packs of cigarettes, he said that to discontinue the marking of master cases and cartons would depend on whether the technology was sufficiently advanced to link the markings on individual packs to the database. Ms MADRAZO REYNOSO (Mexico), referring to subparagraph 4(e), sought clarification of the term “payment record”. Dr PRASAD (India) said that there was a need to demystify the concept of tracking and tracing. Each country would first have its own tracking and tracing system, for its own domestic purposes, and not all information in the national systems would need to go to the global tracking and tracing regime. Mr AL BAKER (United Arab Emirates) asked whether the criteria that each country would have to follow in establishing a national tracking and tracing system would be set by the countries themselves, in line with their particular circumstances, or whether they would be imposed from outside. He asked how compliance with the criteria would be monitored, and whether an international
SUMMARY RECORDS: COMMITTEE A – FIRST MEETING
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supervisory body would check that countries were applying the criteria properly. Some of the deadlines referred to in the Article might be problematical and therefore more flexible time periods might have to be allowed to take account of national circumstances. Mr FISCH BERREDO MENEZES (Brazil), referring to subparagraph 12(c), said that Brazil already possessed “the technology to mark and scan cigarette packs” there was no need to wait for further development of the technology. Mr GAO Xingzhi (China) asked whether Parties should establish their national tracking and tracing systems primarily for the purpose of setting up a global system, or whether Parties should first establish a tracking and tracing system to meet their own needs. He asked whether the term “unique markings” mentioned in paragraph 4 referred to bar codes and at what stage of production those were to be affixed to tobacco packaging. Mr WALTON-GEORGE (European Community), speaking in his capacity as Chairperson of the Intergovernmental Negotiating Body and referring to the question by Mexico about subparagraph 4(e), confirmed that “payment record” referred to the past history of payments made by a customer including the account numbers, dates and methods of payments. In response to the question by the United Arab Emirates about the criteria for a national system, he said that each country’s national system, while meeting the needs of the country itself, must also be able to provide the information that was required at the global level. Thus, as China had correctly indicated, the setting up of a national system should take account of the requirements of the international system. As to China’s second question, he said that a unique marking was generally a bar code or a three-dimensional code affixed to the packaging of the tobacco products, either at the time of manufacture or at the moment of import if the shipment were coming from a country that was not a Party to the protocol. Ms KIPTUI (Kenya) said that Kenya had envisaged regional as well as national tracking and tracing systems that would enable neighbouring countries to prevent the export of tobacco products for the sole purpose of reimportation as contraband. Kenya believed that the technology to apply unique markings down to the pack level already existed. Mr AL-ZADJALI (Oman) asked whether the tracking and tracing system would also cover products that were duty-free. Mr ANIBUEZE (Nigeria) asked how it would be possible for the unique markings to contain all of the information listed in paragraph 4. Mr WALTON-GEORGE (European Community), speaking in his capacity as Chairperson of the Intergovernmental Negotiating Body, said that the protocol was intended to cover all products, including those destined for tax-free markets: all products would be marked and tracked. Turning to the question by Nigeria, he clarified that the unique markings themselves would not contain all the data elements listed; the markings would allow a link to be made to the database held by the manufacturer or in the central point, which would provide all the remaining elements. Mr SAZANOV (alternate to Mr Nebenzia, Russian Federation) asked whether it was necessary to capture the very considerable amount of information listed in paragraph 4. Mr BALOCH (Pakistan) observed that as a tool, tracking and tracing was vital to lowering his country’s annual toll of 60 000 deaths from tobacco use. Legislation already ensured that no pack of cigarettes could be sold without an excise stamp, and that tobacco manufacturers bore the cost of the tracking measures. However, the steps taken would only be effective with a global tracking and
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tracing system that would provide information on manufacturers anywhere in the world if their products were found in suspicious circumstances. Pakistan appealed to every Party to support the principles of Article 7. Mr KABWEBWE TSHILOMBO (Democratic Republic of the Congo), referring to subparagraph 4(a), wondered whether, in addition to the date of manufacture, the expiry date should also be given. Mr WALTON-GEORGE (European Community), speaking in his capacity as Chairperson of the Intergovernmental Negotiating Body, replying to the Russian Federation, said that in his view, all of the data elements listed would be useful, but it would be for the Parties to take the final decision on what to include. Observing that the other points raised were matters for negotiation, he welcomed Pakistan’s strong expression of support for Article 7. (Resumed below, following discussion of Article 8.) • Article 8: Record-keeping Mr AL BAKER (United Arab Emirates) observed that national legislation generally contained provisions concerning the length of time for which records should be kept; he recommended that any maximum period in the protocol should be set in accordance with national legislation. Mr OOKA (Japan) said that the requirement in paragraph 1 to “maintain complete and accurate records of all transactions” seemed a little vague. Ms MADRAZO REYNOSO (Mexico) requested clarification of the concepts of “duty suspension” in subparagraph 2(b) and “duty-suspended movement” in paragraph 3. Mr WALTON-GEORGE (European Community), speaking in his capacity as Chairperson of the Intergovernmental Negotiating Body, said that the time period for keeping records, was set at “no fewer than five years” in subparagraph 5(a), although the final duration was still to be negotiated. With regard to Japan’s comment on “complete and accurate records”, he felt that any more detailed stipulation should be left to the Parties. In response to the question from Mexico, he explained that “duty suspension” and “duty-suspended movement” were customs terms: for example, goods liable to duties and taxes under certain customs procedures could benefit from a regime in which the duty payments were suspended until the goods had been released for home consumption. • Article 7: Tracking and tracing (resumed) The CHAIR, affirming the morning’s constructive exchanges and clarifications, proposed that an open-ended working group be established to work further on Article 7, tracking and tracing, which was a basic pillar of the protocol. The group would first meet at the end of the present day’s deliberations, although during the negotiation phase it might have to work in parallel with the Committee. Responding to a question from Mr AL ZADJALI (Oman), he said that the working group would work on the text of Article 7 as a whole. Mr AL BAKER (United Arab Emirates), supported by the representatives of Benin, China and the Republic of Korea, while welcoming the determination of the Chair to make rapid progress and conclude the Committee’s work, considered that Article 7, and in particular the tracking and tracing system, formed the very crux of the protocol. Therefore it should not be discussed in a small group,
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particularly if the group was going to meet in parallel with the Committee, perhaps without interpretation. The CHAIR said that the working group would not meet in parallel with the Committee and it would have interpretation. Discussions in the working group would be non-binding and all of its conclusions would come back to the Committee for approval. He recalled that in past meetings, seemingly intractably contentious items had been resolved in a smaller group. If it should transpire that there was no benefit to working in a smaller group, then the discussion could be brought back to the Committee. Mr GAO Xingzhi (China) thanked the Chair for his explanations. However, China still felt that it would not be appropriate to establish a working group until the Article had been discussed in the Committee: if consensus could not be reached on particular aspects of the Article, then a working group could be established to consider those points. The CHAIR asked representatives to indicate whether they were in favour of establishing a working group. Dr OROCHENA SANTANA (Nicaragua), speaking on behalf of the Parties in the WHO Region of the Americas, said that that working groups should not meet in parallel with the Committee as some countries in the Region had only one representative present. The CHAIR pointed out that the group would not be meeting in parallel with the Committee: it would meet at the end of the afternoon meeting. Dr OROCHENA SANTANA (Nicaragua) said that the Parties in the Region would discuss the question and respond later that afternoon. Dr ANIBUEZE (Nigeria) suggested that the Chair should explain further the working methods that he had suggested. He supported the move towards negotiations in a smaller group. The CHAIR said that, in the light of the views expressed thus far, a decision on whether to form a working group on Article 7 could be deferred until the Committee had completed its work at the end of the day. (For continuation of the discussion on Article 7, see summary record of the second meeting.)
The meeting rose at 13:20.
SECOND MEETING Tuesday, 30 June 2009, at 15:20 Chair: Mr S. SHAKERIAN (Islamic Republic of Iran)
DRAFTING AND NEGOTIATION OF A PROTOCOL ON ILLICIT TRADE IN TOBACCO PRODUCTS: Item 5 of the Agenda (Documents FCTC/COP/INB-IT/3/3, FCTC/COP/INBIT/3/INF.DOC./1, FCTC/COP/INB-IT/3/INF.DOC./2, FCTC/COP/INB-IT/3/INF.DOC./5, FCTC/COP/INBIT/3/INF.DOC./6 and FCTC/COP/INB-IT/3/INF.DOC./8) (continued) Part III: Supply chain control (continued) • Article 7: Tracking and tracing (continued) The CHAIR, noting that the tracking and tracing system was at the heart of the protocol, said that he proposed to start with consideration of Article 7. Encouraging participants to give their proposals for additions, deletions or changes, he urged them not to make general comments but to go directly to the issue. As well as presenting their proposals orally, representatives should submit them in writing. The CHAIR said that after receiving the proposals he would approach representatives and try to resolve points of contention before producing a paper reflecting all the proposals made. He asked for comments on paragraph 1. Mr TAGOE (Ghana) suggested that “clearing-house database” in the third line of paragraph 1 should be defined since it could have different meanings in information technology. The CHAIR recalled that all definitions were contained in Article 1. Since that was not under the responsibility of the Committee, he would convey the suggestion to the Chairperson of the Intergovernmental Negotiating Body. Mr ROWAN (European Community) suggested that the meeting discuss the paper he had presented at the first meeting, also on behalf of Brazil and Canada, regarding what they perceived to be the important concept of a tracking and tracing system. He asked whether there would be support for a discussion of the paper on the projection screen because if the meeting could not agree on a concept it surely would not be able to agree on any text. The CHAIR reiterated that his procedure was to apply representatives’ proposals for amendments to the existing text. In view of the limited time available, he did not think it feasible to discuss the whole concept paper, but he would welcome any concrete proposals from the European Community for amendments to the Article. Mr AL-ZADJALI (Oman) asked whether the intent of the paragraph was that there should be a tracking and tracing system in each country, or one single global system. He noted that much of the information collected would be confidential.
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The CHAIR stated his belief that, following the clarifications given at the first meeting, the text was clear. The tracking and tracing system was based on national systems, operating together with an international clearing-house mechanism. Mr GAO Xingzhi (China) believed that the protocol should primarily encourage Parties to establish national tracking and tracing systems rather than be concerned with the establishment of a global tracking and tracing system, which could not exist without the former as a basis. China also believed that the protocol should concentrate on the collection and exchange of data concerning the illicit trade in tobacco products. Requiring countries to collect and exchange all information on the production and trading of tobacco, licit and illicit, exceeded the mandate of the protocol and increased the Parties’ workload. Even if all information on the production and trading of tobacco were collected, only a limited amount of it would be useful for combating illicit trade. Furthermore, the sharing of all data would raise issues of confidentiality under the national legislation of certain Parties. The CHAIR asked all representatives not only to give their statements of position but also to read out their proposals for amendments to the text, before giving them to the Convention Secretariat in writing. Dr PRASAD (India) proposed the use of the term “global regime” rather than “global system”, in order to distinguish it from a national or regional system. With regard to paragraph 4, he suggested that some national data would not need to be shared with the global regime. That matter could perhaps be discussed in conjunction with Article 20 on information sharing. Dr ANIBUEZE (Nigeria) proposed that in the third line of paragraph 1, after “tracking and tracing system”, the phrase “which would comprise both national and global clearing house databases” should be added. Paragraph 4 should make it clear that only the information listed in subparagraphs 4(a) to (d) would be directly contained in the unique markings, which would in turn provide a link to the database where the information listed in subparagraphs 4(e) to (j) would be held. Mr OOKA (Japan) said that, owing to concerns regarding the feasibility of establishing the global tracking and tracing system and the clearing-house database, Japan proposed that paragraph 1 should be deleted, or its second line amended to read: “the Parties to this Protocol recognize the need to establish …”. Furthermore, the second sentence, starting with “The system will comprise ...”, should be deleted. Ms KIPTUI (Kenya) proposed that the words “key inputs” should be included in paragraph 2 after “all tobacco products”. Dr VINIT (Papua New Guinea) observed that a global tracking system required a system of good governance as otherwise it could be open to abuse or manipulation. A standardized system was needed with which all Parties must comply, and a global tracking system or regime, coordinated from a central unit established under the Framework Convention. Ms YUN Mi-ran (Republic of Korea), supporting the idea of a tracking and tracing system, emphasized the issue of cost-effectiveness. Illicit trade and smuggling occurred less in her country than in others, particularly countries with many borders. She therefore questioned the necessity for such an expensive system for her country and suggested that Parties should be free to decide whether or not they needed a tracking and tracing system. The CHAIR asked whether the Republic of Korea wished to place the whole of Article 7 in square brackets.
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Ms YUN Mi-ran (Republic of Korea) replied that she was referring to paragraph 1 only. Mr FISCH BERREDO MENEZES (Brazil) affirmed that discussion was needed on the concept of what a tracking and tracing system was, and on the form of its implementation, so as not to jeopardize existing national systems and the international system being proposed in the protocol. On the basis of discussions on the previous day with the European Community and Canada, Brazil saw the need for a complete revision of Article 7. The CHAIR said that, while he appreciated Brazil’s view that the whole Article would need to be revised, his method was to proceed paragraph by paragraph. He would welcome a concrete proposal from Brazil for any amendments to paragraph 1. Mr ROWAN (European Community) said that the European Community strongly supported the principle of global tracking and tracing, but had major concerns about the concept of a clearing house because that would involve recording huge numbers of transactions every day. While illicit trade in tobacco products was very substantial, its scale did not justify a clearing house that would record all transactions worldwide. In addition, if the Parties were to be made responsible for handling the information that the manufacturers produced, the European Community could foresee several problems, including those of data protection, business secrecy and tax secrecy. The European Community saw the need for a simpler system that would still provide the information needed but not impose a huge administrative burden on the Parties. Specifically, it should be the responsibility of manufacturers to maintain a database containing all the relevant information; legally binding obligations to supply that information could be negotiated under Article 5.3 of the Framework Convention. Hence, in the event of a seizure of illicit tobacco products, the authorities of the country concerned would address an electronic request to a central body (which might be, for example, WHO). That request would be passed on to the appropriate manufacturer in order to obtain the information required, as listed in paragraph 4. The information would then be returned to the requesting location but would be accessible only to authorized persons that had undertaken appropriate confidentiality commitments. The CHAIR asked for a specific written proposal, perhaps based on the European Community’s concept paper. Dr HERMAN (Cook Islands) expressed support for paragraph 1, which provided a clear rationale for a global tracking and tracing system and a clearing house. The arguments about cost needed to be weighed against the public health consequences and other harmful effects of the illicit tobacco trade. She called on all representatives in favour to speak out. Ms KIPTUI (Kenya), voicing agreement with the previous speaker’s position, said that Kenya, too, supported paragraph 1 as it stood, with its call for a global tracking and tracing system in addition to national systems. Consideration could be given, however, to the paper produced by the European Community together with Brazil and Canada if that proposal provided for a secure system, gave accurate and relevant information to law enforcement and customs services, and did not allow the tobacco industry to gain intelligence about investigations. Kenya also proposed the deletion of “when technology is sufficiently developed” from subparagraph 3(a); and, in subparagraph 3(b), the addition of the words “key inputs and” before “manufacturing equipment”. Ms YUN Mi-ran (Republic of Korea) said that she agreed with the European Community that the idea of the clearing house database should be eliminated. One concern was possible leakage of information, because a centralized information centre could easily be targeted by hackers for highly confidential information of use to organized crime. If the clearing house database was the responsibility of WHO, the latter might well engage a company to run it, and in the event of a leakage
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of information the question would arise of whether WHO or the company was liable. It was therefore probably better for the manufacturers to be responsible for keeping the information. Dr ANIBUEZE (Nigeria) proposed that in paragraphs 7 and 8 the phrase “appropriate format” should be replaced by “internationally accepted standard format”. Dr LEWIS-FULLER (Jamaica) expressed full support for a global tracking and tracing system. The stage had been passed of merely “recognizing the need” and Jamaica saw many benefits in a system that would complement existing national systems or stimulate the establishment of new ones. Jamaica had recently uncovered several incidents of illicit trade, counterfeiting and fraud, which had significantly raised national awareness of the extent of the problem. A clearing-house database, storing all the data in one place, would simplify cross-checking. Jamaica nevertheless questioned whether the database should be maintained by the Convention Secretariat or whether a global trading or customs body might be a better keeper. Mr OOKA (Japan) proposed that in paragraph 2 the words “or other forms of cooperation that have the same effect,” should be inserted after “tracking and tracing system”, and that “and manufacturing equipment used in the manufacture of tobacco products” should be deleted. Ms YUN Mi-ran (Republic of Korea) proposed that “accessible to all Parties” should be deleted from the last sentence in paragraph 1, as such wide accessibility was very dangerous. Mr OOKA (Japan) proposed that in paragraph 3 the phrase “unless the information referred to in paragraph 4 of this Article can be otherwise determined in a timely manner” should be inserted between commas after “each Party shall”. Furthermore, the word “unique” should be deleted from the third line of paragraph 3. Mr BALOCH (Pakistan) suggested that in paragraph 3(a), the words “cigarette packs and machine-readable excise stamps or banderoles having a tracking and tracing facility” should be inserted after the word “cartons”. The CHAIR, in response to requests from Canada, Mexico and Panama for the text to be modified on the projection screen, as in the other committee meeting and for reasons of improved clarity and interpretation, recalled that when the method of work had been fully discussed, no objections had been received; furthermore, any such change would require the approval of a majority of the Committee. He urged that work should continue in the present manner, emphasizing that all proposals would be made available in a paper the next morning. Dr VINIT (Papua New Guinea), emphasizing the importance of Article 7, said that the global tracking and tracing system needed to be established correctly. Information centralized into a global system would need to be shared by all Parties and remain secure. Multinational tobacco companies were also concerned about smuggling and counterfeiting, and he was sure that they would cooperate with the Framework Convention. Furthermore, the systems created by Parties should be standardized so that information could be shared in a unified form. Mr OOI Poh Keong (Malaysia) supported the idea of a global tracking and tracing system, on top of national systems. Malaysia did not favour the replacement of “agree” in paragraph 1 by “recognize the need”, and did not agree with the deletion of “unique” from paragraph 3, because that would incapacitate the whole tracking and tracing system.
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Ms KIPTUI (Kenya) supported the idea that information in the tracking and tracing system should be accessible to all Parties. In paragraph 6, the phrase “when technology allows,” could be deleted because adequate technology already existed. In paragraph 9, she proposed that the words “key inputs” should be inserted after “other tobacco products”. She would submit a new version of paragraph 3(c) in writing. Ms LIKIBI-BOHO (Congo) said that tracking and tracing constituted a major issue for her country, owing to its very porous borders. She was in favour of unique markings, which should be placed on individual packs, since in her country people tended not to buy cigarettes in large quantities. Ms MATSAU (South Africa) said that all the positions should be recorded and then the Chair and the Convention Secretariat allowed to work together to produce a paper showing all the various proposals. She also recalled that at the previous year’s session the deadline for submission of proposals had been one hour following the end of the meeting. In response to a question from the CHAIR, Mr TRIVEDI (Convention Secretariat) said that proposals received after 19:00 could not be translated into the requisite languages in the time allowed. Dr NDYANABANGI (Uganda) said that she favoured leaving paragraph 1 unchanged, which indicated that the information would be accessible to all Parties. Otherwise the system would be powerless. Referring to paragraph 3, she took the view that the markings should also be unique, and should be placed on individual packs. In Uganda, for instance, cigarettes tended to be smuggled by the pack. Dr AL-LAWATI (Oman), stating that his country supported the establishment of a tracking and tracing system, asked whether the Convention Secretariat had reached any estimate of its cost, perhaps on the basis of the tests carried out in Bangladesh, Djibouti and Kenya. Mr PACE (Convention Secretariat) said that in the simplest scenario, tested in the three countries mentioned, the national central point was operated using generic clearing-house software provided by the Convention Secretariat. The minimum resources required had included the information technology staff to set up, configure and maintain the national central point, two servers, an Internet connection and backup equipment. The whole installation had not been very expensive. Mr KABWEBWE TSHILOMBO (Democratic Republic of the Congo) requested a modification of subparagraph 3(a): since the protocol was a legal text, it should not contain uncertainties such as the phrase “when technology is sufficiently developed”. Mrs BEGUM (Bangladesh), speaking on behalf of Parties in the WHO South-East Asia Region, expressed support for those countries that favoured a global tracking and tracing system, working with national systems. Such a system needed to be developed so as to be both practical and effective. Ms MADOUGOU (Benin) questioned whether a truly worldwide tracking and tracing system was needed, and whether a national system would not suffice, either at government level or perhaps even with respect to the tobacco product manufacturers. She supported the original wording of Article 1 which stipulated that the information should be accessible to all Parties. The suggestion that manufacturing equipment should not be covered by tracking and tracing was not logical since later articles, notably those on offences and sanctions, covered manufacturing equipment. It would be pointless to make manufacturing equipment subject to sanctions if it could not be tracked. With regard to subparagraph 4(d), she questioned the need for the markings to identify the production shift of manufacture. The last line of paragraph 7 should remain unchanged as “in an appropriate format at a central point on its territory”.
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Dr RAZAFINDRAZAKA (Madagascar) said that his country favoured a central database, secure against outsider access but accessible to all Member States. Dr KIANGI (United Republic of Tanzania) said that his country favoured establishing a national, regional and global clearing-house regime for tracking and tracing illicit tobacco, tobacco products and key inputs. Mr AHMADI (Islamic Republic of Iran) suggested that the words “endeavour to” should be deleted from the first line of paragraph 12. Since compliance with the tracking and tracing requirement was mandatory, it was vital to make cooperation among the Parties obligatory, so as to help developing country Parties reach the requisite technological level to implement the system. Ms MADRAZO REYNOSO (Mexico) sought clarification of “any known subsequent purchaser” in subparagraph 4(i), and asked why that information was relevant. Mr PACE (Convention Secretariat) replied that the phrase referred to any purchaser other than the first one. The purpose of obtaining that information was to be able to track the movement of tobacco products, not only during their production but throughout the distribution chain. Dr LEWIS-FULLER (Jamaica) questioned the proposal to insert “when technology allows” in paragraph 6. Since it was already possible to put markings on, for example, individual vaccines, it must also be possible to place them on individual packs of tobacco products, which should therefore be mandatory. The CHAIR said that that concluded the discussion on Article 7. Thanking representatives for their patience, he emphasized that Article 7 was crucial to the protocol. He had noted the divergence of views and he welcomed all the new ideas put forth. In order to be able to discuss the Article thoroughly, and still make progress with the rest of Part III of the protocol, he proposed once again to establish a working group, and asked for participants’ views on his proposal. Mr FITZGERALD (alternate to Ms Hefford, Australia) said that it would be difficult to decide on whether a working group should be set up until representatives had seen the document containing all the Parties’ proposals and had time to discuss it. The CHAIR said that if there was a single objection he must take it that the Committee was not yet ready to set up a working group. Consequently, that would not be done until representatives had received the composite text. Dr HERMAN (Cook Islands), supported by Dr ANIBUEZE (Nigeria) and Professor PRAKIT VATHESATOGKIT (Thailand, on behalf of the Parties in the WHO South-East Asia Region), said that she favoured establishing a working group. Mr AL BAKER (United Arab Emirates), while supporting the desire of the Chair to conclude the work on the protocol within the time available, said that Article 7 was too important to the protocol to be delegated to a working group. He therefore supported the position of Australia. The CHAIR said that it was his understanding that the position of the United Arab Emirates was against setting up any working group whereas Australia considered that such a group should not be formed until representatives had seen the composite paper containing all proposals. The issue could perhaps be discussed further in the regional groupings or at the next morning’s meeting of the Committee.
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He proposed that the discussion should move on to Article 5, which should be examined paragraph by paragraph. (For continuation of the discussion on Article 7, see summary record of the third meeting.) • Article 5: Licence or equivalent approval system (continued from the first meeting) Ms MADRAZO REYNOSO (Mexico), recalling that it had been explained at the first meeting that the various licensing provisions of the protocol would not apply to small-scale producers, said that it was important to state that point explicitly somewhere in the protocol. Otherwise Mexico, and possibly other Parties in the WHO Region of the Americas, might have to issue a reservation or even decline to ratify the protocol. The CHAIR suggested that Mexico should formulate a specific proposal on the matter. Mr OOKA (Japan) expressed the view that illicit trade in tobacco could be eradicated by regulating the main points of transfer of ownership of tobacco products, from manufacturing to consumption. Consequently, subparagraphs 1(b), (d) and (e) could be deleted. Furthermore, “wholesaling, brokering, warehousing or distribution” could be deleted from subparagraph 1(c). Mr AZOFF (Israel), observing that Parties operated under very different circumstances as to the scale and nature of the tobacco trade, suggested that the licensing requirements should be separated into two parts, one mandatory and one discretionary. Licensing of all importers, exporters and large manufacturers would be mandatory, because those were the factors that influenced the international supply chain. Licensing of other sectors such as warehousing or transportation was less important to the international supply chain and could therefore be left to the discretion of each Party. That approach would also solve the problem of defining “commercial”. Mr ROWAN (European Community) said that while licensing or an equivalent approval system was essential to the fight against illicit trade in tobacco products, such a system must be in full compliance with the General Agreement on Tariffs and Trade 1994. He suggested that paragraph 1 should begin: “Each Party shall prohibit the conduct of …”, the preceding considerations governed by “In light of” and “with a view to” being moved to the preamble. He emphasized proportionality in the text through careful examination of whether all of the activities listed in subparagraphs 1(a) to (e) should be part of the proposed licensing scheme. Furthermore, a clear definition of “commercial quantities” and “manufacturing equipment” was needed. Mr GÖRÜN (Turkey) recalled his statement at the first meeting that the list of definitions in Article 1 of the protocol should include one that would set the limits for primary processing of tobacco. Pending such a definition, subparagraph 1(e) should be placed in square brackets. The same applied to manufacturing equipment. The CHAIR said that the point would be communicated to the Chairperson of the Intergovernmental Negotiating Body. Dr SHEIN (Myanmar), referring to subparagraphs 1(c) and (d), said that the Parties in the WHO South-East Asia Region wanted each Party to be free to define what constituted commercial quantities. Mr MALOBOKA (Namibia) proposed that in subparagraph 1(c) the four instances of the word “or” should be deleted, so that the text would read: “commercial import, export, wholesaling, brokering, warehousing and distribution of tobacco, tobacco products and manufacturing equipment used in the manufacture of tobacco products”.
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Mr CISSE (Senegal) suggested that the entire phrase “In light of the public health objectives of the WHO Framework Convention … manufacture of tobacco products” could be omitted from paragraph 1 since that was the self-evident purpose of the protocol. The paragraph would therefore start with “Each Party shall prohibit …”. Mr NICOLAS (Philippines) drew attention to the word “prohibit” in paragraph 1, observing that generally speaking if an activity was prohibited it could not be made legal by granting a licence. Consequently, the Philippines proposed that “prohibit” should be changed to “control or regulate”, which was the term used in the Framework Convention. Dr NOBOA (Ecuador) suggested that the reference to a licence should specify that the licence must be current. He was also concerned about the Spanish term “persona física” used for “natural person”. In Ecuador and other Latin American countries, the term would be “persona natural” or “persona particular”. Mr OLDHAM (alternate to Mr Leguerrier, Canada) proposed that paragraph 1 should be simplified to read: “In light of the public health objectives of the WHO Framework Convention on Tobacco Control, each Party shall, to the extent considered appropriate in the context of its own legal, administrative, and regulatory framework, prohibit the manufacturing of tobacco products by any legal or natural person except pursuant to a licence or equivalent approval”. Dr ABOU AL ZAHAB (Syrian Arab Republic) said that since the companies involved in the production of tobacco and tobacco products might be licensed by different agencies, the phrase “competent authority” should be changed to “competent authorities”. He also proposed that subparagraph 1(c) should include a reference to retailing. Parties should have the option, rather than the obligation, of requiring retailers to have licenses. He questioned the accuracy of the Arabic translation for “primary processing of tobacco” in subparagraph 1(e). Mr GAO Xingzhi (China), referring to subparagraph 3(a), said that China did not agree with the reference to the nationality of the person. He would submit in writing his proposed rewording of the paragraph. With regard to subparagraph 3(b), he proposed the deletion of subparagraphs 3(b)(vi), (vii) and (viii). Ms LIKIBI-BOHO (Congo), referring to manufacturing in paragraph 1, emphasized that traditional manufacture of tobacco products had become increasingly widespread. Accordingly, she would submit a written proposal on the matter. Dr LEWIS-FULLER (Jamaica), referring to subparagraphs 1(c) and (d), said that she joined others in requesting that the word “commercial” needed to be defined. The quantities traded in smaller countries might seem insignificant from the viewpoint of the larger countries; therefore she suggested that the definition should be expressed not in quantities traded, but rather in terms that made clear, for example, that tobacco products were being sold for a profit. The CHAIR said that the point would be communicated to the Chairperson of the Intergovernmental Negotiating Body. Mr OLDHAM (alternate to Mr Leguerrier, Canada) said that Canada wished to delete subparagraphs 1(b) to (e), so that paragraph 1 would focus on the obligation relating to manufacturing tobacco products, and to move those four subparagraphs into paragraph 2. Dr ABOU AL ZAHAB (Syrian Arab Republic) considered that the word “manufacturing” should be inserted between “commercial growing” and “or retailing”.
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The CHAIR stated that paragraph 2 did not put the Parties under a legal obligation; it merely said “shall endeavour to license ...”. Mr SOLOMON (WHO Secretariat, Office of the Legal Counsel) upheld the Chair’s understanding: paragraph 2 stood in contrast to paragraph 1, which did establish a legal obligation. Paragraph 1 laid down a set of requirements with respect to individuals who must be licensed, while paragraph 2 set a non-binding objective with respect to another class of potential licensees. Dr ALELUIA LOPES (Guinea Bissau) said that subparagraph 3(b)(i) could be streamlined by use of the phrase “his or her complete identity” and deletion of all the particulars governed by “including ”. Mr OOKA (Japan) observed that each country had its own licensing system, so that the requirements or conditions for applying for or maintaining a licence should be primarily determined by each individual Party. Consequently, he suggested that in the introductory part of paragraph 3 “shall” should be changed to “should, in accordance with its national laws”. Dr GHAFFARI (Islamic Republic of Iran) suggested that in the second line of subparagraph 3(a), “in accordance with its national tobacco programme” should be inserted after “subject to the provisions of this Protocol,” and “irrespective of the nationality or residence of the licensee” should be deleted. Mr ROWAN (European Community) said that in the interests of proportionality, the reference to offences in subparagraph 3(b)(vi) should relate only to offences linked directly with the tobacco trade. It was essential to ensure that fundamental rights such as the presumption of innocence were fully respected. Mr AL BAKER (United Arab Emirates), recalling the commentary by the Office of the Legal Counsel at the first meeting, considered that all the requirements and conditions for issuance of a licence should be at the discretion of each individual Party. The items listed in subparagraphs 3(b)(i) to (vii) should be regarded as a guide, and paragraph 3(b) should state that explicitly. Dr ABOU AL ZAHAB (Syrian Arab Republic), referring to subparagraph 3(c), said that the costs involved in issuing a licence were set by specific agencies and the income from the fees went into the State treasury. He therefore suggested that the phrase “in accordance with the national system” should be added at an appropriate point in the subparagraph. Mr OOKA (Japan), referring to paragraph 4, said that in a case of succession or inheritance it was difficult to obtain prior approval from the authorities. Japan consequently proposed the deletion of the word “prior”. The CHAIR said that he understood the paragraph to be referring to a voluntary transfer through some kind of contract. Mr SOLOMON (WHO Secretariat, Office of the Legal Counsel) confirmed the Chair’s reading of the paragraph. Implicit in it was that no licence should be assigned and/or transferred by the licensees themselves without the prior approval of the authorities. He did not see the formulation as problematic, unless perhaps in some jurisdictions where there was a different meaning assigned to “prior approval”.
Dr LEWIS-FULLER (Jamaica) proposed the deletion of “endeavour to” from paragraph 5. The control and verification measures were the core of the system that the Parties were trying to put in
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place, but if they were optional the protocol would be weakened. Dr GHAFFARI (Islamic Republic of Iran) said that paragraph 5, dealing with the international transit of tobacco, was unclear about the responsibility of the Parties concerned. He suggested that the words “Each Party” should be followed by “within its territory”. Ms KIPTUI (Kenya) stressed that the words “key inputs” should be inserted after “tobacco products” and before “manufacturing equipment”. As a general comment, she proposed the inclusion of the words “key inputs” at any point that referred to the scope of the protocol. Mr OOKA (Japan) said that the phrase “manufacturing equipment” should be deleted from paragraph 5 as regulation did not always apply. Professor NUNTAVARN VICHIT-VADAKAN (Thailand) suggested adding to Article 5 a provision to cover reviewing, revoking, suspending and cancelling of licences of entities engaged in illicit trade. Mr YEO Sew Meng (Singapore) said that Singapore would prefer to retain “endeavour to” and would also favour the inclusion of “in accordance with its national laws” after “apply”. Mr AL BAKER (United Arab Emirates) suggested that paragraph 5 should include a reference to the existing treaties covering cross-border trade, and that the phrase “apply control and verification measures” should be followed by “in accordance with the laws of the State Party”. The CHAIR thanked representatives for their comments which would all be compiled by the following morning. (For continuation of the discussion on Article 5, see summary record of the third meeting.)
The meeting rose at 18:15.
THIRD MEETING Wednesday, 1 July 2009, at 10:40 Chair: Ms S. SHAKERIAN (Islamic Republic of Iran)
DRAFTING AND NEGOTIATION OF A PROTOCOL ON ILLICIT TRADE IN TOBACCO PRODUCTS: Item 5 of the Agenda (Documents FCTC/COP/INB-IT/3/3, FCTC/COP/INBIT/3/INF.DOC./1, FCTC/COP/INB-IT/3/INF.DOC./2, FCTC/COP/INB-IT/3/INF.DOC./5, FCTC/COP/INBIT/3/INF.DOC./6 and FCTC/COP/INB-IT/3/INF.DOC./8) (continued) Part III: Supply chain control (continued) • Article 7: Tracking and tracing (continued from the second meeting) The CHAIR drew attention to a revised draft text reflecting the proposals made by representatives on Article 7 at the first and second meetings. He requested delegations to check that their proposals had been correctly incorporated. The text read: PART III: SUPPLY CHAIN CONTROL Article 7 Tracking and tracing [1. [For the purposes of further securing the supply chain and to assist in the investigation of illicit trade in tobacco products, the Parties to this Protocol [agree] / [recognize the need] to establish a [[regional and international (global)] / [global] tracking and tracing [system] / [regime]] / [systems that meet the standard of the global tracking and tracing system] / [regional tracking and tracing system upon the consensus of the region] [that comprises of both national and global clearing house databases]. [The [system] / [regime] will comprise a clearing-house database containing the information collected by Parties pursuant to this Article, maintained by the Convention Secretariat and accessible to all Parties.]] or [For the purpose of further securing the supply chain and to assist in the investigation of illicit trade in tobacco products, the Parties to this Protocol agree to establish a global tracking and tracing system that comprises of both national and global clearing house databases. The clearing-house database shall contain the information collected by Parties pursuant to this Article, maintained by both Parties at national level and the Convention Secretariat and accessible to all Parties.] or [For the purposes of further securing the supply chain and to assist in the investigation of illicit trade in tobacco products, the Parties to this Protocol agree to establish systems that meet the standard of a global tracking and tracing system. These systems will comprise a globally coordinated entry portal enabling registered law enforcement agencies to make enquiries and - 22 -
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receive routine reports on tobacco production, the tracking and tracing of which shall be carried out by licensed manufacturers. This portal will be known as a global database providing access to information compiled pursuant to this Article, which must be maintained by the Convention Secretariat and will be accessible to all Parties.] or [For the purposes of further combating illicit trade in tobacco products, the Parties should, within three years after its acceding to, accepting, approving, formally confirming or ratifying this Protocol, establish their national tracking and tracing system. On this basis, information involving suspected illegal trade in tobacco should mutually be made available by means of bilateral or multilateral consultation.] 2. Each Party shall establish [where appropriate] or, where a relevant system exists, develop a tracking and tracing system [or other forms of cooperation that have the same effect] for all [raw material and inputs in the production of tobacco,] tobacco products[, key inputs] [and manufacturing equipment used in the manufacture of tobacco products] that are manufactured in or imported onto its territory, taking into account available best practices. 3. With a view to enabling effective tracking and tracing [where appropriate], each Party shall, within three years of accession, acceptance, approval, formal confirmation or ratification of this Protocol for that Party, require that [unique,] secure and non-removable markings[, machine readable excise stamps or banderols having a tracking and tracing facility] [the removal of such a marking shall constitute an offence under Article 12] are affixed to: (a) all [master cases and cartons of cigarettes] / [master cases, cartons and,] [[unit] packs of cigarettes and other tobacco products [containing more than one unit]] [[when technology is sufficiently developed] [in accordance with paragraph 12(c) of this Article [or otherwise, packs of cigarettes] and other tobacco products containing more than one unit]] manufactured in or imported onto its territory[; and] [(b) all [key inputs and] manufacturing equipment used in the manufacture of tobacco products that is manufactured in or imported onto its territory.] [unless the information referred to in paragraph 4 of this Article can be otherwise determined in a timely manner.] [4. Each Party [shall]/[should], as part of [its] / [such a] tracking and tracing system, require that the [unique] markings affixed, pursuant to paragraph 3 of this Article, permit, when scanned pursuant to this Protocol, determination of the following information: (a) (b) (c) (d) date and location of manufacture; manufacturing facility; machine used to manufacture tobacco products; production shift of manufacture;
[(e) the name, invoice, order number and payment record of the first customer who is not affiliated with the manufacturer;]
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[(f) [(g) [(h) [(i)
the intended market of retail sale or the intended country of installation or use;] product description;] any warehousing and shipping;] the identity of any known subsequent purchaser; and]
[(j) the intended shipment route, the shipment date, shipment destination, point of departure and consignee.]] [(k) product expiry date] or [Each Party shall, as part of its tracking and tracing system, require that the unique markings containing items a – d affixed, pursuant to paragraph 3 of this Article, permit, when scanned pursuant to this Protocol, contain a code link to items e – j in the core database in the central portal with WHO] 5. Each Party [shall] / [should] require, [unless the information referred to in paragraph 4 of this Article can be otherwise determined in a timely manner,] within [three] / [five] years of accession, acceptance, approval, formal confirmation or ratification of this Protocol [for that Party], that the information set out in paragraph 4 of this Article is recorded, by using an appropriate technology, at the time of first shipment by any manufacturer [established] on that Party’s territory or at the time of import onto its territory of products covered by paragraph 3 of this Article which have not been subject to the provisions of this Protocol. 6. Each Party [shall] / [should] ensure[, unless the information referred to in paragraph 4 of this Article can be otherwise determined in a timely manner,] that the information recorded under paragraph 5 of this Article is accessible by means of a link with the [unique] markings required under paragraph 3 of this Article to be affixed to [the manufacturing equipment used in the manufacture of tobacco products,] [unit packets of cigarettes and other tobacco products] [master cases[, cartons and, [when technology allows,] packs] of cigarettes and other tobacco products]. [7. Each Party [shall] / [should] ensure that the information recorded in accordance with paragraph 5 of this Article, as well as the unique codes rendering such information accessible in accordance with paragraph 6 of this Article shall be included [daily and] in [an [appropriate] / [internationally accepted standard] format] / [supportive international standards] at a central point on its territory.] [8. Each Party shall establish a link or interface with the central point referred to in paragraph 7 of this Article and ensure that data are transferred [daily and] in [an [appropriate] / [internationally accepted standard] format] / [supportive international standards] to the clearing-house database.] 9. Each Party shall establish the means by which a competent authority on its territory, upon any seizure being made within its territory of [raw material and inputs in the production of tobacco,] cigarettes, [or] other tobacco products[, key inputs] [or manufacturing equipment used in the manufacture of tobacco products,] can [make a request based on the unique marking on such seized products to the central point on its territory] / [require information] and shall ensure that [such [a request is passed on to the clearing-house database] / [requirement is passed on, subject to its national laws and regulations, to the Convention Secretariat] to obtain the information listed in paragraph 4 of this Article in relation to that seizure] [information is shared with other Parties].
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[10. Each Party [shall] / [should] require the further development and expansion of the scope of the applicable tracking and tracing system [as appropriate] to require the marking and recording of information relating to sales by first purchasers, second purchasers and, wherever feasible, subsequent purchasers, and to enable recording and access to such information in accordance with the provisions of this Article.] 11. Parties shall cooperate with each other to ensure that, as far as possible, the tracking and tracing systems [and/or other cooperation that has the same effect] established on their territories avoid [unnecessary costs or] duplication [of requirements [imposed on manufacturers of cigarettes, [and] other tobacco products[, key inputs] [and manufacturing equipment used in the manufacture of tobacco products]]. Where a tracking and tracing system [and/or other cooperation that has the same effect] already exists in another Party, it shall be taken into account when establishing any system [and/or cooperation] in a Party that does not currently have such a system [or cooperation]]. 12. The Parties [shall [endeavour to]] / [should] cooperate, with each other and with competent international organizations, in progressively sharing [and developing or requiring licencees to develop improved technologies] for tracking and tracing. [Such cooperation [shall] / [may] include: (a) facilitation of the development, transfer and acquisition of improved tracking and tracing technology, including knowledge, skills, capacity and expertise; (b) support for training and capacity-building programmes for Parties that express such a need; and [(c) further development of the technology to mark and scan cigarette packs and unit packs of other tobacco products to make accessible the information listed in paragraph 4 of this Article.]]] or [Article 7 Tracking and tracing 1. For the purposes of further securing the supply chain and to assist in the investigation of illicit trade in cigarettes, the Parties to this Protocol agree to establish a global tracking and tracing regime. 2. Each Party shall ensure that each manufacturer of cigarettes intended for a domestic market is subject to a global tracking and tracing regime unless the cigarettes are: (a) subject to stringent controls such as a stamping/marking regime; and
(b) not seized outside of the intended market in quantities that exceed the threshold, (e.g. frequency and quantity to be established during INB3). 3. Each Party shall ensure that each manufacturer of cigarettes intended for a non-domestic market (exports) is subject to a global tracking and tracing regime for those cigarettes. 4. With a view to enabling effective tracking and tracing, each Party shall require, within three years of accession, acceptance, approval, formal confirmation or ratification of this Protocol for that Party, that manufacturers affix unique, secure and non-removable markings to
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all master cases of cigarettes. Cartons and packs of cigarettes should be subject to the same requirements when technology is sufficiently developed. 5. Each Party shall ensure that manufacturers, as part of the tracking and tracing regime, require that the unique markings affixed, pursuant to paragraph 4 of this Article, permit determination of the following information: (a) (b) (c) (d) date and location of manufacture; manufacturing facility; machine used to manufacture cigarettes; production shift of manufacture;
(e) the name, invoice, order number and payment record of the first customer who is not affiliated with the manufacturer; (f) (g) (h) (i) the intended market of retail sale; product description; any warehousing and shipping; the identity of any known subsequent purchaser; and
(j) the intended shipment route, the shipment date, shipment destination, point of departure and consignee. 6. The information set out in paragraph 5 of this Article shall be recorded at the time of first shipment by any manufacturer established on that Party’s territory or at the time of import onto its territory of products covered by paragraph 4 of this Article and be accessible by the Party. 7. Each Party shall establish the means by which a competent authority on its territory, upon any seizure of cigarettes being made within its territory, can access the information outlined in paragraph 5. 8. The Parties shall endeavour to cooperate with each other in sharing and developing best practices for tracking and tracing. Such cooperation could include: (a) facilitation of the development, transfer and acquisition of improved tracking and tracing technology, including knowledge, skills, capacity and expertise; and (b) support for training and capacity-building programmes to Parties that express such a need. 9. In order to ensure consistency, Parties shall mandate a relevant body (WHO) to secure legal and binding agreements with all manufacturers subject to a global tracking and tracing regime, including:
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(a) the requirement that manufacturers further develop and expand the tracking and tracing regime to require the marking and recording of information relating to sales by first purchasers, second purchasers and, wherever feasible, subsequent purchasers, and to enable recording and access to such information in accordance with the provisions of this Article; and (b) ensuring manufacturers subject to a global tracking and tracing regime are responsible for all related costs.] Mr OOKA (Japan) pointed out that the phrase “unless the information referred to in paragraph 4 of this Article can be otherwise determined in a timely manner”, currently placed between square brackets as the last two lines of paragraph 3, had been intended for insertion in the introductory part, after “Each Party shall”. (Resumed below, following discussion of Article 9.) • Article 5: Licence or equivalent approval system (continued from the second meeting) The CHAIR drew attention to a revised draft text reflecting the proposals made by representatives on Article 5 at the first and second meetings. He requested delegations to check that their proposals had been correctly incorporated. The text read: PART III: SUPPLY CHAIN CONTROL Article 5 [Licence or equivalent approval system] / [Business licensing] 1. [In light of the public health objectives of the WHO Framework Convention on Tobacco Control and with a view to eliminating illicit trade in [raw material and inputs in the production of tobacco,] [tobacco,] tobacco products [not produced using traditional methods] [and manufacturing equipment used in the manufacture of tobacco products,] [subject to particular conditions of each party] each Party [shall] / [should] prohibit the conduct of any [of the following] activities by [any legal or natural person] / [the tobacco industry] except pursuant to a licence or equivalent approval (hereafter “licence”) [as appropriate] to conduct such activities granted by [a competent authority] / [competent authorities]: or [In light of the public health objectives of the WHO Framework Convention on Tobacco Control and with a view to eliminating illicit trade in tobacco, tobacco products and manufacturing equipment used in the manufacture of tobacco products, each Party shall regulate or control the conduct of any of the activities by any legal or natural person through an effective licensing system or equivalent approval system by a competent authority.] [(a) manufacturing tobacco products;
[(b) manufacturing the manufacturing equipment used in the manufacture of tobacco products;] (c) commercial import or export [or wholesaling, [retailing,] brokering, [selling individual tobacco products, as appropriate,] warehousing or distribution] of [raw material and inputs
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in the production of tobacco,] tobacco, tobacco products [or manufacturing equipment used in the manufacture of tobacco products]; or [commercial import, export, wholesaling, brokering, warehousing, and distribution of tobacco, tobacco products and manufacturing equipment used in the manufacture of tobacco products] (d) transporting commercial quantities of [raw material and inputs in the production of tobacco,] tobacco, tobacco products [or manufacturing equipment used in the manufacture of tobacco products]; and (e) primary processing of tobacco.]] or [In light of the public health objectives of the WHO Framework Convention on Tobacco Control, each Party shall, to the extent considered appropriate in the context of its own legal, administrative, and regulatory framework, prohibit the manufacturing of tobacco products by any legal or natural person except pursuant to a licence or equivalent approval] 2. [Each Party shall [endeavour to] license[, to the extent considered appropriate,] any legal or natural person engaged in commercial growing[, manufacturing] [or processing] or retailing of tobacco and tobacco products [and duty-free tobacco products].] or [Each Party should endeavour to license, to the extent considered appropriate, any legal or natural person engaged in commercial growing, wholesaling, brokering, warehousing, distributing, transporting, or retailing of tobacco or tobacco products.] or [Each Party may consider licensing, or imposing other controls on, to the extent considered appropriate, the conduct of any of the following activities by any legal or natural person: (a) manufacturing the manufacturing equipment used in the manufacture of tobacco products; (b) commercial import or export or wholesaling, brokering, warehousing or distribution of leaf tobacco, tobacco products or manufacturing equipment used in the manufacture of tobacco products; (c) transporting commercial quantities of leaf tobacco, tobacco products or manufacturing equipment used in the manufacture of tobacco products; (d) (e) primary processing of leaf tobacco; commercial growing or retailing of leaf tobacco;
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(f) retailing of manufacturing equipment used in the manufacture of tobacco products, and; (g) retailing of tobacco products.]
3. With a view to ensuring an effective licensing system, each Party [shall] / [should] [in accordance with its national laws and regulations]: (a) designate or establish a competent authority or authorities to issue, renew, suspend, revoke and/or cancel licences, subject to the provisions of this Protocol [and the laws of the party] [and in accordance with its national tobacco programme], [irrespective of the nationality or residence of the licencee,] to conduct the activities specified in paragraph 1 of this Article; (b) require that each application for a licence contains all the requisite information about the licencee, which [should] / [may] include but is not limited to: [(i) when the applicant is a natural person, information regarding his or her identity, including but not limited to full name, business [industrial or agricultural] registration number (if any), date and place of birth, applicable tax registration numbers and copy of his or her official identification;] (ii) [when the applicant is a legal person,] information regarding its identity, including but not limited to full name, business registration number, date and place of incorporation, corporate capital, applicable tax registration numbers, copies of articles of incorporation or equivalent documents, its corporate affiliates, names of its officers and directors and the names of any designated representatives, including but not limited to the representatives’ complete names and copies of their official identification; (iii) precise business location of the manufacturing unit(s) and production capacity [and installed capacity] of the business run by the applicant; (iv) details of the [raw material and inputs in the production of tobacco,] [tobacco,] tobacco products [and manufacturing equipment used in the manufacture of tobacco products] covered by the application, such as product description, name, registered trade mark, if any, design, brand, model or make; [(v) a description of where manufacturing equipment for use in the manufacture of tobacco products will be installed and used;] (vi) [documentation regarding any offences committed or charges filed by government agencies, including criminal records; or [disclosure of all criminal records or judicial proceedings connected with the tobacco business or licensing system] (vii) [complete identification of the bank accounts intended to be used in the relevant transactions and other relevant payment details] or
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[indicate the number of bank account or bank accounts that will be used in the relevant transactions, in connection with the growing, manufacturing, sale, distribution, import, export, or other activity, relating to tobacco, tobacco products, and manufacturing equipment]; and (viii) [a description of the intended use and intended market of retail sale of the tobacco or tobacco products[, with particular attention to ensuring that tobacco product production or supply is commensurate with reasonably anticipated demand];] or [a description of the intended use and intended retail outlets of the tobacco or tobacco products with particular attention ensuring this production or supply is reasonably commensurate with anticipated markets demand.] [(c) provide that the competent authority or authorities shall refuse to grant a licence to conduct the activities specified in paragraph 1 of this Article if the information provided in the licence application or any other information available to the authority or authorities indicates that the applicant is unfit to carry out the activities covered by the application] (c) / [(d)] monitor and collect any licence fees that may be levied and consider using them in effective administration and enforcement of the licensing system or for public health or any other related activity [or in accordance with local laws and regulations]; (d) / [(e)] take appropriate measures to prevent, detect and investigate any irregular or fraudulent practices in the operation of the licensing system; (e) / [(f)] licencees; undertake measures such as periodic review, renewal, inspection or audit of
(f) / [(g)] establish a time frame for expiration of licences and subsequent requisite reapplication or updating of application information; and (g) / [(h)] oblige licensed or equivalently approved manufacturers of tobacco products [and manufacturing equipment used in the manufacture of tobacco products] to inform the competent authority six months in advance of any change of location of their business [or their production capacity or the introduction of new machines and new production processes]. 4. Each Party [shall]/[must] ensure that no licence shall be assigned and/or transferred without [prior] approval from the designated or established competent authority. 5. Each Party shall [within its territory] [endeavour to] adopt and apply [in accordance with its national laws] control and verification measures to the international transit of [raw material and inputs in the production of tobacco,] [tobacco,] tobacco products [and manufacturing equipment used in the manufacture of tobacco products] in conformity with the provisions of this Protocol in order to prevent illicit cross-border trade in such products [according to the domestic laws of the States Parties]. [6. These licensing provisions do not have, in any way, the purpose of certifying the quality or security of tobacco products.]
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[6.bis Each party shall, when satisfied that any person licensed in accordance with this Article is unfit to conduct the activities covered by the licence, including on the basis of evidence that the person has engaged in illicit trade in tobacco, tobacco products or manufacturing equipment used in the manufacture of tobacco products, suspend or cancel that person’s licence.] Ms LIKIBI-BOHO (Congo) pointed out that her request for retailing to be included in subparagraph 1(c) had not been reflected in the French version of the document. The CHAIR said that the omission would be corrected. Dr ABOU AL ZAHAB (Syrian Arab Republic) said that, in paragraph 2, his delegation wished the concept of “commercial growing” to be expanded to “commercial or industrial growing”. Dr TSETSEGDARI (Mongolia) said that licensing was an important restriction on retail sales, in the absence of which tobacco products would be on sale everywhere in Mongolia, even in schools or health and cultural facilities. She noted that “retailing” was included in the first option for subparagraph 1(c), but not in the second. Mr OOKA (Japan) said that Japan’s proposal to delete subparagraphs 1(d) and (e) was not reflected in the document under consideration. The CHAIR said that the proposal of Japan and the comments by the Syrian Arab Republic and Mongolia would be taken into account. Dr AL-HALWAJI (Bahrain) said that the wording of the third option for paragraph 1 (located underneath subparagraph 1(e)) was confusing, at least in the Arabic version. It should therefore be redrafted. The CHAIR said that that issue would be addressed at the time of negotiating the text. Mr MBUGUA (Kenya) noted that the phrase “raw materials and inputs” had been used instead of his delegation’s proposal for the insertion of “key inputs” whenever there was a reference to tobacco or tobacco products. The CHAIR said that that error would be corrected. Dr ABOU AL ZAHAB (Syrian Arab Republic) said that the expression “primary processing of tobacco” in paragraph 1 had not been correctly translated in the Arabic version of the text. The CHAIR said that the purpose of the meeting was not to negotiate changes to the text but to ensure that all suggestions made at the previous meeting had been correctly captured. Dr ANIBUEZE (Nigeria) said that his delegation would be able to follow the discussion more easily if representatives identified the documents to which their comments referred. The CHAIR pointed out that the discussion of Article 5 had been based on the revised draft text pertaining to that Article. (For continuation of the discussion on Article 5, see summary record of the fifth meeting.)
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• Article 6: Customer identification and verification (continued from the first meeting) The CHAIR drew attention to a revised draft text reflecting representatives’ proposals on Article 6. He requested delegations to check that their proposals had been correctly incorporated. The text read: PART III: SUPPLY CHAIN CONTROL [Article 6 Customer identification and verification 1. Each Party shall: (a) obligate all natural and legal persons engaged in: (i) selling commercial quantities of tobacco or the manufacture, sale, distribution, storage, shipment, import or export of tobacco products, [excluding] the final retailer and persons importing tobacco products for their personal consumption, and/or [(ii) the manufacture, sale, distribution, storage, shipment, import or export of equipment used in the manufacture of tobacco products,] to conduct due diligence with respect to any natural or legal person (“first purchaser”) with which they engage in a commercial transaction; and (b) require that any first purchaser who sells, distributes or ships [raw material and inputs in the production of tobacco products,] tobacco, tobacco products, [key inputs,] [or equipment used in the manufacture of tobacco products] to further natural or legal persons shall also require such persons to conduct due diligence on the persons (other than final consumers) to which they subsequently sell, distribute or ship [raw material and inputs in the production of tobacco products,] tobacco, tobacco products, [key inputs,] [or equipment used in the manufacture of tobacco products]. 2. Due diligence pursuant to paragraph 1 of this Article shall include requirements for customer identification, such as obtaining information relating to, but not limited to, the following, to the extent reasonably available: (a) establishing that the legal or natural person holds a valid licence in accordance with Article 5, if applicable; (b) when the customer is a natural person, information regarding his or her identity, including but not limited to full name, business registration number (if any), date and place of birth, applicable tax registration numbers and copy of his or her official identification; (c) when the customer is a legal person, information regarding its identity, including but not limited to full name, business registration number, date and place of incorporation, corporate capital, applicable tax registration numbers, copies of Articles of incorporation or equivalent documents, its corporate affiliates, names of its officers and directors and the names of any designated representatives, including but not limited to the representatives’ complete names and copies of their official identification;
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(d) documentation regarding any offences committed or charges filed by government agencies [to the extent reasonably available]; (e) complete identification of the bank accounts intended to be used in the relevant transactions and other relevant payment details; (f) a description of the intended use and intended market of retail sale of the [raw material and inputs in the production of tobacco products,] tobacco products [, key inputs] or manufacturing equipment used in the manufacture of tobacco products, with particular attention to ensuring that tobacco product production or supply is commensurate with reasonably anticipated demand; and [(g) a description of the location where manufacturing equipment for use in the manufacture of tobacco products will be installed and used.] 3. [Each Party shall obligate all natural and legal persons referred to in paragraph 1 of this Article to conduct further due diligence, including the requirements in paragraph 2 of this Article, in order to verify and update customer information whenever there is a material change in circumstances.] or [Each Party shall require all natural and legal persons referred to in paragraph 1 of this Article, to monitor their commercial transactions in pursuance of activities in Article 5.1, and to notify the competent authority or authorities of any activities or omissions which could reasonably indicate engagement in or intention to engage in illicit trade by any natural or legal persons, including contravention of, or intention to contravene any laws or regulations adopted by a Party in pursuance of its obligations under this Protocol.] 4. Each Party shall obligate all natural and legal persons referred to in paragraph 1 of this Article to report periodically on their compliance with the obligations for customer identification and verification. 5. Each Party shall take all necessary legislative, administrative and other measures to ensure that all natural and legal persons referred to in paragraph 1 of this Article comply with the above provisions while taking account of any unnecessary burden on [small or medium-sized] / [all] businesses and on Parties’ administrations. 6. Each Party shall require that all natural and legal persons referred to in paragraph 1 of this Article terminate business relations, including the supply of [raw material and inputs in the production of tobacco products,] tobacco, tobacco products[, key inputs] [and manufacturing equipment used in the manufacture of tobacco products,] with any customer if a competent authority provides such persons with sufficient evidence that the customer has knowingly engaged in the sale, distribution, storage or shipment of [raw material and inputs in the production of tobacco products,] tobacco, tobacco products[, key inputs] or equipment used in the manufacture of tobacco products in contravention of provisions of this Protocol [or any other activity contrary to the provisions of this Protocol]. Thereafter, such a customer shall be a “blocked customer”. 7. Each Party shall communicate to the Convention Secretariat the identity of the authority that it has designated to maintain the list of blocked customers. The Convention Secretariat shall compile a list of the designated authorities of the Parties and make the list available on a web site. 8. With regard to blocked customers, each Party shall require that:
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(a) suppliers immediately communicate the names of blocked customers to the designated authority, which will maintain a list of blocked customers; (b) this list is made available on demand to all natural and legal persons referred to in paragraph 1 of this Article; (c) once so designated, a customer will remain blocked for a period of five years following termination of a business relationship in accordance with paragraph 6 of this Article; (d) all blocked customers shall be barred from conducting business, directly or indirectly, with the natural and legal persons referred to in paragraph 1 of this Article relating to the manufacture, sale, distribution or storage of tobacco, tobacco products[, key inputs] [or manufacturing equipment used in the manufacture of tobacco products]; (e) if a blocked customer does not engage in illicit sale, distribution, storage or shipment of [raw material and inputs in the production of tobacco products,] tobacco, tobacco products[, key inputs] [or manufacturing equipment used in the manufacture of tobacco products] or any other activity contrary to the provisions of this Protocol during the five-year period, the “blocked” designation shall be lifted and the customer shall again be subject to the provisions for customer identification and verification; and (f) if a currently or previously blocked customer engages in illicit sale, distribution, storage or shipment of [raw material and inputs in the production of tobacco products,] tobacco, tobacco products[, key inputs] [or manufacturing equipment used in the manufacture of tobacco products] or any other activity contrary to the provisions of this Protocol x number of times, the “blocked” designation [shall be made permanent] / [becomes definitive]. 9. Parties shall recognize “blocked” designations assigned to customers by other Parties to the Protocol. 10. Each Party shall require all natural and legal persons referred to in paragraph 1 of this Article to monitor their customers’ purchases to ensure that the quantities of such purchases are commensurate with the [legitimate] demand for such products within the intended market of sale or use.] or [Article 6 Customer identification and verification 1. Each Party, when it is persuaded that any person engaged in the activities referred to in Article 5.1 is not fit to engage in these activities, specifically based on evidence that this person has been involved in the illicit trade in tobacco or products or manufacturing equipment used in the manufacture of tobacco products: (a) if the Party has licensed the person to engage in the activities referred to in Article 5.1, it shall revoke the licence; and (b) take effective measures to require all natural and legal persons referred to in paragraph (a) above, including operations connected with the supply of tobacco, products and manufacturing equipment used in the manufacture of tobacco products with these persons.
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This information will be compiled in a database in which the data can be exchanged internationally to avoid commercial exploitation. 2. Due diligence pursuant to paragraph 1 of this Article shall include requirements for customer identification, such as obtaining information relating to, but not limited to, the following, to the extent reasonably available: (a) establishing that the legal or natural person holds a valid licence in accordance with Article 5, if applicable; (b) when the customer is a natural person, information regarding his or her identity, including but not limited to full name, business registration number (if any), date and place of birth, applicable tax registration numbers and copy of his or her official identification; (c) when the customer is a legal person, information regarding its identity, including but not limited to full name, business registration number, date and place of incorporation, corporate capital, applicable tax registration numbers, copies of articles of incorporation or equivalent documents, its corporate affiliates, names of its officers and directors and the names of any designated representatives, including but not limited to the representatives’ complete names and copies of their official identification; (d) documentation regarding any offences committed or charges filed by government agencies; and (e) obtain information on the purpose of the transaction or transactions, including, where required, on the use and / or market of retail sale of the tobacco products and manufacturing equipment used in the manufacture of tobacco products and the location where the manufacturing equipment for use in the manufacture of tobacco products will be installed, with particular attention to ensuring that tobacco product production or supply is commensurate with reasonably anticipated demand. 3. Each Party shall obligate all natural and legal persons referred to in paragraph 1 of this Article to conduct further due diligence, including the requirements in paragraph 2 of this Article, in order to verify and update customer information whenever there is a material change in circumstances. In such cases, and in compliance with the activities referred to in paragraph 5.1, the competent authority or authorities shall be notified of any act or omission that could reasonably indicate actual or intended involvement in illicit trade by any natural or legal person, including the violation or intended contravention of laws or regulations adopted by a Party. 4. Each Party shall obligate all natural and legal persons referred to in paragraph 1 of this Article to report periodically on their compliance with due diligence requirements. 5. Each Party shall take all necessary legislative, administrative and other measures to ensure that all natural and legal persons referred to in paragraph 1 of this Article comply with the above provisions while taking account of any unnecessary burden on small or medium-sized businesses and on Parties’ administrations. 6. Each Party shall require that all natural and legal persons referred to in paragraph 1 of this Article terminate business relations, including the supply of tobacco, tobacco products and manufacturing equipment used in the manufacture of tobacco products, with any customer if a competent authority provides such persons with sufficient evidence that the customer has
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knowingly engaged in the sale, distribution, storage or shipment of tobacco, tobacco products or equipment used in the manufacture of tobacco products in contravention of provisions of this Protocol or any other activity contrary to the provisions of this Protocol. Thereafter, such a customer shall be a “blocked” customer. Mr OOKA (Japan) said that Japan had not submitted written comments on Article 6 the day before, having understood that as the discussion continued there would be another opportunity to do so. The CHAIR confirmed that, as the Committee had not gone through the Article paragraph by paragraph, there would be a further opportunity to submit comments. The same applied to Article 8. Mr GÖRÜN (Turkey) recalled that in the earlier discussions Turkey had requested that “sufficient evidence” and “blocked customer” be included among the terms that were defined in Article 1. He suggested that those terms should be placed in square brackets until they had been defined. The CHAIR suggested that asterisks should be attached to all terms that were felt by delegations to need definition. Producing the required definitions was the responsibility of the Intergovernmental Negotiating Body itself. (For continuation of the discussion on Article 6, see summary record of the sixth meeting.) • Article 8: Record-keeping (continued from the first meeting) The CHAIR drew attention to a revised draft text reflecting representatives’ proposals on Article 8. He requested delegations to check that their proposals had been correctly incorporated. The document in question read: PART III: SUPPLY CHAIN CONTROL Article 8 Record-keeping 1. Each Party shall require [that all natural and legal persons engaged in the commercial sale of tobacco or in the manufacture, sale, distribution, storage, shipment, import or export of [raw materials and inputs in the production of tobacco products,] tobacco products [or manufacturing equipment used in the manufacture of tobacco products]] / [the tobacco industry to] maintain complete and accurate records of all transactions relevant to the objectives and purposes of this Protocol. 2. Each Party shall require persons licensed in accordance with Article 5 to provide the following information to the competent authorities, on request: (a) and general information on market volumes, trends, forecasts and other relevant information;
(b) the [description and] quantities of [raw materials [and inputs in the production of tobacco products]][,] [and quantities of] [tobacco,] tobacco products [and manufacturing equipment used in the manufacture of tobacco products] in the licencee’s possession, custody or control kept in stock in tax and customs warehouses under the [regime of transit or duty
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suspension] / [transit, suspension or temporary regime] as of the date [of the request] / [set out by the Competent Authority]. 3. With respect to [raw materials and inputs in the production of tobacco products,] [tobacco,] tobacco products [and manufacturing equipment used in the manufacture of tobacco products] sold or manufactured on the territory of the Party for export outside the territory of the Party or subject to duty-suspended movement in transit on the territory of the Party, each Party shall [on request] require that persons licensed or equivalently approved in accordance with this Protocol provide the competent authorities in the country of departure (electronically where the appropriate infrastructure exists) at the time of departure from their control with the following information: [(a) date of manufacture and product expiry date;]
[(b)] date of shipment from the last point of physical control of the products by the person licensed in accordance with this Protocol; (b) (c) (d) (e) (f) (g) details concerning the products shipped (including brand, amount, warehouse); intended shipping destination; identity of the person to whom the products are being shipped; mode of transport, including the identity of the transporter; expected date of arrival of the shipment at the intended shipping destination; and intended market of retail sale or use.
4. When feasible, each Party shall require that tobacco growers and retailers maintain complete and accurate records of all relevant transactions in which they engage. 5. For the purposes of implementing paragraph 1 of this Article, each Party shall adopt effective legislative, executive, administrative or other measures to require that all records are: (a) (b) (c) maintained for a period of no fewer than five years; made available to the competent authority or authorities; and as far as feasible, kept in a common format or as prescribed by the competent authorities.
6. Each Party shall, as appropriate and subject to national laws, establish a system for sharing all records kept in accordance with this Article with other Parties. 7. Parties shall endeavour to cooperate, with each other and with competent international organizations, in progressively sharing and developing improved technologies for record-keeping. Ms KIPTUI (Kenya) repeated Kenya’s request that the words “key inputs” should be added to any reference to tobacco or tobacco products, including in Article 8. The CHAIR said that the omission would be corrected. He invited delegations to submit any further proposals concerning Articles 6 and 8 to the Convention Secretariat in writing.
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(For continuation of the discussion on Article 8, see summary record of the sixth meeting.) • Article 9: Security and preventive measures The CHAIR drew attention to the text of Article 9 in the Annex to document FCTC/COP/INB-IT/3/3 and asked delegations to make comments and suggestions on each paragraph in turn. Paragraph 1 Mr OOKA (Japan) said that illicit trade in tobacco could be combated by regulating the main aspects of the transfer of ownership. Consequently, the terms “distribution, storage, shipment” in paragraph 1 could be deleted. Moreover, manufacturing equipment did not always need to be regulated, and so that term could also be deleted. Dr GHAFFARI (Islamic Republic of Iran) proposed that the words “in accordance with its constitutional process” should be inserted after “Each party shall adopt” in paragraph 1. Mr. AL-ZADJALI (Oman) proposed that it might be useful to provide a definition of the phrase “all reasonably practicable measures”. The CHAIR said that that was a matter that could be left to the Parties. In his view, implementation of an international treaty always entailed some element of interpretation, but delegations certainly had the right to ask that any given element in the protocol should be defined if they thought it necessary. Mr Mc MICHAEL (European Community) proposed that the words “in accordance with national law” should be inserted after “other measures”. Ms MATSAU (South Africa) proposed that the phrase “and tobacco manufacturing equipment” should be inserted after “tobacco products” in the last line of paragraph 1. Professor TIDJANI (Togo) proposed that, since the meaning of “reasonably practicable measures” was open to subjective interpretation, the word “reasonably” should be deleted. Mr NICOLAS (Philippines) observed that paragraph 1 enumerated a number of activities but omitted any reference to other activities mentioned elsewhere in the protocol, such as warehousing, or brokering. He asked whether the intention of paragraph 1 was to limit the applicability of the Article only to the activities listed, or whether it implicitly covered the other activities mentioned in other parts of the protocol. The CHAIR asked the Chairperson of the Intergovernmental Negotiating Body to answer the question raised by the representative of the Philippines. Mr WALTON-GEORGE (European Community), speaking in his capacity as Chairperson of the Intergovernmental Negotiating Body, replied that the text would need to be harmonized to ensure full consistency. Probably the scope of paragraph 1 should be expanded to cover the other activities mentioned elsewhere. Ms KIPTUI (Kenya), while supporting the intent of paragraph 1, proposed that its scope should be expanded by replacing the term “tobacco products” in the last line by “tobacco, tobacco products, key inputs and manufacturing equipment”.
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Professor PRAKIT VATHESATOGKIT (Thailand), speaking on behalf of the Parties in the WHO South-East Asia Region, proposed that the title of Article 9 should be expanded to read: “Security and other preventive measures”. Paragraph 2 Mr OOKA (Japan), supported by Mr AZOFF (Israel), proposed that, since the sanctions referred to in paragraph 2 should primarily be determined by each Party individually, the phrase “where necessary” should be inserted after “Each Party shall”. Ms TUCKER (European Community) proposed that the words “civil and/or administrative” should be changed to “civil or administrative”. Paragraph 3 Ms MADRAZO REYNOSO (Mexico) said that it was not feasible to prohibit the intermingling of tobacco products with non-tobacco products, as the two types of product could be held in the same customs warehouse while awaiting clearance. Mexico would submit a proposal for redrafting the paragraph. Ms MATSAU (South Africa) requested clarification of the meaning of “intermingle”. Mr WALTON-GEORGE (European Community), speaking in his capacity as Chairperson of the Intergovernmental Negotiating Body, replied that the intended meaning was that of putting two or more products together in the same place, container, or vehicle. The intention had been to refer to such intermingling when it related to significant commercial activities; it was not intended to cover, for example, a van which was delivering cigarettes and food to a supermarket. It had been found that in major import and export transactions, cover loads were often put into the container to conceal cigarettes, and only the cover load was declared, which made the job of the customs much more difficult. There was scope for improving that part of the text if delegations had concerns about it. Mr OOKA (Japan), wondered if it was really feasible to stipulate that tobacco products could not travel in the same container as other products. Japan proposed that the paragraph should be deleted. Mrs BEGUM (Bangladesh), speaking on behalf of the Parties in the WHO South-East Asia Region, proposed that the phrase “if intended to conceal or disguise tobacco products” could be added at the end of paragraph 3. Mr OLDHAM (alternate to Mr Leguerrier, Canada) said that Canada endorsed the view of Mexico that the paragraph was overly prescriptive. In Canada’s view, the same criticism applied to paragraphs 5, 6 and 7. Canada would propose new text that would collapse all of those paragraphs into a new paragraph 3 which would be less prescriptive and non-binding. Dr ANIBUEZE (Nigeria) said that it would not be feasible in his country to prohibit the storage of cigarettes in the same warehouse as other products. He proposed that the word “warehousing” should be deleted. The CHAIR said that the paragraph would have to be streamlined to reconcile the different proposals.
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Ms TUCKER (European Community) said that a ban on intermingling, as provided for in paragraph 3, was not feasible. The paragraph should therefore be deleted. Conceptually, however, the idea of a ban on intermingling formed an important part of the protocol, and the European Community therefore proposed that it should be dealt with under “Free-trade areas and duty-free sales” in Article 11. Mr ESCUDERO (Chile) said that the confused wording of paragraph 3 made it impossible to implement. If the ban on intermingling was intended to prevent the non-declaration of tobacco products to customs, he pointed out that not declaring them made them contraband anyway, and so the ban on intermingling was redundant. He suggested that the paragraph should be deleted, or else moved to a different part of the protocol as the European Community had proposed. Mr AL BAKER (United Arab Emirates) suggested that in paragraph 3, “legislative, executive, administrative or other measures” should be replaced by “legislative, executive, administrative and other measures”, in order to ensure that the requisite implementing measures were also adopted. Ms MATSAU (South Africa) said that, while the concept of a ban on intermingling posed problems in respect of the wording used, she urged that the worthy intention that was reflected should be retained. She suggested that the Chair might direct a small group of Parties to redraft the paragraph. The CHAIR agreed that a redrafting exercise would be required, as had also been suggested by the Chairperson of the Intergovernmental Negotiating Body. Ms LIKIBI-BOHO (Congo) agreed that the paragraph should be retained, because of the real problem of tobacco products being smuggled through customs, concealed behind other products. States should be placed under an obligation to ban intermingling. Dr TSETSEGDARI (Mongolia) supported the position of South Africa and Congo, and did not agree with the proposal from the European Community to move the paragraph to Article 11. Mr TAGOE (Ghana) said that, in customs parlance, intermingling had the connotation of concealment. He therefore suggested that the phrase “intermingled with” could be replaced by “concealed in packages containing”. Mr PADILLA (Philippines) asked for clarification of the scope of the provision on intermingling. In developing countries like the Philippines, tobacco products and non-tobacco products were very often carried in the same small vehicle. The CHAIR recalled that the Chairperson of the Intergovernmental Negotiating Body had said that the paragraph was aimed at significant commercial activities, not small-scale transportation. Paragraph 4 Mr TAGOE (Ghana), speaking on behalf of the Parties in the WHO African Region, suggested replacing “Parties should” by “Parties shall” in paragraphs 4 and 5, to make the language mandatory. Referring to paragraph 5, he said that the words “in the same amount as the invoice” should be replaced by “in the amount shown on the invoice”. Dr GHAFFARI (Islamic Republic of Iran) said that it was not clear to which body or bodies reports under paragraph 4 were to be addressed.
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Mr WALTON-GEORGE (European Community), speaking in his capacity as Chairperson of the Intergovernmental Negotiating Body, replied that that had not been specified, because it could be determined by national laws. It would normally be the financial control bodies that were concerned with potential money laundering. A phrase such as “to the competent national authority” could perhaps be inserted after the word “report”. Mr AZOFF (Israel) observed that, in a context of money-laundering, transactions over a certain amount had to be reported by the person bringing the money in, by the person receiving the money or by the bank concerned. Paragraph 4 called for any person who was aware of the transaction to report it, even though it might be legitimate. That wording would therefore need to be refined. Mr WALTON-GEORGE (European Community), speaking in his capacity as Chairperson of the Intergovernmental Negotiating Body, explained that the purpose of the paragraph was to enable the authorities to obtain knowledge of cash payments, and unusual payments by other means, because that was an indicator of possible illicit trade. He agreed that an attempt should be made to refine the wording. Mr ROWAN (European Community) suggested that “US$ 10 000” in the third line should be changed to “€10 000”. Ms MADRAZO REYNOSO (Mexico) suggested the formulation “US$ 10 000 or the equivalent in national currency”. Mr OOKA (Japan), suggested that no specific amount should be mentioned. In the first line of paragraph 4, the word “trade” should be replaced by “sales” for the sake of consistency with other paragraphs. Moreover, the term “manufacturing equipment” should be deleted. Dr NDYANABANGI (Uganda) proposed that the words “and other key inputs” should be inserted after “tobacco products”. The paragraph provided an important safeguard against money laundering. Ms MATSAU (South Africa), supported by Dr ANIBUEZE (Nigeria), suggested that, instead of a specific monetary amount, reference should be made to the currency requirements of the domestic reserve bank. Mr AL-ZADJALI (Oman) said that in general he supported the content of paragraph 4, but wished to point out that the legal or natural persons engaged in the tobacco trade were sometimes merchants who dealt with supermarkets, or dealers in vehicles or real estate, who might well handle cash amounts in excess of US$ 10 000, or the figure that was finally selected. Therefore, the paragraph should be reworded to make it clear that the reporting of transactions related only to tobacco and tobacco products. Dr LEWIS-FULLER (Jamaica) said that she recommended the deletion of the paragraph; even if the Committee could settle on a particular figure, a transaction could be split up into several smaller ones involving amounts below the threshold for reporting. Dr ABOU AL ZAHAB (Syrian Arab Republic) said that US$ 10 000 could be a huge amount for some developing countries, where citizens were obliged by law to declare transfers of amounts as low as US$ 100 or US$ 1000. Thus, after “US$ 10 000”, he proposed inserting the phrase “or a smaller amount in line with the legislation in force”.
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Paragraph 5 Dr PRASAD (India), speaking on behalf of the Parties in the WHO South-East Asia Region, and supported by Dr GHAFFARI (Islamic Republic of Iran), proposed that in paragraph 5, the words “or other legal modes of payment” should be added after “and only by wire or cheque”. Mr BALOCH (Pakistan) said that the requirement that payments should be allowed in “the same amount as the invoice” might lead to undervaluation or misrepresentation in order to avoid payment of taxes. Pakistan therefore proposed that the phrase in question should be replaced by “the consideration in money including all duty and taxes, if any, which the supplier received from the recipient of that supply”. Mrs GALAGAN (adviser to Mr Nebenzia, Russian Federation) observed that the payment restrictions provided for in paragraph 5 could only be enforced in countries with a well developed financial system. In the Russian Federation, for example, a requirement for a cashless settlement might obstruct legal trade in tobacco products, owing to lack of uniformity in the financial infrastructure. The paragraph should therefore authorize all legal means of payment, in line with domestic legislation. Professor TIDJANI (Togo) said that the French translation of paragraph 5 presented difficulties, and he would submit a proposed reformulation in writing. Mr OOKA (Japan) said that the limitations contained in paragraph 5, namely that payments could be made only by wire or cheque and that the financial institution must be located on the territory of the intended market, would make implementation difficult. Consequently, the paragraph should be deleted. The CHAIR pointed out that Japan’s concern would be addressed if the text incorporated the phrase “or other legal modes of payment”, as proposed by India. Mr ROWAN (European Community) proposed that cash payments could be allowed subject to the following additional wording: “cash payments but only where the nature and scale of the customer’s business is such that it is not commercially feasible under local conditions to use any other form of payment”. Mr MALOBOKA (Namibia), observing that the Parties in the WHO African Region favoured a strong protocol, suggested that “shall” or “must” should be used throughout the Article in place of “may” or “should”. The CHAIR said that it was not appropriate for a treaty instrument to use the term “must” when addressing Parties. Mr NICOLAS (Philippines) suggested that a distinction could be drawn between international sales and domestic sales in determining which forms of payment were to be allowed. Paragraph 6 Dr ANIBUEZE (Nigeria) said that he had some concerns about paragraph 6 which appeared to be redundant. Mr WALTON-GEORGE (European Community), speaking in his capacity as Chairperson of the Intergovernmental Negotiating Body, replied that the purpose of the paragraph was to ensure that cigarettes, in particular, were supplied to a country only in quantities that could be consumed in that
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country. In the past there had been instances of cigarettes manufactured in huge quantities and sent to a small country in order to divert them to another country, and thus evade duties and taxes, and bring them on to the illegal market. Mr OOKA (Japan) said that such instances might occur, but it would be difficult to anticipate with any precision the amount of tobacco products that could legitimately be consumed in an intended market. Either the paragraph should be deleted, or the term “shall”, which implied an obligation, should be replaced by “should”. Mr MOUSSA ROBLE (Djibouti) said that Djibouti as a small country faced the problem of disproportionate quantities of imports. He suggested that the paragraph should be retained with the wording clarified. Mr AZOFF (Israel) said that the provision raised practical problems because it dictated business practices to the private market. Warehouses or shippers that were merely storing or shipping could not be expected to know about market trends and matters that had a bearing on “legitimate consumption”. In addition, a manufacturer might decide to ship more cigarettes than the market was currently consuming in order to secure market share. He agreed with the representative of Japan that, “shall” should be replaced by “should”. The words “storage, shipment” should be deleted. Mr AL BAKER (United Arab Emirates), observing that some countries imported products and then re-exported them for trading purposes, asked whether paragraph 6 also referred to re-exports. Mr WALTON-GEORGE (European Community), speaking in his capacity as Chairperson of the Intergovernmental Negotiating Body, confirmed that that was indeed the case. Mr GAO Xingzhi (China) said that paragraph 6 appeared to imply that exporters and exporting countries which supplied tobacco products should make judgements about amounts commensurate with legitimate consumption or use. The paragraph would be difficult to implement, and China proposed its deletion. The CHAIR requested the Chinese delegation to submit its proposal to the Convention Secretariat in writing. Dr ANIBUEZE (Nigeria) said that, although the purpose of the paragraph had been clarified, he still had concerns about how the quantities consumed by a country were to be determined. “Legitimate consumption” would vary from country to country, depending on numerous factors of consumption. Ms MADRAZO REYNOSO (Mexico) asked which authorities would be responsible, and what criteria used, in determining the amounts commensurate with legitimate consumption. Dr PRASAD (India), noting that the question of demand assessment was also dealt with in paragraph 10 of Article 6, said that some kind of mechanism would have to be created to calculate legitimate consumption. He suggested that a small group might be mandated to redraft paragraph 6, in conjunction with paragraph 10 of Article 6, so as to capture the intent of the protocol. The CHAIR said that the proposal by the representative of India might be adopted in the course of further negotiations, but the matter remained under discussion in the Committee for the time being. Ms MATSAU (South Africa) noted with concern the growing support for the idea of deleting paragraph 6. She recalled the information presented at the previous session of the Intergovernmental Negotiating Body on the subject of tracking international smuggling. In that context, the paragraph
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was critical, as the clues to international illicit trade were often revealed from supply and demand patterns that were irregular. She opposed deletion of the paragraph. The CHAIR suggested that perhaps the problem lay in the phrase “legitimate consumption”, because there were no criteria for classifying consumption as legitimate or illegitimate. A redrafting exercise would be required to reconcile the different views. Mr WALTON-GEORGE (European Community), speaking in his capacity as Chairperson of the Intergovernmental Negotiating Body, thanked South Africa for underlining the importance of the paragraph. In response to the question regarding responsibility for determining the amount of legitimate consumption, he said that that would be a task for the competent national authorities, in conjunction with the persons involved in the export trade. The regulatory authorities would need to gather sufficient information in order to make a judgement on the subject. If a seizure of illicit tobacco indicated that a country’s apparent consumption was disproportionately high, the competent authorities in the country could renegotiate what were reasonable amounts. Professor PRAKIT VATHESATOGKIT (Thailand), said that Thailand joined with the representative of South Africa in support of retaining the paragraph which was linked to the provisions of other paragraphs, such as paragraph 2 of Article 8. The establishment of a global clearing house would assist in determining the levels of national cigarette consumption and tracing the supplying companies. Ms MADRAZO REYNOSO (Mexico) said that the importance of the paragraph made it essential to find wording that would make its implementation feasible. She had never intended to suggest that it should be deleted. Ms MATSAU (South Africa) pointed out that the methods proposed to determine legitimate consumption were not dissimilar to the procedures successfully employed to uncover illicit pharmaceutical drug rings. Mr ROWAN (European Community) said that it was the European Community’s understanding that the paragraph did not apply to retailers; on that basis, he supported the whole Article as it stood, considering its importance in the fight against illicit trade. Dr LEWIS-FULLER (Jamaica) recommended that the paragraph be redrafted. Jamaica was willing to join in any redrafting effort. Points of clarification that were needed included the difference between “commercial sale” and “sale”. Establishing levels of legitimate consumption required was related to information submitted to the clearing house in the tracking and tracing system. Suppliers should not have the responsibility of refusing to supply over and above the level of legitimate demand, because they would be acting against their own interests. She questioned who would take the crucial responsibilities of examining clearing house data, identifying abnormal patterns of consumption and then instigating prosecution. Paragraph 7 Ms MATSAU (South Africa) asked whether transit countries could be required to report suspicious transactions. Mr WALTON-GEORGE (European Community), speaking in his capacity as Chairperson of the Intergovernmental Negotiating Body, said that if transport companies, for example, were required to report suspicious transactions, that could cover movements of goods that were simply in transit.
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Mr OOKA (Japan) observed that national business practices varied and that consequently the word “shall” should be replaced by “should”, so as to lessen the obligation placed on commercial enterprises. Dr GHAFFARI (Islamic Republic of Iran) asked whether domestic laws were to be used as a basis to define suspicious transactions, which in turn depended on the definition of ordinary commercial practices. Mr WALTON-GEORGE (European Community), speaking in his capacity as Chairperson of the Intergovernmental Negotiating Body, said that it would not be useful to be precise in that particular area of definition. Rather, what was suspicious would depend on the particular business or type of transaction. The people involved in the trade were in the best position to identify suspicious or abnormal activities, and thus the aim was to set up a system under which they were required to report their suspicions to the competent authorities. Mr TAGOE (Ghana) said that if the authorities of a country had any reason to believe that a shipment in transit was suspicious, and must be examined, then that should be done. Mr ROWAN (European Community) said that the European Community was strongly in favour of paragraph 7 and also supported the position taken by Ghana and South Africa concerning transit. Goods in transit were by definition being exported from one country and imported into another, and thus they would be covered by paragraph 7 which confirmed the “import or export of tobacco products”. Mr MOUSSA ROBLE (Djibouti) suggested that in order to avoid confusion, the issue covered by paragraph 7 should be examined in the context of Article 20 concerning information sharing. The CHAIR observed that the Committee had completed its first consideration of Article 9. (For continuation of the discussion on Article 9, see summary record of the sixth meeting.) • Article 7: Tracking and tracing (resumed) The CHAIR invited representatives to resume their consideration of the revised draft text reflecting delegations’ proposals on Article 7, Tracking and tracing. He recalled that he had proposed the day before that a working group should be established to work on the Article, but that idea had not found favour with the Committee. Since then some delegations had expressed willingness to work in a small group once they had seen the consolidated document containing all the delegations’ proposals, which constituted both food for thought and a basis for negotiations. He proposed once again that a working group should be established. Dr RADA ESCOBAR (Colombia) pointed out that several delegations had not been in favour of establishing a working group, a view shared by Colombia. The CHAIR reiterated the essence of his proposal. Mr GÖRÜN (Turkey) said that the Parties in the WHO European Region supported the establishment of a working group.
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Mr OLDHAM (alternate to Mr Leguerrier, Canada) asked whether the working group would have the benefit of interpretation services and whether its meetings would run concurrently with other meetings. The CHAIR said that there would be interpretation services, and the group’s meetings would not run concurrently with other meetings. Mr MOHAMED (Maldives) said that the Parties in the WHO South-East Asia Region supported the Chair’s proposal. The CHAIR said that he took it that the Committee wished to establish a working group on Article 7. It was so agreed. (For continuation of the discussion on Article 7, see summary record of the ninth meeting.) The CHAIR said that the afternoon would begin with a restricted plenary meeting, followed by the Committee’s next meeting, after which the working group could begin its work. Dr RADA ESCOBAR (Colombia) said that he wished it to be placed on record that his delegation opposed the establishment of a working group. He also asked for clarification of “restricted plenary meeting”. Mr WALTON-GEORGE (European Community), speaking in his capacity as Chairperson of the Intergovernmental Negotiating Body, said that he wished to hold a short restricted meeting of the plenary, to discuss one particular matter of policy with the Parties. At the request of the CHAIR, Mr SOLOMON (WHO Secretariat, Office of the Legal Counsel) explained that the meeting would be open to attendance by the Parties and limited Secretariat staff only; it would not open be to the public or to observers under Rules 29, 30 and 31 of the Rules of Procedure.
The meeting rose at 13:15
FOURTH MEETING Wednesday, 1 July 2009, at 17:45 Chair: Mr S. SHAKERIAN (Islamic Republic of Iran)
DRAFTING AND NEGOTIATION OF A PROTOCOL ON ILLICIT TRADE IN TOBACCO PRODUCTS: Item 5 of the Agenda (Documents FCTC/COP/INB-IT/3/3, FCTC/COP/INBIT/3/INF.DOC./1, FCTC/COP/INB-IT/3/INF.DOC./2, FCTC/COP/INB-IT/3/INF.DOC./4, FCTC/COP/INBIT/3/INF.DOC./6 and FCTC/COP/INB-IT/3/INF.DOC./7) (continued) Part III: Supply chain control (continued) • Article 10: Sale by Internet, telecommunications or any other evolving technology The CHAIR, after drawing attention to the text in the Annex to document FCTC/COP/INB-IT/3/3, said that the present meeting had been joined by an expert from the World Trade Institute, Professor Thomas Cottier, whose specialization was sales made via the Internet. Any questions about Article 10, on the sale by Internet of tobacco and tobacco products, should consequently be put to Professor Cottier. A new paper was being prepared, containing all the Parties’ submissions on Article 5, and would be distributed shortly. In regard to concerns expressed about the rate of progress, the Committee had already produced four papers containing proposals on articles of the protocol, which represented a major step forward. Mr TORRES MARTIN (Colombia) said that he wished to hear the expert’s views on the traceability of an Internet purchase. When purchases of tobacco products were made on the Internet, there were no means to reveal the identity or physical location of either buyer or seller, nor whether the seller was licensed to sell tobacco products. In his view, if Internet sales of tobacco products could not be traced, they should be banned. Professor COTTIER (World Trade Institute), speaking at the invitation of the CHAIR, said that he was speaking not as a technical but as a legal expert. From a technical perspective, tracing the buyer and the seller was a general question, not specific to tobacco, and best examined through the practices in Internet sales taking place every moment of every day. From a legal perspective, several provisions in the protocol were closely related to the law of the World Trade Organization, and those two regimes should be made mutually supportive and compatible. A ban on Internet tobacco sales amounted to a quantitative restriction. It might also amount to de facto discrimination that favoured domestic retailers selling over the counter against those who imported. The primary justification for such a ban would be protection of public health, particularly in deterring young people from beginning to or continuing to smoke; it might also be argued that it would play a role in preventing counterfeiting. However, should that ban be general, and cover not only retail but also wholesale business, it would be extremely difficult to justify under the law of the World Trade Organization. Of the two versions presented for Article 10, what should be clarified in the first option was how the Article related to the ban on Internet advertising contained in the Framework Convention itself. In the second option, the discussion should focus on whether such a ban should be general or be confined to retail sales. Legitimate wholesale business would operate under a licence under the
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protocol and there were ways to control its operations other than through a far-reaching ban. He took the view that a ban confined to retail sales could be justified under WTO law. Ms ROA RODRÍGUEZ (Panama) said that her country favoured a total ban on Internet sales of tobacco products since, in addition to facilitating tax avoidance, the Internet was used to promote and advertise such products, whereas Panama had a total ban on tobacco advertising, promotion and sponsorship. Dr ANIBUEZE (Nigeria) observed that there would be arguments in favour of a total ban on Internet tobacco sales; he sought clarification of the expert’s view that such a complete ban would present difficulties. Professor COTTIER (World Trade Institute), speaking at the invitation of the CHAIR, replied first in regard to the linkage between the ban on sales and the ban on advertising: from a legal perspective those were two different things and should be discussed separately. Most advertising took place with respect to the end user and it played a lesser role in the wholesale business. There might conceivably be a complete ban on advertising as there was already on television advertising, but wholesale commercial transactions could be allowed. In regard to a total ban on Internet sales, that might lead some Parties not to sign or ratify the protocol for fear that domestic measures taken on that basis would be challenged before a WTO panel and that in turn might give rise to economic sanctions. Those tensions should be avoided from the outset: the aim was to create a regime that was mutually supportive and consistent. Dr VINIT (Papua New Guinea) said that, given his country’s very high prevalence of under-age smoking, he was in favour of a total ban on Internet sales, in line with his country’s total ban on tobacco advertising. Mr NAMGYEL (Bhutan), speaking of the Parties in the WHO South-East Asia Region, expressed support for the second option for Article 10, namely a total ban. Dr AL-LAWATI (Oman), said that his country supported the second option, namely a total ban on Internet sales. He requested a clear position from the expert in regard to a ban on Internet sales. Professor COTTIER (World Trade Institute), speaking at the invitation of the CHAIR, expressed his view that a ban on Internet sales that covered both retail and wholesale would not be compatible with WTO law, whereas a retail ban could be justified under WTO law. Mr AZOFF (Israel) asked what practical measures might be taken to enforce such a ban. Mr ROWAN (European Community) asked for the expert’s views on the banning of Internet sales of manufacturing equipment. Professor COTTIER (World Trade Institute), speaking at the invitation of the CHAIR, said that in regard to implementing a ban the licensing mechanism should be further considered. As part of the licensing of sellers, the authorities could set out conditions under which the Internet could be used for conducting business; and compliance with those conditions could be monitored. In reply to the European Community, he said that if the ban were confined to retail sales, the inclusion of commercial manufacturing equipment and machine tools would make little sense. The wording of the Article was extremely broad; the reference to “any other evolving technology-based modes of sale” could be interpreted as to cover the placing of orders through an Internet-based telephone system such as Skype. That needed detailed examination.
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Mr OOKA (Japan) suggested that according to the principle of proportionality, it would be unreasonable to prohibit the use of technology-based modes of sale only for tobacco-related products. Instead, the protocol would be more effective if Internet-based and other modes of sale were properly regulated in the same way as non-Internet sales. Japan therefore supported the first option for Article 10. Dr HERMAN (Cook Islands) said that her country favoured extending the prohibition beyond retail sales, to include the provision of any service that facilitated payment for any retail sales, as well as the transport or delivery of tobacco or tobacco products that were the subject of retail sales. A proposed text had been submitted to the Convention Secretariat. Ms KIPTUI (Kenya) said that Kenya supported the second option for the Article but proposed the insertion of the words “key inputs” before “or manufacturing equipment”. The concern was that older manufacturing equipment would be sold to African countries as the technology evolved; by not permitting those sales on the Internet, tracking and tracing would be improved. Dr KOSTENKO (adviser to Mr Nebenzia, Russian Federation) said that the Russian Federation supported the second option for Article 10, but believed that the prohibition should extend only to retail sales, and that electronic commerce between businesses in this area should be allowed. Mr YOMO (Congo) said that the Protocol allowed traditional imports or exports of tobacco and tobacco products by legitimate licence holders. Therefore, Internet sales by such authorized companies or individuals should be allowed but properly regulated, for example, by maintaining customs officials on the manufacturing premises. Mr GAO Xingzhi (China), observing that the expert’s view appeared to be that a ban on retail sales alone would not be in breach of WTO rules, said that China supported the first option given for Article 10. Retail sales over the Internet should be banned, in particular to protect the health of minors. Professor COTTIER (World Trade Institute), speaking at the invitation of the CHAIR, emphasized that further consideration should be given to licensing procedures in order to create discipline and support monitoring of wholesale Internet-based sales while adopting a ban on retail sales. The CHAIR said that, owing to a shortage of time, representatives who had been unable to speak on Article 10 could do so later. He asked them to submit their proposals on Article 10 and, if possible on Article 11, in writing to the Convention Secretariat. (For continuation of the discussion on Article 10, see summary record of the seventh meeting.)
The meeting rose at 18:20.
FIFTH MEETING Thursday, 2 July 2009, at 10:30 Chair: Mr S. SHAKERIAN (Islamic Republic of Iran)
DRAFTING AND NEGOTIATION OF A PROTOCOL ON ILLICIT TRADE IN TOBACCO PRODUCTS: Item 5 of the Agenda (Documents FCTC/COP/INB-IT/3/3, FCTC/COP/INBIT/3/INF.DOC./1, FCTC/COP/INB-IT/3/INF.DOC./2, FCTC/COP/INB-IT/3/INF.DOC./5, FCTC/COP/INBIT/3/INF.DOC./6 and FCTC/COP/INB-IT/3/INF.DOC./8) (continued) Part III: Supply chain control (continued) • Article 5: Licence or equivalent approval system (continued from the third meeting) The CHAIR recalled that, at its third meeting, the Committee had discussed a revised draft text of Article 5 reflecting the proposals made by the representatives at its first and second meetings. He drew attention to a new version of the text, which had been updated in the light of comments made at the third meeting, and which was displayed on a projection screen. Mr TORRES MARTIN (Colombia) said that there was no Spanish version of the new text; Colombia would therefore abstain from participation, as the version displayed was not official. The CHAIR explained that it was established practice that work should proceed on the basis of a paper in English displayed on a screen, with support from interpretation. The paper was intended to help delegations negotiate; it was not an official six-language document. Mr OLDHAM (alternate to Mr Leguerrier, Canada), supported by Mr FISCH BERREDO MENEZES (Brazil) and Dr VINIT (Papua New Guinea), said that it would be much easier for nonEnglish-speaking colleagues to work with the revised text considered at the third meeting. The CHAIR, reiterating his previous comments on established practice, said that it would take too long to translate the paper into all six languages. Mr TORRES MARTIN (Colombia) said that there had been time to translate it on the previous day. Interpretation would not be sufficient: delegations needed to see a written translation. Mr TAGOE (Ghana), speaking on behalf of the Parties in the WHO African Region and supported by Mr HAYAKAWA (Japan), expressed firm support for work to proceed on the present basis. Turning to the text itself, he proposed that the phrase “national competent authorities” should be corrected to read “competent national authority”. Ms HEFFORD (Australia) said that, in regard to working with an English text, the discussions would be complex and difficult and she fully understood the concerns of some colleagues. Dr AL-LAWATI (Oman), said that the Parties in the WHO Eastern Mediterranean Region, in common with Japan and the Parties in the WHO African Region, supported the Chair’s proposed working method. He did not have the text in Arabic but, since the beginning of the negotiations on the - 50 -
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WHO Framework Convention, on-screen negotiations had been conducted in English; additionally, the few changes between the original text, which had already been translated and the new version, were clearly shown in bold. The CHAIR proposed that work should proceed in English; the new text would be translated for the afternoon meeting. It was essential to speed up the work so that the protocol could be completed. Mr GAO Xingzhi (China), emphasizing the protocol’s global importance, said that it was essential that a large number of Parties participate in the negotiations. Thus China supported Colombia’s position and suggested that discussion on Article 5 be postponed until the afternoon. Meanwhile the Committee could discuss other matters. Paragraph 1 Mr FISCH BERREDO MENEZES (Brazil) suggested that, with reference to the new text, the phrases “any of the following”, “any legal or natural person”, and “to conduct such activities” in paragraph 1 should be placed in square brackets. Mr NICOLAS (Philippines) said that the proposal made by the Philippines to use the term “control and regulate” rather than “prohibit” in paragraph 1, in line with Article 15.7 of the Framework Convention, was not reflected in the new paper. The term “prohibit” was inappropriate because, in the case of non-tobacco products, the activities listed in paragraph 1 were not illegal and therefore would be difficult to prohibit. The CHAIR said that Article 15.7 of the WHO Framework Convention called on Parties to adopt and implement “further measures”, which he interpreted to mean that the protocol should go further than the Framework Convention. Using the term “prohibit” would not necessarily render nontobacco related activities illegal. Mr OOKA (Japan) said that regulation of the main points of transfer of ownership of tobacco products could assist the eradication of illicit trade. The situation would vary between countries, depending on whether or not all of the activities referred to in subparagraphs 1(a) to (e) were present; the manufacture of tobacco products might be carried out in one country, but not brokering, for instance. He suggested that the protocol could deal flexibly with those varying situations by the addition of “where necessary” after “Each Party shall”. The CHAIR said that the word “shall” indicated that there was an obligation to comply, whereas “where necessary” left the matter to the Parties’ discretion; it would therefore be difficult to combine the two. Mr OLDHAM (alternate to Mr Leguerrier, Canada) proposed that paragraph 1 should be modified by putting “equivalent approval” in square brackets and adding “/ [similar controls]”. The CHAIR said that if paragraph 1 was amended as Canada had proposed, then a similar change would have to be made to the title of the Article. The term licence was clear and objective, but the meaning of the phrase “similar controls” could vary and the protocol should use language that could be easily understood in all countries. Mr BERTRAND (Canada), explaining the difference between a licence and “similar controls”, gave the example of possession of manufacturing equipment which in Canada was not subject to a licence but was subject to a legislative framework.
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Dr AL-LAWATI (Oman) wondered whether “possession of manufacturing equipment” extended to the firms which manufactured the machinery. The CHAIR said that he distinguished between the manufacturer of equipment for the purposes of sale, and the eventual buyer who would become the possessor. Professor NUNTAVARN VICHIT-VADAKAN (Thailand), speaking on behalf of the Parties in the WHO South-East Asia Region, requested the insertion of “or designated” between “national” and “competent authorities” because in some countries the competent authorities were at a level other than the national, central level. Alternatively, as the word “national” appeared in paragraph 3, it could be deleted altogether. She concurred with the Chair’s comments in regard to Japan’s proposal to add the phrase “where necessary”. Dr TSETSEGDARI (Mongolia), recalling that during the work on the original text she had suggested the insertion of “retailing” after “wholesaling” in subparagraphs 1(c) and 1(d), observed that the suggestion was not reflected in the current draft. The CHAIR stated that the notion had been retained in subsequent paragraphs. Mr OOKA (Japan) said that if the phrase “where necessary” was not appropriate in the introductory part of paragraph 1, it could be inserted instead at the beginning of subparagraphs 1(b), (c), (d) and (e). Responding to a suggestion from the CHAIR, he said that he could agree to maintain the reference in square brackets solely in the introductory part of paragraph 1 for the time being as it was still under consideration. Ms MATSAU (South Africa) emphasized that the phrase “where necessary” was incompatible with the word “shall” and its insertion would open a loophole for debate or legal action; she saw no reason to introduce further uncertainty into the text. Mr TORRES MARTIN (Colombia) said that because it had already been agreed that the licensing requirements were not going to apply to artisanal production of tobacco products, where paragraph 1 referred to “activities by the tobacco industry” a phrase such as “except small-scale artisanal activities of tobacco-making” should be added. The CHAIR suggested that, as the issue of small-scale artisanal activities also applied to Articles 6, 7, 8 and 9, interested delegations could work on a proposal for inclusion in the preamble or the general obligations. Dr ANIBUEZE (Nigeria), supported by Mr TAGOE (Ghana), speaking on behalf of the Parties in the WHO African Region, and by Mr DAGANEE (Libyan Arab Jamahiriya), said that if the intention was to remove small-scale producers from the licensing regime, that would be problematical, particularly for Africa. Illegal, small-scale production factories existed in Nigeria and should not be exempted from having to obtain a licence. The CHAIR recalled that Mexico had indicated that if the issue was not resolved, it might not be able to accept the protocol. Dr ANIBUEZE (Nigeria) replied that if small-scale producers were to be exempted from the licensing regime then his Government would not be able to accept the protocol either. The CHAIR suggested that the representatives of Colombia, Mexico and Nigeria should work on the wording, together with another delegation opposed to the exemption.
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Dr AL-LAWATI (Oman) suggested that the issue was not the size of the facility, but whether it was carrying out any of the activities listed in subparagraphs 1(a) to (e). He supported the remark by Nigeria, as companies carrying out those activities, on any scale, should be licensed. The CHAIR requested that the representative of Oman should join the negotiations with the other three delegations. Mr TORRES MARTIN (Colombia) said that he had not meant to refer to small-scale production factories. Recalling that tobacco had originated in the Americas, he explained that certain communities, notably of indigenous peoples, in his country and others in the Region had grown tobacco for generations for their own consumption; it was a cultural tradition, like the use of the coca leaf in some countries. He agreed with the representative of Nigeria that small-scale commercial production facilities should be licensed. Professor PRAKIT VATHESATOGKIT (Thailand) suggested that a reference to small-scale producers who were not subject to licensing could be included with a reference to small-scale farmers in paragraph 2. Dr SAN MARTÍN (Paraguay), supporting the standpoint of Colombia, said that he would define artisanal production as that in which machinery was not used. Therefore, the protocol could make a distinction between companies that used machinery, which should be licensed, and tobacco producers using manual methods, which should not. Turning to the proposal by Japan, he felt that the insertion of the words “where necessary” would significantly weaken the Article. Dr ANIBUEZE (Nigeria) said that in the light of the clarification given, Nigeria could accept an exemption for artisanal production of tobacco products. The CHAIR suggested that Colombia should propose suitable wording in due course. Mr TAGOE (Ghana), speaking on behalf of the Parties in the WHO African Region, said that the addition of “where necessary” in subparagraph 1 would create considerable ambiguity, leading to chaos in the interpretation of the protocol. Dr VINIT (Papua New Guinea), supported by Dr ALEPENDAVA (Solomon Islands), also objected to the phrase “where necessary”. A licence made the difference between licit and illicit production, and consequently the legitimate tobacco industry must be required to obtain a licence and the provision must be mandatory for all Parties. Dr TSETSEGDARI (Mongolia) said that she was in favour of retaining the original text of paragraph 1 and deleting “where necessary”. Mr ROWAN (European Community) emphasized the need to retain the word “shall” so as not to dilute the text. He proposed that the word “national” should be deleted as it was covered by “Each party”. He suggested that all of subparagraph 1(c), with the exception of the words “commercial import or export of tobacco products”, should be placed in square brackets. Dr LEWIS-FULLER (Jamaica) suggested that the word “retailing” be removed from subparagraph 1(c); in the Caribbean it had proved difficult to license the thousands of itinerant vendors for any of their products, including cigarettes. Ms ROA RODRÍGUEZ (Panama) said that she wished to delete the words “where necessary”. Turning to paragraph 1, she preferred the words “prohibit the conduct” of activities “except pursuant
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to a licence” rather than “control or regulate”. Panama could accept the inclusion of the phrase “the tobacco industry”, but suggested that the concept of “legal or natural person” should also be retained, to cover all types of entity that might require to be licensed. The terms “national” and “designated” should be eliminated from the paragraph, because “competent authority” better reflected the situation of all of the Parties. The exception for artisanal production should be placed in a separate paragraph. Dr NDYANABANGI (Uganda), speaking on behalf of the Parties in the WHO African Region, said that she was also in favour of the removal of “where necessary” because it was not compatible with “shall”. The phrase “Each party shall grant, through the competent authority, a licence to …” was a concern; she preferred the earlier version of the text where the term “prohibit” made it very clear that all of the activities listed in the Article were considered illicit unless a licence was obtained. She considered that the term “national” was superfluous, and that “competent authority” should be retained. Ms ZEMEÑO TEMORES (Mexico) suggested that paragraph 1 could be rephrased “Each Party shall grant, through the competent authority, a licence to legal or natural persons to carry out the following activities”. She would submit the proposal in writing. Mr NICOLAS (Philippines) suggested that paragraph 1 could be reworded to read “Each Party shall control or regulate the conduct of any of the following activities by any legal or natural person through the system of requiring a licence or equivalent approval to conduct such activities granted by a competent authority”. Mrs BEGUM (Bangladesh), speaking on behalf of the Parties in the WHO South-East Asia Region, requested that the definitions in Article 1 should cover the terms “competent authority”, “brokering”, “primary processing”, “warehousing” and “manufacturing equipment”. The CHAIR said that the request would be conveyed to the Chairperson of the Intergovernmental Negotiating Body for discussion in plenary. Mr OLDHAM (alternate to Mr Leguerrier, Canada) proposed that subparagraph 1(b) should read: “possession of equipment whose sole use is the manufacture of tobacco products;” He emphasized the wider notion of possession because to refer only to the manufacture of equipment would narrow the field of application; secondly, the term “sole use” would ensure that only equipment that was particular to tobacco production, and not dual use, was covered. Ms MATSAU (South Africa), referring to subparagraph 1(b), said that South Africa had encountered the problem of large-scale illicit manufacture of tobacco products and therefore rather than deleting “manufacturing the manufacturing” as Canada had proposed, she would prefer the phrase to read “manufacturing and possession”. Responding to the concerns of Jamaica in respect of the word “retailing” in subparagraph (c), she said that it was her understanding that the phrase did not refer to small, itinerant sellers but to commercial retailers. She wished to learn why the European Community had requested the deletion of the references to wholesaling and retailing in the subparagraph. Mr TAGOE (Ghana), supporting the position of South Africa on very small-scale retailers, pointed out that paragraph 2 stated inter alia that retailing should be licensed “to the extent considered appropriate”. In other words, it was for each Party to decide whether retailing required licensing or regulatory measures on its own territory. Mr FISCH BERREDO MENEZES (Brazil) said that since paragraph 1 covered licensing for the tobacco industry and since, according to Article 1(e) of the WHO Framework Convention, the tobacco industry comprised tobacco manufacturers, wholesale distributors and importers of tobacco products,
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Brazil considered that the reference to “manufacturing of tobacco products” in subparagraph 1(a) was redundant and that subparagraphs 1(a), (c), (d) and (e) should be placed in square brackets. Mr NAGATOMO (Japan), in explanation of his suggestion to insert “where necessary”, said that Japan’s licensing system had worked very well for several decades and there was almost no illicit tobacco trade in Japan. The Japanese system concentrated on the transfer of ownership of tobacco and tobacco products; thus it required a licence for manufacturing, wholesaling, importing and retailing, but not for manufacturing the manufacturing equipment, brokering, warehousing, distribution or transport. Japan would find it difficult to introduce further regulation for activities that were currently unlicensed. He proposed to withdraw Japan’s suggestion of the words “where necessary” and to delete subparagraph 1(b); alternatively, he requested the insertion of “as appropriate” at the beginning of subparagraph 1(b) and the deletion of “brokering, warehousing or distribution” from subparagraph 1(c) and of “transporting” from subparagraph 1(d). If that was not acceptable, “as appropriate” or “where necessary” could be inserted before those words that he had listed for deletion. Ms HEFFORD (Australia) observed that there seemed to be a division between Parties that wished for complete licensing of every form of tobacco production and those seeking less restrictive arrangements to apply to small growers or artisanal manufacturers. Two options could manage that division: to insert “where appropriate” or “consistent with national circumstances” in the introductory part of paragraph 1, which would allow countries to put in place their own licensing arrangements; or to remove the licensing requirement, or to state “each Party shall put in place some form of regulation” and modify the rest of the text accordingly. Ms MATSAU (South Africa) noted that there had been a proposal to insert “manufacturing and possession” in subparagraph 1(b) and that Japan had offered to withdraw the words “where necessary” in the event that subparagraphs 1(b) and 1(c) were adjusted. With reference to subparagraph 1(c), Japan had indicated some unwillingness to modify its licensing system because it was satisfied with its present arrangements; that was not a sufficiently valid reason as each Party could advance a similar argument in order to retain its own system. The CHAIR said that if the Parties were unable to work with greater speed, it might be necessary to establish working groups that would meet in parallel with the Committee and without interpretation. Mr NAGATOMO (Japan) requested the removal of “where necessary” from paragraph 1. Mr ROWAN (European Community) requested that subparagraph 1(e) should be put in square brackets. Responding to an explanation from the CHAIR that it had been suggested that “primary processing of tobacco” should be included among the definitions in Article 1, he withdrew the request. Ms MATSAU (South Africa) requested that “where appropriate” should be deleted from subparagraphs 1(c) and (d). Mr NAGATOMO (Japan) said that it would be difficult for Japan to accept those deletions. The CHAIR recalled that Japan had accepted the deletion of “where necessary” from the introductory part of paragraph 1 on the condition that “where appropriate” be included in those two subparagraphs. The phrases “where appropriate” would thus remain in brackets. Ms ROA RODRÍGUEZ (Panama) said that “retail” should be deleted from subparagraph 1(c), because it was covered in paragraph 2.
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The CHAIR said that “retail” should be kept in square brackets and further explained that it would be retained subject to objection. He asked for comments on paragraph 2. Paragraph 2 Mr DE CAMPOS RIBEIRO (Brazil) requested that “or natural person” in paragraph 2 should be put in square brackets. As each Party had presented its proposals during the previous two days, he hoped that the work would move ahead and that another new text would not be produced. The CHAIR said that after all the proposals had been gathered, the text could be streamlined and some of the square brackets would disappear. He would consult with delegations and seek consensus, but at some point the Chair would have no option but to make his own proposals for a streamlined text. That was the normal practice in international negotiations. Mr BALOCH (Pakistan) requested that “manufacturing” be added to the activities to be licensed under paragraph 2 after “commercial growing”. Mr NAMGYEL (Bhutan), speaking on behalf of the Parties in the WHO South-East Asia Region, proposed replacing the word “or” with “and” between the various paragraph options in paragraph 2. Dr TSETSEGDARI (Mongolia) proposed that in subparagraph 3(a) “policy and strategy” should be inserted between “national tobacco control” and “programme”. Mr OLDHAM (alternate to Mr Leguerrier, Canada), responding to the explanation from the Chair, said that allowing the Chair to streamline the text was not the normal way of international negotiation and it was not appropriate for the Chair to be the mediator of the text. It was for the Parties to eliminate the square brackets in the meeting in order to arrive at a basic text and that was not a process which could be delegated. The CHAIR said that he would conduct the meeting in accordance with the proposal by Canada, giving the floor to each delegation in turn and allowing Parties’ submissions to be discussed in the Committee in full. He would inform the Chairperson of the Intergovernmental Negotiating Body of the new working method as it would inevitably increase the number of future sessions of the Intergovernmental Negotiating Body that would need to be held. Mr KABWEBWE TSHILOMBO (Democratic Republic of the Congo), said that since the text was displayed only in English, the French-speaking Parties in the WHO African Region were unable to follow the debate at the same speed as their English-speaking colleagues; consequently, they were beginning to leave the room. Mr FISCH BERREDO MENEZES (Brazil) said that in subparagraph 3(a), the word “legislation” should be added after “its national” and “tobacco control programme” should be placed in square brackets. Mr LIYANAARACHCHI (Sri Lanka) said that the Parties in the WHO South-East Asia Region wished to retain subparagraphs 3(b)(v), (vi) and (vii). Dr SHEIN (Myanmar), also speaking on behalf of the Parties in the WHO South-East Asia Region, suggested that since subparagraph 3(b) referred to the application process, the word “licensee” should be replaced with “applicant”.
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Dr PRASAD (India), also speaking on behalf of the Parties in the WHO South-East Asia Region, and supported by Turkey, proposed that the term “national tobacco control programme” should be deleted from subparagraph 3(a); many Parties did not have national tobacco control programmes and its inclusion would therefore provide an excuse for the opponents of tobacco control to oppose the establishment of a designated or competent licensing authority. Dr ANIBUEZE (Nigeria) asked whether the Committee’s work was proceeding on the basis of the proposal by Canada. The CHAIR explained that his intended method of work had been to receive all proposals on the text, paragraph by paragraph and to develop a streamlined text based on negotiations and consultations. However, Canada had expressed the view that the role of the Chair was only to give the floor to delegations. He would follow the request by Canada to negotiate every point in full Committee, gather proposals until the end of the session and then the responsibility for achieving consensus would remain with delegations. Dr ANIBUEZE (Nigeria) said that participants did not want deliberations on the protocol to last too long. Some delegations were aware of the Chair’s experience and considered that his original method had been appropriate and that it had worked well in the past. He urged the Chair to continue to guide the negotiations. The CHAIR thanked Nigeria for his understanding of the role of the Chair which had included the conducting of informal negotiations outside the meeting where necessary; he considered that to attempt to resolve every proposal in full committee was not the best method to conduct such a sensitive negotiation. He suggested that the discussion move on to paragraph 3. Paragraph 3 Mr NAMGYEL (Bhutan), speaking on behalf of the Parties in the WHO South-East Asia Region, proposed the retention in subparagraph 3(g) of “tobacco products and manufacturing equipment used in the manufacture of tobacco products”. The CHAIR said that some delegations wished to keep that text in brackets. Mr ROWAN (European Community) said that paragraph 3 was so large that it might be advisable to proceed one subparagraph at a time. The CHAIR concurred, asking for submissions on subparagraph 3(a). Dr AL-LAWATI (Oman) wondered why the word “programme” was used in subparagraph 3(a) when the activities described were carried out by the competent authorities; a programme was not a legal entity. The CHAIR explained that the word “programme” had been proposed because of a concern that Parties should retain the liberty, in line with their national tobacco control programmes, to reject an application for a licence by an applicant that they considered undesirable, even if that applicant had fulfilled the licencing requirements. If that wording did not capture the intended idea, it could be revised. Professor PRAKIT VATHESATOGKIT (Thailand), in the light of the Chair’s explanation, suggested the addition of “in accordance with its national tobacco control policy”.
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Mr AZOFF (Israel) suggested that in the introductory part of paragraph 3 “or control” should be added between “licensing” and “system” and in the first line of subparagraph 3(a) “control and regulate” should be inserted after “competent authority to”. Mr BALOCH (Pakistan), referring to subparagraph 3(b)(iii) proposed that “and installed” should be inserted between “production” and “capacity”. Mr OOKA (Japan) recalled that Japan’s original proposal had been to insert “in accordance with its national laws and regulations” in the introductory part of paragraph 3, but that proposal had been reversed and the draft said “each party shall …” Consequently, Japan wished for some adjustments to subparagraph 3(b), since some of the items stipulated in the subparagraph were not required in Japan’s licensing system. Japan wished to delete “tax registration numbers and business registration number” from subparagraph 3(b)(i) and “place of incorporation, business registration number, applicable tax registration numbers, its corporate affiliates, names of its officers and directors” from subparagraph 3(b)(ii). Japan also requested the deletion of “production capacity of the business” from subparagraph 3(b)(iii) and the deletion of subparagraphs 3(b)(v), (vii) and (viii). In addition, Japan requested the deletion of “renewal” from subparagraph 3(e), and the insertion of “as appropriate” in subparagraph 3(f). Japan also wished subparagraph 3(g) to be deleted. Ms TUCKER (European Community) requested that in subparagraph 3(b) “relevant required” should be put into brackets, in subparagraph 3(b)(ii) “as well as” should be placed between brackets, as should “and identity”, and for grammatical purposes “and” should be added after “directors”. The first part of subparagraph 3(b)(iv) should be put in brackets so that the subparagraph would begin with “product description”. In subparagraph 3(b)(vi), “directly related to tobacco trade” should be inserted before “committed” and the second half of the subparagraph should be bracketed from “committed” onwards. Finally, in subparagraph 3(b)(viii), “legitimate” should be added after “anticipated”. Mr FITZGERALD (alternate to Ms Hefford, Australia) said that in subparagraph 3(b), after “applicant”, “that may include” should be added. Mr OOI Poh Keong (Malaysia) asked whether the phrase “designate or establish a competent authority” in subparagraph 3(a) meant that each Party would have to designate one single authority to handle all the licences, observing that Malaysia would have some problems because different activities were governed by different competent authorities. He suggested deleting “a” and replacing “authority” with “authorities”. The CHAIR suggested that since in many countries there was only one competent authority, “a” could be bracketed and “/ies” be added in brackets. Mr TAGOE (Ghana) suggested that in subparagraphs 3(b)(i) and (ii), “when the applicant” should be changed to “where the applicant”. Mr FISCH BERREDO MENEZES (Brazil) suggested that subparagraph 3(b)(i) be put in brackets and subparagraph 3(b)(viii) be bracketed from “with particular attention” to the end. Ms MADOUGOU (Benin) said that subparagraph 3(g) contributed to the effective tracing of tobacco products and manufacturing equipment and therefore she was opposed to its deletion. (For continuation of the discussion on Article 5, see summary record of the eighth meeting.)
The meeting rose at 13:00.
SIXTH MEETING Thursday, 2 July 2009, at 15:25 Chair: Mr S. SHAKERIAN (Islamic Republic of Iran) later: Dr M.E. ANIBUEZE (Nigeria)
DRAFTING AND NEGOTIATION OF A PROTOCOL ON ILLICIT TRADE IN TOBACCO PRODUCTS: Item 5 of the Agenda (Documents FCTC/COP/INB-IT/3/3, FCTC/COP/INBIT/3/INF.DOC./1, FCTC/COP/INB-IT/3/INF.DOC./2, FCTC/COP/INB-IT/3/INF.DOC./5, FCTC/COP/INBIT/3/INF.DOC./6 and FCTC/COP/INB-IT/3/INF.DOC./8) (continued) Part III: Supply chain control (continued) Dr PRASAD (India), speaking on behalf of the Parties in the WHO South-East Asia Region, expressed concern at the slow progress, particularly since fewer than three days remained to complete the negotiation. The working group on tracking and tracing should be disbanded and the few remaining issues dealt with in Committee A; if necessary, the Committee should extend its working hours in order to complete its work. • Article 6: Customer identification and verification (continued from the third meeting) The CHAIR invited consideration of the revised draft text on Article 6, which read: PART III – SUPPLY CHAIN CONTROL Article 6 Customer identification and verification [1. Each Party [shall] / [should] (a) [obligate] / [encourage] all natural and legal persons engaged in: (i) selling commercial quantities* of tobacco or the manufacture, [sale,] distribution, storage, shipment, import or export of tobacco products, [excluding] the final retailer and persons importing tobacco products for their personal consumption, and/or (ii) the manufacture, sale, distribution, storage, shipment, import or export of equipment used in the manufacture of tobacco products, to conduct due diligence with respect to any natural or legal person (“first purchaser”) with which they engage in a commercial transaction; and (b) [require] / [encourage] that any first purchaser who sells, distributes or ships tobacco, tobacco products, or equipment used in the manufacture of tobacco products to further natural or legal persons shall [also] require such persons to conduct due diligence on the persons (other
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than final consumers) to which they subsequently sell, distribute or ship [raw materials or inputs in the production of tobacco]tobacco, tobacco products, [key inputs] or equipment used in the manufacture of tobacco products.] 2. [Due diligence pursuant to paragraph 1 of this Article [shall] / [should] include requirements for customer identification, such as obtaining information relating to, but not limited to, the following, to the extent reasonably available:] [(a) establishing that the legal or natural person holds a valid licence in accordance with Article 5, if applicable;] [(b) when the customer is a natural person, information regarding his or her identity, including but not limited to full name, business registration number (if any), date and place of birth, applicable tax registration numbers and copy of his or her official identification; (c) when the customer is a legal person, information regarding its identity, including but not limited to full name, business registration number, date and place of incorporation, corporate capital, applicable tax registration numbers, copies of articles of incorporation or equivalent documents, its corporate affiliates, names of its officers and directors and the names of any designated representatives, including but not limited to the representatives’ complete names and copies of their official identification; (d) documentation regarding any offences committed or charges filed by government agencies; (e) complete identification of the bank accounts intended to be used in the relevant transactions and other relevant payment details; (f) a description of the intended use and intended market of retail sale of the tobacco products or manufacturing equipment used in the manufacture of tobacco products, with particular attention to ensuring that tobacco product production or supply is commensurate with reasonably anticipated demand; and (g) a description of the location where manufacturing equipment for use in the manufacture of tobacco products will be installed and used.] 3. Each Party [shall] / [should] obligate all natural and legal persons referred to in paragraph 1 of this Article to conduct further due diligence, including the requirements in paragraph 2 of this Article, in order to verify and update customer information whenever there is a material change in circumstances. 4. Each Party [shall] / [should] obligate all natural and legal persons referred to in paragraph 1 of this Article to report periodically on their compliance with the obligations for customer identification and verification. [5. Each Party shall take all necessary legislative, administrative and other measures to ensure that all natural and legal persons referred to in paragraph 1 of this Article comply with the above provisions while taking account of any unnecessary burden* on small or medium-sized businesses* and on Parties’ administrations.] [6. Each Party [shall] / [should] require that all natural and legal persons referred to in paragraph 1 of this Article terminate business relations, including the supply of [raw materials or inputs in the production of tobacco]tobacco, tobacco products [key inputs] and manufacturing equipment used in
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the manufacture of tobacco products, with any customer if a competent authority provides such persons with sufficient evidence that the customer has knowingly engaged in the sale, distribution, storage or shipment of tobacco, tobacco products or equipment used in the manufacture of tobacco products in contravention of provisions of this Protocol or any other activity contrary to the provisions of this Protocol. [Thereafter] / [After the conclusion of at least primary adjudication proceedings], such a customer shall be a “blocked customer”.] [7. Each Party [shall] / [may] communicate to the Convention Secretariat the identity of the authority that it has designated to maintain the list of blocked customers. The Convention Secretariat shall compile a list of the designated authorities of the Parties and make the list available on a web site.] [8. With regard to blocked customers, each Party [shall] / [should] require that: (a) suppliers immediately communicate the names of blocked customers to the designated authority, which will maintain a list of blocked customers; (b) this list is made available on demand to all natural and legal persons referred to in paragraph 1 of this Article; (c) once so designated, a customer will remain blocked for a period of five years following termination of a business relationship in accordance with paragraph 6 of this Article; (d) all blocked customers shall be barred from conducting business, directly or indirectly, with the natural and legal persons referred to in paragraph 1 of this Article relating to the manufacture, sale, distribution or storage of tobacco, tobacco products or manufacturing equipment used in the manufacture of tobacco products; (e) if a blocked customer does not engage in illicit sale, distribution, storage or shipment of [raw materials or inputs in the production of tobacco] tobacco, tobacco products [key inputs] or manufacturing equipment used in the manufacture of tobacco products or any other activity contrary to the provisions of this Protocol during the five-year period, the “blocked” designation shall be lifted and the customer shall again be subject to the provisions for customer identification and verification; and (f) if a currently or previously blocked customer engages in illicit sale, distribution, storage or shipment of [raw materials or inputs in the production of tobacco]tobacco, tobacco products [key inputs] or manufacturing equipment used in the manufacture of tobacco products or any other activity contrary to the provisions of this Protocol X number of times, the “blocked” designation shall be made permanent.] [9. Parties [shall] / [should] recognize “blocked” designations assigned to customers by other Parties to the Protocol.] 10. Each Party [shall] / [should] require all natural and legal persons referred to in paragraph 1 of this Article to monitor their customers’ purchases to ensure that the quantities of such purchases are commensurate with the demand for such products within the intended market of sale or use.] The CHAIR proposed the deletion of the square brackets around the Article. Mr DE CAMPOS RIBEIRO (Brazil) said that his country had proposed deletion of the entire Article since it referred to obligations incumbent on the national authority that should not be delegated to or imposed on individuals. It could also lead to violation of national provisions, including those
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concerning banking secrecy. However, Brazil would accept the deletion of the brackets around Article 6 for the time being and review its position following the discussion. The CHAIR asked whether the Committee could agree to deletion of the word “should” at the beginning of the Article and of “encourage” in paragraph 1(a). Mr BERTRAND (Canada), supported by Mr GAO Xingzhi (China), said that Canada would prefer the word “obligate” to be deleted and the word “encourage” retained. Dr LEWIS-FULLER (Jamaica) questioned the feasibility of encouraging or obligating all natural and legal persons engaged in the activities outlined to conduct the due diligence themselves. She wished to ascertain how that subject had been covered in the provisions on licences before deciding on wording, since some due diligence would have been performed by the competent authority prior to licensing. Lastly, she noted that “encourage” was weaker than “obligate” and should not be chosen. Dr AL-LAWATI (Oman), supported by Professor PRAKIT VATHESATOGKIT (Thailand), said that he would prefer to retain the word “obligate” and delete “encourage”. In reply to a question from Dr AL-LAWATI (Oman) regarding the method of work, the CHAIR said that he aimed to “clean up” the text, in the sense of finding consensus on bracketed items. However, where alternative wording had been suggested and there was a clear divergence of views, he would retain both options for the time being. Mr ROWAN (European Community), emphasizing the importance of due diligence, expressed strong support for retaining the words “shall” and “obligate”. Mr FITZGERALD (alternate to Ms Hefford, Australia) said that Australia did not support the requirement for businesses to maintain such detailed data on their customers; the obligations outlined should be the responsibility of government agencies under the provisions on licences. He would therefore prefer the word “encourage” to be retained. Mr FISCH BERREDO MENEZES (Brazil) suggested that the text should be amended to read: “Each Party shall conduct due diligence with respect to all natural and legal persons”. Mr GAO Xingzhi (China) expressed support for that suggestion; it was for the competent authority, not enterprises or companies, to conduct due diligence. Some due diligence was being undertaken in the licensing process. Mr ROWAN (European Community) said that he could appreciate the suggestion by Brazil. However, he questioned how due diligence would be performed on companies with post office box addresses in tax havens, which, he stressed, exemplified where frauds were taking place. He emphasized the obligations of corporate responsibility: in the European Community, agreements had been reached that clearly obligated tobacco companies to conduct due diligence. Speaking in reply to a question from the CHAIR and specifically referring to the proposal by Brazil, he said that he could not concur. The CHAIR drew attention to the legislative difficulties that Parties could encounter in obliging individuals to undertake specific tasks. Dr LEWIS-FULLER (Jamaica) expressed support in principle for the proposal by Brazil. The behaviour of tobacco companies in developed countries, through agreements, might be quite different
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in less developed countries. Therefore, governments should take the responsibility for performing due diligence and deal with those who sought to corrupt the system. Mr TORRES MARTIN (Colombia) questioned the need for Article 6; a variety of activities such as the manufacturing of tobacco products, equipment, commercial import or export, or wholesaling, brokering and warehousing were already addressed under Article 5, “Licence or equivalent approval system”. Ms MADRAZO REYNOSO (Mexico), supported by Dr ABASCAL (Uruguay), agreed that due diligence should be the exclusive domain of the State. She therefore suggested that the words “all natural and legal persons” in subparagraph 1(a) should be replaced with “the tobacco industry”, which, in accordance with the definition in the Framework Convention, would mean tobacco manufacturers, wholesale distributors and importers of tobacco products. Mr BERTRAND (Canada) said that his country too had reached specific agreements for due diligence with large tobacco manufacturers. However, to enact all the necessary legislation to obligate a range of individuals to conduct due diligence would be very difficult. Dr ANIBUEZE (Nigeria), recalling the definition of due diligence in Article 1 of the draft protocol, said that governments would be overburdened in performing due diligence and instead should use their oversight function to monitor the due diligence conducted by the industry. Ms HEFFORD (Australia) expressed support for the deletion of Article 6; the concerns of some Parties regarding due diligence might be addressed by linking that requirement to the licensing provisions in Article 5. Dr AL-LAWATI (Oman) said that he did not favour deleting Article 6 since no agreement had yet been reached on Article 5. He expressed support for the wording proposed by Brazil. The CHAIR, noting that the suggestions made would be taken up once again when the Committee had completed its consideration of the Article, invited comments on subparagraph 1(a)(i). In the absence of any objection, he would take it that the Committee could agree to delete the word “sale”. It was so agreed. Mr ROWAN (European Community) requested that the word “tobacco” in the first line be placed in square brackets. The CHAIR, in response to a suggestion by Mr ROWAN (European Community), proposed that the brackets around “excluding” in the second line be removed. It was so agreed. Mr TORRES MARTIN (Colombia) suggested that the words “raw materials and inputs” should be inserted after “import or export of tobacco products”. Mr ROWAN (European Community), referring to subparagraph 1(b), requested that the word “tobacco” be placed in square brackets where it occurred before “tobacco products”. The CHAIR suggested that the word “also” should be deleted.
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It was so agreed. Ms KIPTUI (Kenya) said that the Parties in the WHO African Region wished to retain the phrase “key inputs”, which should also be reintroduced throughout the protocol. The CHAIR, following a show of hands, took it that the Committee could agree to remove the square brackets around the introductory part of paragraph 2, while retaining those around “shall/should”. Mr OOKA (Japan) supported that suggestion. It was so agreed. Ms HEFFORD (Australia) said that, for the sake of clarity, the phrase “but not limited to” should be deleted from the introductory part of paragraph 2. Subparagraphs 2 (b), (c), (d) and (e) should also be deleted. Dr GHAFFARI (Islamic Republic of Iran) supported the deletion of the phrase “but not limited to”. Dr AL-LAWATI (Oman) said that he would prefer the phrase “but not limited to” to be retained; the other deletions proposed by Australia already limited the scope of the Article. The CHAIR suggested that the phrase “but not limited to” should be placed in square brackets. He also took it that the Committee could agree to remove the square brackets around subparagraph 2(a). It was so agreed. The CHAIR recalled that a suggestion had been made to delete subparagraphs 2(b) and (c). Mr GAO Xingzhi (China) observed that paragraphs 2(b) and (c) of Article 6 were the same as subparagraphs 3(b)(i) and (ii) of Article 5. Having questioned the need for such repetition, he suggested that Articles 5 and 6 should be considered together. Should Article 6 be retained, China would support the deletion of subparagraphs 2(b)–(g). Mr ROWAN (European Community) said that he could not support the deletion of wording in one part of the text on an understanding that it was to be included in another part of the text yet to be agreed. The CHAIR said that although the paragraphs in the two articles looked similar, subparagraphs 3(b)(i) and (ii) of Article 5 referred to information required by the competent authority for the issuing of licences, while subparagraphs 2(b) and (c) of Article 6 related to obligations for customers. He invited interested delegations to consult informally to find mutually acceptable wording. Mr ROWAN (European Community) suggested that the words “directly related to the tobacco trade” should be inserted after “offences” in subparagraph 2(d). The remainder of that subparagraph should be placed in brackets. The CHAIR said that it might be more appropriate to word subparagraph 2(d) so as to provide for confirmation that the applicant had not committed any related crimes, rather than documenting any offences committed.
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Mr GELVEZ (Bolivarian Republic of Venezuela), recalling the comments of the representative of China, said that several basic requirements would have been met for a licence to be granted. Accordingly, the information requested in subparagraphs 2(b) and (c) would already have been provided. The CHAIR noted that the Committee was not in a position to remove the square brackets around subparagraph 2(e). Ms MADRAZO REYNOSO (Mexico) said that if due diligence was to be performed by individuals, Mexico would have to join those in support of the deletion of subparagraphs 2(d), (e), (f) and (g). If due diligence was to be conducted by the State, however, Mexico would take a different view. The lack of clarity made it difficult for Parties to express their positions. The CHAIR said that he recognized that Parties might wish to review their positions on the Article once a decision had been taken on what person or body was responsible for conducting due diligence. Mr ROWAN (European Community) requested that the word “legitimate” be added after “anticipated” at the end of subparagraph 2(f). The CHAIR noted that the Committee was not in a position to remove the square brackets around subparagraph 2(g). The words “shall/should” would remain bracketed in paragraph 3 pending a decision on the formulation to be used. Mr FITZGERALD (alternate to Ms Hefford, Australia) requested that paragraph 3 be placed in square brackets with a view to its deletion. Dr VINIT (Papua New Guinea) questioned whose interests were being protected. Low- and middle-income countries such as his own were particularly vulnerable to illicit trade from developed countries. He called on all countries to work together in order to ensure the legitimacy of trade in tobacco and curb illicit trade. Dr PRASAD (India) said that paragraph 4 would be very difficult to implement and should be deleted. The CHAIR, in response to a question from Mr BERTRAND (Canada), said that paragraph 4 referred to the natural and legal persons in subparagraph 1(a), not the first purchaser in subparagraph 1(b). Mr FISCH BERREDO MENEZES (Brazil), referring to paragraph 5, said that it could be difficult for Parties to ensure that all the natural and legal persons referred to in paragraph 1 complied with the provisions concerning due diligence. For that reason, Brazil had suggested that it should be governments that conducted due diligence. Mr ROWAN (European Community) said that a major obstacle was the lack of communication with the tobacco industry. The European Community had proposed that the Conference of the Parties set up a compliance body through the Convention Secretariat to ensure that the tobacco industry conducted due diligence and was held accountable for tracking and tracing. Dr LEWIS-FULLER (Jamaica) observed that communication did take place with the tobacco industry for the purposes of taxation, control and regulation. The industry was excluded from the development of public health policies on tobacco control.
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Mr ROWAN (European Community) said that the words “while taking account of” in paragraph 5 should be replaced with “avoiding”, and the words “in particular” inserted after “unnecessary burden”. Mr GAO Xingzhi (China) said that he would not support removal of the square brackets around paragraph 5. Mr ROWAN (European Community) said that in paragraph 6 the word “tobacco” should be placed in square brackets where it occurred before “tobacco products”. The last sentence of the paragraph should be amended to read: “Thereafter, to the extent permitted by law and upon a decision by the competent authorities, such a customer shall be a “blocked customer”. Ms MATSAU (South Africa) said that much of the progress still needed on Articles 5, 6 and 7, and crucially in regard to licensing, tracking and tracing, and due diligence, all hinged on questions concerning information about customers. The point raised by the European Community had been highly relevant. She emphasized that in order to make further progress, to unlock further brackets, the Committee should focus on who was to be responsible for conducting due diligence. The CHAIR agreed fully that the issue to resolve was that of due diligence. He recalled the diverging views on whether due diligence should be the responsibility of governments, or of the individual; the additional question arose of whether or not it should be mandatory. Earlier discussions had not reconciled the positions and he would invite interested Parties to consult informally with a view to finding a solution. Mr GÖRÜN (Turkey), referring to the amendment to paragraph 6 proposed by the European Community, suggested that the word “national” should be inserted before “law”. It might be preferable to incorporate the paragraph, which defined “blocked customers”, in Article 1 on use of terms. The CHAIR replied that it would be better not to add to the section on definitions. Dr LEWIS-FULLER (Jamaica) endorsed the comments of South Africa. Should the government be responsible for deciding on the competent authority, there would probably be no difficulty; in some countries, the government might well delegate the function of due diligence to the tobacco industry, and in others to another body such as a licensing authority. Dr AL-LAWATI (Oman) welcomed the Chair’s suggestion that interested Parties should consult informally to resolve the issue of due diligence, and suggested that they might also want to consider other difficult issues. The CHAIR said that the group should focus on the entity to be responsible for conducting due diligence, and invited representatives of Australia, Brazil, China, the European Community, India, Jamaica, Mexico, Oman and South Africa to hold informal consultations and report back to the Committee at a subsequent meeting. Dr LEWIS-FULLER (Jamaica) and Mr GAO Xingzhi (China) said that they would be prepared to participate in the informal group. Mr ROWAN (European Community), said that he too would be willing to join the informal group. Noting the diverging views, and the complexities and scope of the due diligence issue, he reiterated his proposal that the Conference of the Parties should establish a compliance body through the Convention Secretariat.
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Dr ANIBUEZE (Nigeria) said that there was little point in establishing an informal group if positions were unlikely to shift; he was in favour of open negotiation by the Committee. Mr WALTON-GEORGE (European Community), speaking in his capacity as Chairperson of the Intergovernmental Negotiating Body and responding to a request from Mr DAGANEE (Libyan Arab Jamahiriya) for clarification, said that there was a logical progression between paragraphs 5 and 6. Under paragraph 5, Parties were required to take all the necessary measures to ensure that due diligence was carried out. If, under paragraph 6, there was enough evidence from the due diligence to show that the person concerned had been involved in illicit activities, the supply of products to that person would be blocked. Ms MATSAU (South Africa) said that, while some Parties wanted due diligence to be conducted by the tobacco industry, low-income Parties like South Africa, lacking the means to verify its proper implementation, considered that due diligence should be performed by governments. One possible solution would be to leave it to each Party to decide who was to be responsible for due diligence. Mr WALTON-GEORGE (European Community), speaking in his capacity as Chairperson of the Intergovernmental Negotiating Body, agreed that it was essential to ensure and verify that due diligence had taken place. The South African suggestion had merit and might be considered by the informal group. The CHAIR suggested that further consideration of Article 6 should be suspended pending the discussions of the informal group, to be coordinated by the European Community. It was so agreed. (For continuation of the discussion on Article 6, see summary record of the seventh meeting.) • Article 8: Record-keeping (continued from the third meeting) The CHAIR invited comments on the revised draft text of Article 8 on record-keeping, which read: PART III: SUPPLY CHAIN CONTROL Article 8 Record-keeping 1. [Each Party [shall] / [should] require [that] [the tobacco industry] [all natural and legal persons engaged in the commercial sale of tobacco or in the manufacture, sale, [distribution, storage, shipment,] import or export of tobacco products [or manufacturing equipment used in the manufacture of tobacco products]] [to] maintain complete and accurate records of all transactions relevant to the objectives and purposes of this Protocol [in accordance with its national laws and regulations].] or [Each party shall require that all natural and legal persons engaged in the activities referred to in Article 5.1:
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(a) maintain complete and accurate records of all transactions relevant to the objectives and purposes of this protocol (b) provide general information on the market, where one exists, production volumes, imports, exports and/or sales, trends, forecasts, and other relevant information (c) the quantities of all tobacco, tobacco products, and manufacturing equipment used in the manufacture of tobacco products in the licencee’s possession, custody or control kept in stock in tax and customs warehouses under the regime of transit or duty suspension as of the date of the request.] [2. Each Party [shall] / [should] require persons licensed in accordance with Article 5 to provide the following information to the competent authorities, on request: (a) and general information on market volumes, trends, forecasts and other relevant information;
(b) the quantities of [raw materials [and inputs in the production of tobacco,]] [tobacco,] tobacco products, [key inputs] [and manufacturing equipment used in the manufacture of tobacco products] in the licencee’s possession, custody or control kept in stock in tax and customs warehouses under the regime of transit or duty suspension as of the date of the request.] 3. With respect to [raw materials and inputs in the production of tobacco,] tobacco, tobacco products[, key inputs] [and manufacturing equipment used in the manufacture of tobacco products] sold or manufactured on the territory of the Party for export outside the territory of the Party or subject to duty-suspended movement in transit on the territory of the Party, each Party [shall] / [should] [in accordance with its national laws and regulations] require that persons licensed or equivalently approved in accordance with this Protocol provide the competent authorities in the country of departure (electronically where the appropriate infrastructure exists) at the time of departure from their control with the following information [upon request]: (a) date of shipment from the last point of physical control of the products by the person licensed in accordance with this Protocol; (b) (c) (d) (e) (f) (g) details concerning the products shipped (including brand, amount, warehouse); intended shipping destination; identity of the person to whom the products are being shipped; mode of transport, including the identity of the transporter; expected date of arrival of the shipment at the intended shipping destination; and intended market of retail sale or use.
[4. [When feasible, each Party shall require that tobacco growers and retailers maintain complete and accurate records of all relevant transactions in which they engage [in accordance with its national laws and regulations].] or
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[Each Party shall endeavour, where feasible, to apply the requirements of this Article to all natural and legal persons engaged in the activities referred to in Article 5.2.] [5. For the purposes of implementing paragraph 1 of this Article, each Party shall adopt effective legislative, executive, administrative or other measures to require that all records are: (a) (b) (c) maintained for a period of no fewer than five years; made available to the competent authority or authorities; and as far as feasible, kept in a common format or as prescribed by the competent authorities.
6. Each Party shall, as appropriate and subject to national laws, establish a system for sharing all records kept in accordance with this Article with other Parties. 7. Parties shall endeavour to cooperate, with each other and with competent international organizations, in progressively sharing and developing improved [technologies] / [methods] for record-keeping.] Paragraph 1 Mr NAGATOMO (Japan) said that he would prefer the word “should” in paragraph 1 to be retained. Mr DE CAMPOS RIBEIRO (Brazil) said that responsibility for the activities outlined in paragraph 1 fell to the tobacco industry. Accordingly, the phrase beginning with “all natural and legal persons” in the first line and ending with “ of tobacco products” in the fourth line should be deleted. Mr TORRES MARTIN (Colombia) suggested the addition of “raw materials and inputs for tobacco product manufacture” before “maintain”. Mr GELVEZ (Bolivarian Republic of Venezuela) said that deletion of the phrase beginning with “all natural and legal persons” would limit the scope of the Article since not all tobacco products were produced by the tobacco industry alone. It would be more appropriate to delete the reference to “the tobacco industry”, since the industry itself was considered to be a natural or legal person. Mr OLDHAM (alternate to Mr Leguerrier, Canada) said that the activities outlined in paragraph 1 of Article 8 were linked to those mentioned under Article 5.1 He suggested that paragraph 1 of Article 8 might therefore be amended to read: “persons engaged in the activities referred to in Article 5.1”. Ms GRANZIERA (WHO Secretariat, Office of the Legal Counsel) said that it was her understanding that the tobacco industry included legal persons rather than natural persons engaged in the commercial sale of tobacco. However, it was for the Parties to determine which terms to retain. The meeting was suspended at 18:00 and resumed at 19:00. The CHAIR invited the Committee to continue its consideration of paragraph 1 of Article 8, and took it that the Committee could agree to use the version in the original Chairperson’s text as the basis for its work. It was so agreed.
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In response to a question from Mr ESCUDERO (Chile), the CHAIR said that the quorum that had existed before the meeting had been suspended remained valid. He further clarified that whatever might be agreed in committee was still open to final agreement in plenary. The CHAIR said that, in the absence of any objection, he would take it that the Committee could agree to remove the square brackets around the phrase “in accordance with its national laws and regulations”. Mr TAGOE (Ghana) said that he had some concerns about the phrase “national laws and regulations”, and suggested its deletion. Mr LEBEPE (South Africa) added that the phrase was redundant since it was understood that each State Party would be governed by national laws and regulations. The CHAIR said that the phrase was neutral, added clarity and acted as a safeguard for Parties. However, in some cases, national rules and regulations were superseded by an international instrument. In response to a comment from Ms ROA RODRÍGUEZ (Panama) on the similarities between the proposed new subparagraphs 1(b) and (c) and paragraph 2 of the Chairperson’s text, the CHAIR recalled that the Committee was focusing on the original version of paragraph 1. The manner of record-keeping was under discussion; the responsibility for record-keeping would be taken up in the light of the discussions on paragraph 1 of Article 5. Paragraph 2 Ms HEFFORD (Australia), supported by Mr TORRES MARTIN (Colombia) and Mr GAO Xingzhi (China), said that subparagraph 2(a) should be deleted. The language was too broad in scope and assumed forecasting obligations for licensed operators that were too general. The CHAIR noting that one delegation was in favour of retaining subparagraph 2(a), suggested that it should be placed in square brackets. It was so agreed. Paragraph 3 Mr DE CAMPOS RIBEIRO (Brazil), referring to subparagraph 2(b), emphasized the importance that Brazil attached to the suppression of any reference to tobacco as a raw material and manufacturing equipment; the protocol must focus on the control of tobacco products. Mr TORRES MARTIN (Colombia) stressed that reference should be made to raw materials and inputs in the production of tobacco, as well as to manufacturing equipment used in the manufacture of tobacco products. The CHAIR, responding to a request from Mr OLDHAM (alternate to Mr Leguerrier, Canada) proposed that the external square brackets around paragraph 2 and subparagraphs 2(a) and (b) be removed while retaining the existing square brackets around the controversial elements. It was so agreed. Ms BARILLAS MORALES (Guatemala), supported by Mr SAMUDA (Panama), proposed the addition of “or temporary regime” after “duty suspension” in subparagraph 2(b). He said that the
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phrase “in accordance with its national laws and regulations” had been included in paragraph 1 and could therefore be deleted from paragraph 3. Mr OLDHAM (alternate to Mr Leguerrier, Canada) said that he would prefer the phrase to be retained in paragraph 3. The CHAIR proposed that the square brackets around “in accordance with its national laws and regulations” should be removed. It was so agreed. Mr DE CAMPOS RIBEIRO (Brazil) reiterating his country’s stated position, requested that the word “tobacco” in paragraph 3 be placed in square brackets after “raw materials and inputs in the production of tobacco”. The CHAIR proposed the removal of the square brackets around the words “upon request” at the end of paragraph 3. It was so agreed. The CHAIR, responding to a proposal from Mr TAGOE (Ghana) that subparagraph 3(c) should be amended to read: “intended shipping routes and destinations”, took it that the Committee could agree to that proposal. It was so agreed. Mr ESCUDERO (Chile) said that the words “or the enterprise” should be inserted after “identity of the person” in subparagraph 3(d). Mr TORRES MARTIN (Colombia) said that in the interests of consistency, the beginning of subparagraph 3(d) should be amended to read: “identity of the natural or legal person[s]”. The CHAIR took it that the Committee could agree to the amendment by Colombia, and to removal of the brackets around “natural or legal”. It was so agreed. The CHAIR, responding to a request from Mr GAO Xingzhi (China), proposed that subparagraph 3(g) be placed in square brackets. In addition he proposed that the square brackets around paragraph 4 be removed. It was so agreed. Paragraph 4 Mr OLDHAM (alternate to Mr Leguerrier, Canada) suggested that, in the interests of consistency, the words “relevant transactions” should be replaced with the language used in paragraph 1, namely “all transactions relevant to the objectives and purposes of this Protocol”. The CHAIR questioned the need for that amendment since it was clear from the text that the same transactions were meant.
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Mr TORRES MARTIN (Colombia) suggested that the words, “except for traditional growers working on a non-commercial basis” should be inserted after “tobacco growers” in paragraph 4, to ensure consistency with other international instruments. The CHAIR said that, in the absence of any objection, he would take it that the Committee could agree to delete the alternative version of paragraph 4 and remove the square brackets around “in accordance with its national laws and regulations” at the end of the Chairperson’s version. It was so agreed. Ms HEFFORD (Australia) suggested that efforts might be made to establish a definition of “traditional growers working on a non-commercial basis”. The CHAIR suggested that a footnote should be added after the wording suggested by Colombia. Paragraph 5 Mr GÖRÜN (Turkey) said that in paragraph 5 “When feasible” should be replaced with “If feasible” to provide for a greater degree of conditionality. Mr TAGOE (Ghana) said that the wording “Where feasible” might be preferable. Furthermore, traditional growers should be understood to mean subsistence growers, namely those who grew for personal consumption only. The CHAIR said that he would prefer to avoid lengthy discussion and trusted that the representative of Ghana would be prepared to accept “If feasible”. In addition, and in the absence of any objection, he would take it that the Committee could agree to remove the brackets around the introductory part of paragraph 5. It was so agreed. The CHAIR, responding to a request from Mr TAGOE (Ghana) that in subparagraph 5(a), the words “no fewer”, preceding “than five years”, should be replaced with “not less”, took it that the Committee could agree to that proposal. Responding to a request from Mr ROWAN (European Community), he confirmed that the proposed subparagraph 5(a) would include the words “not less” and “five years” in square brackets. It was so agreed. Mr GAO Xingzhi (China) endorsed that proposal and asked why a period of five years had been set. Mr TORRES MARTIN (Colombia) said that, under most business and accounting legislation, enterprises or legal persons were required to maintain their records for not less than five years. The CHAIR proposed that the square brackets around subparagraphs 5(b) and 5(c) should be removed. In subparagraph 5(b) “competent authority or authorities” should be replaced with “competent authority/ies”. The same formulation should be used in subparagraph 5(c). It was so agreed.
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The CHAIR, responding to a request from Mr FISCH BERREDO MENEZES (Brazil) that, for ease of understanding, the beginning of subparagraph 5(c) should be amended to read: “kept in a common format, as far as possible, or”, took it that the Committee could agree to that amendment and in addition to remove the square brackets around paragraph 6. He drew attention to the strong qualifying language in that paragraph. It was so agreed. Paragraph 6 The CHAIR, responding to a request from Mr RAMAKRISHNAN (India) that the words “details contained in” should be inserted after “sharing” in paragraph 6, took it that the Committee could agree to that proposal. It was so agreed. Paragraph 7 The CHAIR took it that the Committee could agree to remove the square brackets around paragraph 7, on the understanding that the internal brackets would remain. Ms HEFFORD (Australia) suggested that the end of paragraph 7 should be amended to read: “improved systems for record-keeping”. The CHAIR said that “systems” might be too broad in scope and suggested that the wording “improved technologies and methods” might be preferable. Dr Anibueze took the Chair. • Article 9: Security and preventive measures (continued from the third meeting) The CHAIR invited the Committee to consider the revised draft text of Article 9, which read: PART III – SUPPLY CHAIN CONTROL Article 9 Security and [other] preventive measures 1. Each Party shall adopt[, in accordance with its constitutional process] and implement [effective legislative, executive, administrative or] other measures [in force in the country] [in accordance with national law] to require that [all natural and legal persons engaged in [[commercial sales] of tobacco or [in the manufacture, sale, [distribution, storage, shipment,] import or export of tobacco products or] [manufacturing equipment used in the manufacture of tobacco products]] / [the tobacco industry] [the activities referred to in Articles 5.1 and 5.2]] take all [reasonably] [practicable] measures to prevent the diversion of [raw materials and inputs in the production of tobacco,] / [basic inputs, raw materials, and] [tobacco,] tobacco products[, key inputs,] [and manufacturing equipment used in the manufacture of tobacco products] / [and tobacco manufacturing equipment] into illicit trade channels. 2. Each Party [shall] / [should] [where [appropriate] / [necessary]] ensure that any contravention of the measures adopted pursuant to paragraph 1 of this Article is subject to appropriate criminal, civil
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[and/]or administrative procedures and effective, proportionate and dissuasive sanctions, including, as appropriate, suspension or cancellation of a licence [and prohibition of the licencee from re-applying for a licence during a five-year period] / [. The competent authorities of each Party shall undertake strict audit to the licencee who re-applies for a license after such suspension or cancellation]. [3. [Each Party shall adopt and implement effective legislative, executive, administrative or other measures [to] / [shall] require that tobacco products are not intermingled with non-tobacco products during the progression through the supply chain of tobacco products, including during storage, warehousing, transit, transport, import and export[, if intended to conceal or disguise tobacco products].]] or [Each Party may adopt and implement effective legislative, executive, administrative or other measures to expand the depth of its minimum obligations pursuant to this Article and to further enhance its security and preventive measures scheme. Additional measures may include: (a) requiring suspension or cancellation of a license and prohibition of the licencee from re-applying for a license during a five year period for contravention of the measures adopted pursuant to paragraph 1 of this Article; (b) requiring that tobacco products are not intermingled with non-tobacco products during the progression through the supply chain of tobacco products, including during storage, warehousing, transit, transport, import and export; (c) Establishing specific requirements relative to acceptable forms of payment and the reporting of cross-border transfers of substantial quantities of cash; (d) Requiring that all natural and legal persons engaged in commercial sale of leaf tobacco or in the manufacture, sale, distribution, storage, shipment, import or export of tobacco products or manufacturing equipment used in the manufacture of tobacco products shall supply such products only in amounts commensurate with legitimate consumption or use in the intended market of use or retail sale; (e) Requiring that persons involved in the trade in tobacco products be liable for reporting “suspicious activities” relative to the tobacco trade to its competent authorities.] [4. Parties should require that [natural or legal persons engaged in [trade] / [sales] in [raw materials or inputs in the production of tobacco,] tobacco, tobacco products[, key inputs,] [or manufacturing equipment used in the manufacture of tobacco products]] / [the tobacco industry] report [to competent national authority] [the cross-border transfer of] substantial quantities of cash [in the amount [of at least [USD] / [EUR] 10 000] / [as stipulated in the currency requirements of the domestic Reserve Bank,] [or less than that in accordance with local regulations and laws] or any amount as agreed to in mutual legal assistance treaties] or appropriate negotiable instruments.] [[5. [Parties [should] / [shall] require [that] payments for transactions relating to the manufacture, sale, distribution, storage, shipment, import or export of tobacco products and manufacturing equipment used in the manufacture of tobacco products [to] be allowed only [in the [national] currency and in the [same amount [as] / [shown on] the invoice for those products] / [consideration in money including all duty and taxes, if any, which the supplier received from the recipient for that supply][, and] only by [bank] wire [transfer] or [a] cheque [, or other legal modes of payment] from [the] financial institutions located on the territory of the intended market of retail sale of the tobacco products and shall not be operated through any other [alternative remittance] /
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[financial transaction] system]] / [using a form of legal tender and generally accepted payment methods] / [through a legitimate mode of payment employed in the territory of the intended market of retail sale of the tobacco products]. [Cash payments, could be considered but only where the nature and scale of the customer’s business is such that it is not commercially feasible under local conditions to use any other form of payment.]]] or [Each party shall require that payments for transactions pursuant to the activities referred to in Article 5.1 be allowed only in the same currency and the same amount as the invoice for the transaction, and only by bank cheque or wire from the financial entity situated on the territory where the business of one of the Parties to the operation is located, and shall not be operated through any other alternative remittance system.] [6. [Each Party [shall] / [should] require that all natural and legal persons engaged in [commercial sale of tobacco or in the manufacture, sale, distribution, [storage, shipment,] import or export of tobacco products or] / [the activities referred to in Article 5.1, the supply of tobacco, tobacco products and] manufacturing equipment used in the manufacture of tobacco products shall supply such products only in amounts commensurate with legitimate consumption or use in the intended market of use or retail sale and refuse to supply such items in amounts that exceed such consumption or use.]] or [The Parties require that all natural or legal persons engaged in the manufacture, sale, distribution, storage, shipment, import or export of tobacco products or manufacturing equipment used in the manufacture of tobacco products shall supply such products only in the amounts recognized by the competent national authorities, commensurate with consumption or use on the local market.] 7. Each Party [shall] / [should] require that [all natural and legal persons engaged in [the manufacture, sale, distribution, storage, shipment, import or export of tobacco products or manufacturing equipment used in the manufacture of tobacco products]] / [the tobacco industry] [the activities referred to in Article 5.1] report all suspicious transactions to the competent authorities.]] The CHAIR asked whether the Committee wished to remove the square brackets around “in accordance with its constitutional process” in paragraph 1. Ms GRANZIERA (WHO Secretariat, Office of the Legal Counsel), responding to a request from Mr TORRES MARTIN (Colombia) for clarification, said that “constitutional process” should be understood to mean internal constitutional processes. Mr TORRES MARTIN (Colombia) said that, for the purposes of consistency, it would be preferable to use the phrase “in accordance with its national laws and regulations”. The CHAIR took it that the Committee could agree with that amendment, which would obviate the need for the words “in force in the country”. In the absence of any objection, he would take it that the Committee could also agree to remove the square brackets from the phrase beginning “in the manufacture, sale” It was so agreed.
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The CHAIR asked whether the Committee could agree to remove the square brackets around Article 9 as a whole, on the understanding that the internal square brackets would be retained. Mr AZOFF (Israel) requested that paragraph 1 be placed in square brackets; the phrase “all reasonably practicable measures” was unclear and could lead to difficulties in the process of legislation. Mr WALTON-GEORGE (European Community), speaking in his capacity as Chairperson of the Intergovernmental Negotiating Body, drew attention to the flexible intent of paragraph 1: Parties were requested to implement measures requiring the persons involved in trade to take reasonable steps to prevent diversion of products into illicit trade channels. Each Party should decide on the means to be used to achieve that objective, whether legislative or simply administrative measures, in accordance with its national circumstances. Mr AZOFF (Israel) said that he would not insist on the text being placed in square brackets, but would reserve the right to return to the issue. The CHAIR said that the Committee could return to the matter once the work on Article 5 had been completed. Mr TORRES MARTIN (Colombia) said that the concerns of Israel might be met by replacing “practicable” with “effective”; the square brackets could then be removed. The CHAIR took it that the Committee could agree to the proposal by Colombia. It was so agreed. Mr ROWAN (European Community) said that he would prefer the square brackets around “raw materials and inputs in the production of tobacco / basic inputs, raw materials, and tobacco,” to be retained. Mr LEBEPE (South Africa) said that he had no objection to removing the square brackets around “key inputs”. Mr ROWAN (European Community) and Mr NJOKU (Nigeria) said that they could agree to the deletion of the square brackets around “and manufacturing equipment used in the manufacture of tobacco products”. Mr TORRES MARTIN (Colombia) recalled that paragraph 1 sought to prevent diversion from the supply chain into illicit trade channels. That objective might not be achieved if much of the text was left in square brackets, and he called for the removal of many of them, including those around the phrase “raw materials and inputs in the production of tobacco”. Mr COULOMBE (alternate to Mr Leguerrier, Canada) said that, as he understood it, an agreement had been reached to remove the square brackets around “and manufacturing equipment used in the manufacture of tobacco products”. Mr TORRES MARTIN (Colombia) said that the Parties in the WHO Latin American Region considered that “equipment” should not be included in the text. However, he would be prepared to accept the removal of the square brackets around “manufacturing equipment used in the manufacture of tobacco products” on the understanding that those around the phrase “raw materials and inputs in the production of tobacco” would also be deleted.
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Ms MATSAU (South Africa) said that she would prefer the phrase “key inputs” to be retained; the term “basic inputs” was unclear. Mr RAMAKRISHNAN (India) said that he had no objection to including the phrase “and manufacturing equipment used in the manufacture of tobacco products”, and “key inputs”; the words “basic inputs, raw materials, and” should remain in square brackets. Ms HEFFORD (Australia) said that, since it would be difficult to define or track “key inputs”, she would prefer the term to be omitted. However, it was for countries with strong views on the subject to negotiate an outcome among themselves. Mr OOKA (Japan) said that it would be preferable to retain the square brackets around “key inputs” and “and manufacturing equipment used in the manufacture of tobacco products”. Mr NJOKU (Nigeria) said that a particular problem in the African Region was the use of key inputs such as imported cigarette filters and papers used to make cigarettes that could not be traced and so contributed to illicit trade. The term “key inputs” should therefore be retained, and the square brackets around “tobacco” removed. Mr TORRES MARTIN (Colombia) agreed that “key inputs and raw materials” should be understood to mean filters and papers used in the manufacture of cigarettes, not other inputs. For the sake of clarity, a definition to that effect should be included in Article 1. Mr ROWAN (European Community) said that the term “key inputs” covered a vast amount of equipment and materials. As no key inputs were used solely for the manufacture of tobacco products, the term should not be included; it had not been included in the revised Chairperson’s text. The CHAIR said that the terms under discussion would remain in square brackets. Mr LEBEPE (South Africa) recalled that a consensus had been reached to remove the words “should” and “where appropriate” from paragraph 2. Mr OOKA (Japan) said that if “should” were deleted, the words “where appropriate” should be retained. Mr ROWAN (European Community) said that he wished to place on record that the terms “should where appropriate/necessary” should be removed from paragraph 2; it needed to be made clear that any infringements of law would be dealt with appropriately. Mr OOKA (Japan) stressed that proportionality was needed and that the Parties should be afforded flexibility. Supported by Ms HEFFORD (Australia) and Mr SAMUDA (Panama), he suggested that the phrase “in accordance with national laws” should be inserted at the beginning of the paragraph; the term “where appropriate” could then be deleted. Mr ROWAN (European Community) said that he would prefer paragraph 2 to include the wording “criminal, civil or administrative procedures”. Mr AL BAKER (United Arab Emirates) proposed the insertion of “or” between “criminal” and “civil”. The CHAIR took it that the Committee could agree the text as so amended.
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It was so agreed. Ms GRANZIERA (WHO Secretariat, Office of the Legal Counsel), responding to a request for clarification from the CHAIR, said that the phrase “and prohibition of the licencee from re-applying for a licence during a five-year period” was an additional condition to the suspension or cancellation of the licence to the effect that the licensee could not re-apply for a licence for a period of five years. Mr TORRES MARTIN (Colombia) proposed the deletion of paragraph 2; the issues to which it referred were covered in Part IV concerning offences. Mr LEBEPE (South Africa) supported the deletion of the phrase “and prohibition of the licencee from re-applying for a licence during a five-year period”. Mr GAO Xingzhi (China) endorsed that view, adding that Parties should be able to decide on the time period in accordance with their national laws. If there was general agreement to remove the phrase, China would be prepared to withdraw its alternative proposal, which read: “The competent authorities of each Party shall undertake strict audit to the licencee who re-applies for a license after such suspension or cancellation”. Mr TORRES MARTIN (Colombia) stressed that paragraph 2 should be deleted and incorporated in Article 14 on sanctions. A note should be added to the effect that the placement of the Article required further discussion. The CHAIR said that the Committee should at present focus on the content of the paragraph; its placement could be considered during the discussion of Article 14. Mr ROWAN (European Community) endorsed that approach and supported the deletion of all the text after “cancellation of a licence”. The CHAIR took it that the Committee could agree to delete the wording after “cancellation of a licence”, and to review the placement of the article during the discussion of Article 14. It was so agreed. The CHAIR said that a number of new proposals had been made concerning paragraph 3; he took it that the Committee could base its discussions on the revised Chairperson’s text. It was so agreed. Ms HEFFORD (Australia) said that she was uncomfortable with the term “intermingled” and wondered whether the proposed addition of “if intended to conceal or disguise tobacco products” was an attempt to explain it. The CHAIR said that, as he understood it, the term “intermingled” meant an intent to conceal cigarettes and other commodities within the same packaging. Ms HEFFORD (Australia) said that, in the interests of clarity, a definition of the term should be included in the text. Mr ROWAN (European Community) proposed that the whole paragraph 3 be deleted because in its present form it would be too cumbersome to enforce, particularly as the supply chain extended down to retail. Furthermore, the issue should be examined under Article 11, relating to free zones: in
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free zones in particular, serious problems arose when cigarettes were mixed with other goods and incorrectly described. (For continuation of the discussion on Article 9, see summary record of the seventh meeting.)
The meeting rose at 21:35.
SEVENTH MEETING Friday, 3 July 2009, at 10:25 Chair: Mr S. SHAKERIAN (Islamic Republic of Iran)
DRAFTING AND NEGOTIATION OF A PROTOCOL ON ILLICIT TRADE IN TOBACCO PRODUCTS: Item 5 of the Agenda (Documents FCTC/COP/INB-IT/3/3, FCTC/COP/INBIT/3/INF.DOC./1, FCTC/COP/INB-IT/3/INF.DOC./2, FCTC/COP/INB-IT/3/INF.DOC./4, FCTC/COP/INBIT/3/INF.DOC./6, FCTC/COP/INB-IT/3/INF.DOC./7 and FCTC/COP/INB-IT/3/INF.DOC./8) (continued) Part III: Supply chain control (continued) • Article 6: Customer identification and verification (continued from the sixth meeting) The CHAIR invited the representative of the European Community to report on the progress made by the informal group established at the previous meeting to consider Article 6. Mr Mc MICHAEL (European Community) said that the Parties represented had discussed how due diligence processes were conducted in their respective countries. Some Parties had binding agreements with tobacco manufacturers requiring the manufacturer to conduct due diligence on its first customer; that customer would then carry out due diligence on its subsequent customers. Other Parties had indicated that in their countries, due diligence processes were carried out by a national authority. The importance of due diligence to the protocol was agreed but views diverged as to how it should be carried out under Article 6. It had been suggested that due diligence should be made a requirement for the granting of a licence under Article 5, although that was not legislatively possible for some countries. A possible solution would be to incorporate the words “either/or” in Article 6 to give Parties the option to select who would carry out due diligence: either a national authority or for those involved in the sale of tobacco products to do so on their customers. The CHAIR thanked the informal group for its efforts and proposed that it should continue its work with a view to developing textual proposals. Ms HEFFORD (Australia), Professor PRAKIT VATHESATOGKIT (Thailand) and Dr ANIBUEZE (Nigeria) supported that proposal, as did Dr PRASAD (India) who added that the Parties in the WHO South-East Asia Region were in favour of establishing an obligation for due diligence and could support the proposal that the Parties themselves should decide on the mechanism for the performance of due diligence processes. Mr ROWAN (European Community), expressing support for the proposal by the CHAIR, agreed that work on developing an agreed text would continue immediately. (For continuation of the discussion on Article 6, see summary record of the eighth meeting.) • Article 9: Security and preventive measures (continued) The CHAIR invited the Committee to resume its consideration of paragraph 3.
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Dr ANIBUEZE (Nigeria) recalled that the only issue raised with regard to paragraph 3 of the Article at the previous meeting had been the use of the term “intermingled”. Australia had expressed willingness to accept its inclusion in the text, provided that the term was defined. The CHAIR said he took it that the Committee could agree to delete the word “shall” before “require that tobacco products”, and the brackets from the phrase “if intended to conceal or disguise tobacco products”, and deletion of the second alternative text proposed for paragraph 3. Ms TUCKER (European Community) said that the problem of intermingling was a very specific one that occurred primarily in free-trade zones. For that reason, the paragraph should be moved to Article 11 concerning free-trade areas and duty-free sales. Mr TAGOE (Ghana) said that he would not support moving paragraph 3 to Article 11; intermingling meant concealment and was an issue that affected all customs regimes. Ms TUCKER (European Community) reiterated the importance of clarifying the meaning of “intermingled”. The use of that term in the paragraph as it currently stood actually described actions closer to that of “groupage”, namely the carrying of tobacco products together with other different products through the supply chain. “Intermingling” was a technical customs term to describe a specific process: for example, a container described as carrying one set of goods entered the free zone warehouse and then left, described as carrying those same goods, but with the original load having been replaced with cigarettes. Furthermore, it should not be understood as “concealment”, which was a deliberate attempt to hide the cigarettes. Mr OOKA (Japan) endorsed the comments of the previous speaker, as did Mr COULOMBE (alternate to Mr Leguerrier, Canada) who agreed that the paragraph should be moved to Article 11. Mr TORRES MARTIN (Colombia) said that intermingling occurred not only in free zones but also during storage, transit and other import and export operations. Accordingly, he would prefer the text to remain where it stood. Mr LEBEPE (South Africa) endorsed that view. The CHAIR asked whether the Committee could agree to remove the brackets around paragraph 3 and attach an asterisk to the term “intermingled” to show that it needed to be defined. A footnote should be added to the effect that the placement of the Article required further discussion. Ms TUCKER (European Community), supported by Mr COULOMBE (alternate to Mr Leguerrier, Canada), said that the brackets around the paragraph should be retained. The CHAIR suggested that the Committee should remove the external brackets from paragraph 4 and the internal brackets from the phrase “natural or legal persons engaged in trade”. He took it that the Committee could agree to delete the word “sales”, retain “trade”, delete “the tobacco industry” and remove the brackets from “to the competent national authority”. It was so agreed. Mr LEBEPE (South Africa) said that the Parties in the WHO African Region considered that the word “should” ought to be replaced by “shall”. It would also be preferable to identify the competent national authority, such as the central bank or the customs services.
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The CHAIR said that the competent authority should be understood to be the authority assigned by government to receive reports. Ms TUCKER (European Community) asked whether the word “report” meant that Parties were to report after the event or at the time of the event, by means of a declaration. Mr SOLOMON (WHO Secretariat, Office of the Legal Counsel) said that in order to remove the many ambiguities regarding reports, including the timing thereof, the words “and in accordance with procedures established by such an authority” could be inserted after “competent national authority”. Mr MOREWANE (South Africa), speaking on behalf of the Parties in the WHO African Region, said that it should be made clear in the text that equipment used in the manufacture of tobacco products should also be subject to security and preventive measures. Dr ANIBUEZE (Nigeria) recalled that, at the previous meeting, it had been agreed to retain the reference to manufacturing equipment in paragraph 1. The CHAIR noted that Japan had indicated its objection to the removal of the brackets from “or manufacturing equipment used in the manufacture of tobacco products”. Mr ROWAN (European Community) said that the word “external” should be inserted before “border[s]”. Ms TUCKER (European Community) explained that under current legislation, cash declarations took place at the external borders of the European Union, not internally within the European Union itself. Mr TORRES MARTIN (Colombia) supported the inclusion of the word “external”. It was his understanding that when a commodity entered the European Union, the customs formalities completed at the point of entry would suffice for all the member countries. Mr PINEDA (Mexico), speaking on behalf of the Parties in the WHO Region of the Americas, said that the specific reference to “the tobacco industry” should be retained. The CHAIR pointed out that it had already been agreed to delete that reference. Mr SOLOMON (WHO Secretariat, Office of the Legal Counsel) said that if the Committee considered the tobacco industry to be subsumed within the broader category of natural or legal persons engaged in trade or in the production of tobacco, it would be unnecessary to make specific reference to the industry in the paragraph. The CHAIR took it that the Committee could agree to the suggestion to include the word “external” in the paragraph and to retain the reference to “the tobacco industry” pending a decision on whether or not the industry was understood to be subsumed within the category of natural or legal persons. It was so agreed. The CHAIR asked whether the Committee could agree to remove the brackets from the phrase “or equivalent as stipulated in the currency requirements of the domestic Reserve Bank”, the words “or equivalent” having been omitted in error from the revised draft text before the Committee.
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Mr LEBEPE (South Africa) said that it was his understanding that an agreement had been reached to delete the references to specific currencies in paragraph 4. Mr COULOMBE (alternate to Mr Leguerrier, Canada) said that he opposed the removal of the brackets; the provision related mainly to money laundering, which was already partially addressed under paragraph 2 of Article 7 of the United Nations Convention against Transnational Organized Crime. The CHAIR suggested that interested Parties should be asked to consult informally on the monetary aspects of the paragraph with a view to developing acceptable wording. It was so agreed. The CHAIR asked whether the Committee could agree to delete the alternative version of paragraph 5 and use the Chairperson’s text as the basis for its discussion, in which case the external brackets should be removed from the paragraph and the word “shall” should be deleted. It was so agreed. Mr WALTON-GEORGE (European Community), speaking in his capacity as Chairperson of the Intergovernmental Negotiating Body and responding to a request for clarification from Ms HEFFORD (Australia), said that the intent of paragraphs 4 and 5 was to make the supply chain more secure by identifying suspect transactions and the avoidance of payment mechanisms that would circumvent the normal control measures for legitimate trade. He exemplified large cash payments and other possible indicators of money laundering. Ms HEFFORD (Australia) said that the text might be simplified by using language to the effect that transfers of funds could be accepted consistent with the legal mode of payment in the territory concerned. The CHAIR suggested that the representatives of Australia and India should be asked to consult informally with a view to drafting a simplified version of paragraph 5. It was so agreed. The CHAIR said he took it that the Committee wished to delete the alternative version of paragraph 6 and remove the external brackets from the text of the paragraph to be considered. It was so agreed. Mr OOKA (Japan) said that he would prefer that the word “should” be retained. Ms HEFFORD (Australia) asked what the term “legitimate consumption” meant and how it was measured. Mr TORRES MARTIN (Colombia), supported by a textual clarification from Mr FISCH BERRDO MENEZES (Brazil), said that the phrase “raw materials and inputs for tobacco products” should be inserted in the text. Mr AZOFF (Israel) said that he shared the concerns expressed regarding the term “legitimate consumption”. In addition, the words “storage, shipment” should remain in square brackets, since the person storing or shipping the tobacco often had no responsibility in regard to the transaction.
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The CHAIR agreed that it would be difficult to define “legitimate consumption” and suggested that the term “estimated consumption” might be more appropriate. Mr WALTON-GEORGE (European Community), speaking in his capacity as Chairperson of the Intergovernmental Negotiating Body, said that the intent was to ensure that the right amount of product entered a market for consumption in that market. The term “estimated consumption” might therefore be suitable. In the absence of any objection, the CHAIR said that he would take it that the Committee could agree to replace the term “legitimate consumption” with “estimated consumption”. It was so agreed. Professor TIDJANI (Togo) suggested replacing “consumption” with “national demand”. The CHAIR proposed the removal of brackets from the words “storage, shipment”. It was so agreed. Mr KABWEBWE TSHILOMBO (Democratic Republic of the Congo) drew attention to an error in the French language version of the paragraph, which used the phrase “l’utilisation estimée sur le marché sur lesquels”. Mr WALTON-GEORGE (European Community), speaking in his capacity as Chairperson of the Intergovernmental Negotiating Body and replying to the comment made by the representative of Togo, said that the term “consumption” had been deliberately chosen in order to convey the idea that supply was equivalent to actual consumption in a particular market. The term “demand” was broader in scope than “consumption”; there could be high demand for cigarettes in a particular country if the intent was to smuggle those cigarettes to another country. Mr COULOMBE (alternate to Mr Leguerrier, Canada) said that paragraph 6 should be kept in square brackets since it would be very difficult for Parties to implement the actions provided for in the text. In addition, as there was some uncertainty as to whether the obligation provided for would be binding on the Parties, the word “should” at the beginning of the paragraph could conveniently be replaced by “may” in order to convey the idea of a legally non-binding obligation. The CHAIR said that the word “should” usefully served the purpose of a non-binding obligation, whereas “may” would add a further layer of complexity to the discussion. Mr COULOMBE (Canada) pointed out that, in the Framework Convention, “should” was sometimes used when clearly denoting a binding obligation. Ms MADRAZO REYNOSO (Mexico) said that any provision must give legal certainty to the implementing authority and the natural or legal persons complying with it. There remained some uncertainty about the criteria for measuring quantities even with the use of the term “estimated consumption”, and she therefore supported the suggestion by Canada to keep the paragraph in brackets. The CHAIR said he took it that the Committee could agree to insert the term “may” and keep the paragraph in brackets. It was so agreed.
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The CHAIR invited the Committee to consider the bracketed options contained in paragraph 7. Mr TORRES MARTIN (Colombia) said that there was an ethical and moral obligation on all natural and legal persons engaged in the activities provided for to report all suspicious transactions to the competent authorities. He requested that the phrase “raw materials and inputs for tobacco products” be inserted before “manufacturing equipment”. The CHAIR said he took it that the Committee could agree to remove the brackets from the phrase beginning “all natural and legal persons”, as well as from “the activities referred to in Article 5.1” It was so agreed. Mr LEBEPE (South Africa) said that, as suspicious transactions also occurred in transit, the word “transit” should be inserted before “shipment”. The CHAIR said he took it that the Committee could agree with the proposal by South Africa. It was so agreed. Ms ROA RODRÍGUEZ (Panama), noting that some 40% of the illicit trade in tobacco products was linked to the tobacco industry, asked how the industry was to be expected to denounce suspicious transactions in which it was itself involved. The CHAIR invited the representative of Australia to propose a simplified text for paragraph 5. Ms HEFFORD (Australia) said that the new text proposed by the representatives of Australia and India was the following: “Parties shall/should require that payments for transactions relating to the manufacture, sale, distribution, storage, shipment, import or export of tobacco products and manufacturing equipment used in the manufacturing of tobacco products be allowed only through legal modes of payment from the financial institutions located in the territory of the intended market of sale of the tobacco products, and should not be operated through any other alternate remittance system”. The CHAIR suggested that the proposed new text should be used as the basis for the Committee’s discussion and that the previous version of paragraph 5 should be deleted. It was so agreed. Replying to a point raised by Mr TORRES MARTIN (Colombia), the CHAIR said that the final text of paragraphs 4 and 5 would be checked carefully by the Convention Secretariat and the Legal Counsel to ensure consistency with other legal instruments, including the United Nations Convention against Corruption and the United Nations Convention against Transnational Organized Crime. Mr COULOMBE (alternate to Mr Leguerrier, Canada) requested that the proposed new paragraph be placed in square brackets. It was so agreed. Mr LEBEPE (South Africa) suggested that Canada should work with Australia and India to develop wording that was acceptable to all Parties.
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Mr YEO Sew Meng (Singapore), referring to the proposed new text of paragraph 5, asked whether carriers shipping containers of cigarettes to a particular destination could receive payment only from the country of destination. Mr COULOMBE (alternate to Mr Leguerrier, Canada) said that, following their informal discussions on paragraph 4, Canada, Israel and South Africa proposed that the paragraph should end with the words: “cross-(external) border transfer of substantial quantities of cash as stipulated in national laws or regulations”. Mr SOLOMON (WHO Secretariat, Office of the Legal Counsel) said that, for the purposes of consistency with other international legal instruments, including paragraph 2 of Article 7 of the United Nations Convention against Transnational Organized Crime, the words “and appropriate negotiable instruments” should be added after “cash”. As the reference in the paragraph to “Reserve Bank” could be interpreted as too restrictive, he suggested that the words: “with respect to the domestic Reserve Bank or appropriate monetary authority” might also be incorporated in the text. Mr WALTON-GEORGE (European Community), speaking in his capacity as Chairperson of the Intergovernmental Negotiating Body and responding to the earlier question from the representative of Panama concerning paragraph 7, confirmed that the industry was required to inform Parties of any transactions that were not in line with normal business practice. The representative of Singapore had identified a flaw in the text that should be rectified; the carrier would expect to be paid by the organization that had ordered the shipment, which, in some circumstances, would not be located in the country of destination of the cigarettes. Ms MADRAZO REYNOSO (Mexico), referring to paragraph 7, stressed the importance of legal certainty. The term “suspicious” needed to be defined and clear criteria developed to determine what constituted a suspicious transaction; otherwise the tobacco industry might fail to report certain transactions. The CHAIR recalled that the term “suspicious transactions” was defined under Article 1. It could remain in brackets in paragraph 7 of Article 9, pending final agreement on the text of Article 1. In response to a question from Mr YEO Sew Meng (Singapore) relating to paragraph 7, Mr WALTON-GEORGE (European Community), speaking in his capacity as Chairperson of the Intergovernmental Negotiating Body, said that shippers should be among those required to report suspicious transactions as they might identify unusual business trends. (For continuation of the discussion on Article 9, see summary record of the ninth meeting, section 1.) • Article 10: Sale by Internet, telecommunication or other evolving technology (continued from the fourth meeting) The CHAIR invited the Committee to consider the revised draft text reflecting the proposals of Committee A concerning Article 10, which read:
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PART III: SUPPLY CHAIN CONTROL Article 10 [Sale by Internet, telecommunication or any other evolving technology [Each Party shall require that [the tobacco industry and other] [all] legal and natural persons engaged in commercial sales of [tobacco or the manufacture [,] [or] sale[, distribution, storage, shipment, import or export] of [raw material and inputs in the production of tobacco,] tobacco products [, key inputs] [or manufacturing equipment used in the manufacture of tobacco products]] / [cigarettes] conducting business through Internet-, telecommunication- or any other evolving technology-based modes of sale comply with all relevant obligations covered by this Protocol. [Retailing of tobacco products by means of the above ways of distribution should be banned.] [If the national law of Parties bans sales of tobacco products through modes of sales mentioned above, the national law of Parties shall apply.]] or [1. Each Party shall, to the extent considered appropriate in the context of its own legal, administrative and regulatory framework, as well as its illicit trade environment, require that all legal and natural persons engaged in the manufacture, sale, distribution, storage, shipment, import or export of tobacco products conducting business through Internet-, telecommunication- or any other evolving technology-based modes of sale comply with all relevant obligations covered by this Protocol. 2. Each Party may choose, to the extent considered appropriate in the context of its own legal, administrative and regulatory framework, as well as its illicit trade environment, require that all legal and natural persons engaged in the sale or distribution of leaf tobacco or manufacturing equipment used in the manufacture of tobacco products conducting business through Internet-, telecommunication- or any other evolving technology-based modes of sale comply with all relevant obligations covered by this Protocol.] or [[Each Party shall [, within three years of the entry into force of this Protocol,] ban sales of [raw material and inputs in the production of tobacco,] tobacco, tobacco products [, key inputs] [and total ban of advertisement of] [or] manufacturing equipment [for sale] [used in the manufacture of tobacco products] through Internet-, telecommunication- or any other evolving technology-based modes of sale.]]] or [Sale by telecommunication or any other remote means Each Party shall, within three years of the entry of the force of the Protocol for that Party, implement effective measures to prohibit: (a) Retail sales of tobacco, or tobacco products through any remote means, including the Internet, or any other telecommunications medium;
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(b) Provision of any service that facilitates payment for any retail sale of tobacco or tobacco products through any remote means, by any natural or legal person who knows or ought reasonably to know that they are facilitating payment for such a sale; and (c) Transport or delivery of tobacco or tobacco products the subject of retail sale through any remote means, by any natural or legal person who knows or ought reasonably to know that they are transporting or delivering tobacco or tobacco products the subject of such a sale.] The CHAIR recalled that two options had been presented by the Chairperson for consideration. He noted that several Parties objected to one or the other of the proposed alternatives. Mr DAGANEE (Libyan Arab Jamahiriya) recalled that the Parties in the WHO Eastern Mediterranean Region had put forward an amendment to the first option to the effect that retailing of tobacco products by means of the Internet should be banned. That proposal should be included in the text of whichever option was selected. The CHAIR invited those Parties that had objections to either of the alternatives to consult informally with a view to developing a new text for the Committee’s consideration. Mr ROWAN (European Community) said that as the two options were so different, it would be very difficult for Parties to accomplish that task. Mr AL BAKER (United Arab Emirates) said that he would have preferred the first option. Dr ALELUIA LOPES (Guinea-Bissau) said that, in his view, the last option on page 2 of the revised draft text before the Committee could constitute a basis for discussion. The CHAIR said that he would report to the Chairperson of the Intergovernmental Negotiating Body that, in view of time constraints, the Committee had been unable to decide on how to proceed with the Article.
The meeting rose at 13:00.
EIGHTH MEETING Friday, 3 July 2009, at 15:25 Chair: Mr S. SHAKERIAN (Islamic Republic of Iran)
DRAFTING AND NEGOTIATION OF A PROTOCOL ON ILLICIT TRADE IN TOBACCO PRODUCTS: Item 5 of the Agenda (Documents FCTC/COP/INB-IT/3/3, FCTC/COP/INBIT/3/INF.DOC./1, FCTC/COP/INB-IT/3/INF.DOC./2, FCTC/COP/INB-IT/3/INF.DOC./3, FCTC/COP/INBIT/3/INF.DOC./5, FCTC/COP/INB-IT/3/INF.DOC./6 and FCTC/COP/INB-IT/3/INF.DOC./8) (continued) Part III: Supply chain control (continued) • Article 6: customer identification and verification (continued from the seventh meeting) The CHAIR invited the representative of the European Community to report on the informal consultations being held with respect to Article 6. Mr Mc MICHAEL (European Community) said that an introductory paragraph or “chapeau” part to Article 6 was being proposed. The suggested text read: “Due diligence shall be conducted by the Party or any natural or legal person obligated by the Party in accordance with national laws or legally binding and enforceable agreements”. The CHAIR said that the introductory paragraph should apply to all the paragraphs in Article 6, and suggested that the informal group should be asked to reconvene with a view to developing a concrete textual proposal. It was so agreed. Dr AL-LAWATI (Oman) pointed out that if the informal group was to produce text for the whole of Article 6, it would require technical support from the Convention Secretariat to project the text on screen. (For continuation of the discussion on Article 6, see summary record of the ninth meeting, section 1.) • Article 11: Free-trade areas and duty-free sales The CHAIR invited the Committee to consider the revised draft text reflecting the proposals of delegations on Article 11, which read:
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PART III: SUPPLY CHAIN CONTROL [Article 11 Free-trade areas and duty-free sales Each Party [shall] / [should], within [three] / [two] years of the entry into force of this Protocol for that Party, [implement effective measures to] prohibit any tax, regulatory or other advantages that apply in free-trade [areas] / [zones] from applying to [raw material and inputs in the production of tobacco,] tobacco, tobacco products[, key inputs] [or manufacturing equipment used in the manufacture of tobacco products,] [and] including [a ban on] tax-reduced and duty-free sales to individual customers [at duty free outlets].] or [Each Party shall, within three years of the entry into force of this Protocol for that Party, implement effective controls on all trade in tobacco products in Free Zones, by use of relevant measures as detailed in this Protocol; in particular, Tracking and Tracing, Know Your Customer, and anti-money laundering provisions. In addition, the intermingling of cigarettes with any non-tobacco products on exports from Free Zones shall be prohibited.] or [Each Party shall adopt and implement effective legislative, law enforcement, administrative or other measures to reinforce the management of free-trade and duty free sales areas, and to prevent and reduce the illegal trade of tobacco products.] or [Each Party shall, within three years of entry into force of this Protocol for that Party, implement effective measures to prohibit the introduction of any tobacco, tobacco products or manufacturing equipment used in the manufacture of tobacco products into any free-trade zones, except: (a) Tobacco or tobacco products introduced into the free-trade zone by a natural person or personal use; or (b) Tobacco or tobacco products introduced into the free-trade zone for the purposes of sale to persons ordinarily present in the free-trade zone, provided that any duties, taxes or other charges ordinarily applicable in that Party’s territory are applied to such sales.] or [Each Party shall, within three years of the entry into force of this Protocol for that Party, implement effective measures to prohibit the application to tobacco products on sale to international travellers at all airport shops, maritime or land terminals, of any tax, regulatory or other advantages, including tax-reduced and duty-free sales. Without prejudice to the sovereign right of Parties to decide upon and establish their tax policy, they shall endeavour to adopt their national provisions by establishing control measures
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regarding goods in transit, particularly in the case of tobacco, tobacco products and equipment used in the manufacture of tobacco products, with a view to ensuring the effective control of illicit trade in free-trade areas.] or [Each party shall, within three years of the entry into force of this Protocol for that Party, implement effective measures to prohibit tax-reduced and duty-free sales of tobacco or tobacco products to international travellers.] or [Each Party shall ban duty-free sales of tobacco within one year of entry into force of this Protocol.] or [Each Party shall implement effective measures to prohibit any tax, regulatory, or other advantages that apply in free trade areas within two years of the entry into force of this Protocol.] The CHAIR asked whether there was any objection to removing the brackets around Article 11. Ms ROA RODRÍGUEZ (Panama) said that she did not agree to the removal of the brackets. The CHAIR said that he did not wish to reopen discussion on what was a very important article for some Parties. Noting that the document before the Committee contained the revised text proposed by the Chairperson for Article 11 together with seven alternative versions, he suggested that the Committee base its discussions on the revised Chairperson’s text. He invited representatives to state their positions and their preferred option only. Mr ROWAN (European Community) said that the European Community could not accept a ban on duty-free sales of cigarettes. Although the sale of cigarettes through free zones could not be prohibited, smuggling from certain free zones was a serious problem that resulted in huge quantities of cigarettes entering the European Union fraudulently on a weekly basis. Accordingly, there should be effective controls in free zones, and steps should be taken to prohibit the intermingling of cigarettes with non-tobacco products exported from free zones. He suggested that the title of the Article should be amended to read: “Free zones and duty-free sales”, and he opposed the deletion of the word “should” in the revised Chairperson’s text. Mr PACE (Convention Secretariat) said that there was some confusion regarding the meaning of the terms “free-trade area” and “free zone”. A free-trade area was defined within the WTO framework, and in particular under Article XXIV.8(b) of the General Agreement on Tariffs and Trade (1994), as a group of two or more customs territories in which the duties and other restrictive regulations of commerce were eliminated on substantially all the trade between the constituent territories in products originating in such territories by way of agreement. A customs union was a freetrade area with a common external tariff. A free zone was defined in the Protocol of Amendment to the International Convention on the Simplification and Harmonization of Customs Procedures (1999), as a part of the territory of a Contracting Party where any goods introduced were generally regarded, in so far as import duties and taxes were concerned, as being outside the territory (in Annex D, chapter 2). A free zone could be either a “commercial free zone” or an “industrial free zone”, and each free zone could be a duty-free zone depending locally and domestically on the regime implemented within the territory. Accordingly, free zone was the correct term to use in the context. As free zones and duty-free
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sales were completely different regimes, they might be better addressed in the protocol in two separate articles. The CHAIR suggested that free zones and duty-free sales should be addressed in two separate paragraphs within the same Article, and invited Parties to indicate which of the alternative versions they preferred. Mr ESCUDERO (Chile) endorsed the comments by the European Community, and agreed that free zones and duty-free sales should be addressed in two separate paragraphs. Mr GAO Xingzhi (China) agreed that the issues of duty-free sales and free zones should be addressed separately in the text. Further information regarding free-trade areas would also be useful. Dr PRASAD (India), speaking on behalf of the Parties in the WHO South-East Asia Region, supported the suggestion to replace “free-trade areas” with “free zones” in the title. As free zones and duty-free sales were entirely different issues, they should be addressed in separate articles. Mr TORRES MARTIN (Colombia) agreed that it would be more accurate to use the term “free zones” rather than “free-trade areas” in the title. Free-trade areas were areas covering two or more countries which had signed a free-trade agreement, whereas free zones were areas of national territory having the benefit of customs extraterritoriality. Furthermore, free zones and duty-free sales should be addressed in two separate articles. Dr TSETSEGDARI (Mongolia) said that the Committee’s discussions should focus on the Chairperson’s text. Ms HEFFORD (Australia) said that the Committee might wish to base its discussion on the text that began “Each Party shall adopt and implement effective legislative, law enforcement, administrative or other measures”, which was the simplest of the alternatives suggested. Ms BURKE (Barbados) said that Barbados did not support a ban on duty-free sales: the revised Chairperson’s text would remove the sovereign discretionary right of governments to adopt taxation measures in accordance with their own circumstances within a legitimate and regulated framework of duty-free sales. She agreed that free zones and duty-free sales were distinct concepts that should be addressed in separate paragraphs, and said that the reference to free-trade areas in the option favoured by Australia needed to be clarified. Mr AL BAKER (United Arab Emirates) agreed that there was a fundamental difference between free zones, which came under the jurisdiction of a single State, and free-trade areas, which came under the jurisdiction of two or more States. He requested clarification as to whether areas such as duty-free warehouses, where goods were not subject to taxation, would be covered by Article 11. Mr NJOKU (Nigeria) agreed that free zones and duty-free sales were quite distinct issues that should be addressed separately. If duty free sales were not to be banned, they should be given the same status as the domestic sale of tobacco. Dr VIVILI (Tonga), speaking on behalf of the Pacific island Parties, agreed that the issues should be addressed in separate paragraphs. Duty-free tobacco sales should be banned. Dr LEWIS-FULLER (Jamaica) endorsed the view that free zones and duty-free sales were entirely different concepts that should, ideally, be dealt with in two separate articles. If they were to be dealt with in the same article, she was in favour of the wording supported by Australia, as set out in the second alternative to the revised Chairperson’s text, provided that the phrase “free-trade and duty
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free sales areas” was replaced by “free zones”, and the words “and reduce” were deleted. With regard to duty-free sales, she supported the wording of the proposed alternative that read: “Each Party shall, within three years of the entry into force of this Protocol for that Party, implement effective measures to prohibit tax-reduced and duty-free sales of tobacco or tobacco products to international travellers”. Mr COULOMBE (alternate to Mr Leguerrier, Canada) agreed that it would be appropriate to deal with the issues separately. The Committee might wish to base its discussion on a combination of the alternative supported by Australia and Jamaica and the second paragraph of the first proposed alternative. Mr OOKA (Japan) said that the Committee should carefully consider the risk of adopting wording for Article 11 that went beyond the scope of Article 6 of the Framework Convention. The CHAIR said that there appeared to be general consensus on the need to separate the two issues. Following consultations, he suggested that the Committee should base its discussion on the two paragraphs in the fourth alternative. The two paragraphs would be entitled “Duty-free sales” and “Free zones”, respectively, and the term “free-trade areas” at the end of the second paragraph would be replaced by “free zones”. Mr PADILLA (Philippines) suggested that the first paragraph of the proposed alternative should draw on the language of subparagraph 2(b) of Article 6 of the Framework Convention, so as to read: “Each Party shall, within three years of the entry into force of this Protocol for that Party, implement effective measures to prohibit sales to and/or importations by international travellers of tax and dutyfree tobacco products”. Mr ROWAN (European Community) said that the first paragraph of the fourth alternative, concerning duty-free sales, could constitute a basis for discussion. However, the second paragraph was weak and addressed goods in transit, rather than free zones, and was therefore unacceptable. The first alternative, suggested by the European Community, would be a better basis for discussion. The CHAIR invited comments on the first paragraph concerning duty-free sales. Ms ROA RODRÍGUEZ (Panama) said that she could accept the proposed text concerning dutyfree sales. Mr NJOKU (Nigeria) suggested that the phrase “all airport shops, maritime or land terminals” should be replaced by “duty-free outlets”. Ms YUN Mi-ran (Republic of Korea), endorsing the comments of Japan, said that banning dutyfree sales would go beyond the scope of the Framework Convention and could conflict with many other international instruments. The beginning of the paragraph should be amended along the following lines: “Each Party shall implement effective measures to reinforce the management of tobacco products on sale in the duty-free area”. Ms HEFFORD (Australia) said that the words “or restrict” should be included in the text being developed. Mr GAO Xingzhi (China) said that he agreed with the representatives of Japan and Korea that banning duty-free sales bore little relation to the concept of combating illicit trade in tobacco products. China’s proposal for the paragraph, which was set forth as the third option in the document before the Committee and was based on the wording of Article 15 of the Framework Convention, read: “Each Party shall adopt and implement effective legislative, law enforcement, administrative or other
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measures to reinforce the management of free-trade and duty free sales areas, and to prevent and reduce the illegal trade of tobacco products”. Mr ROWAN (European Community) observed that some Parties were quoting from the Framework Convention in a selective manner. The European Union regarded cigarette smuggling as a serious problem but duty-free shops were acceptable. Any problems caused by such shops in terms of illicit trade were usually small enough to be addressed by local customs officials that controlled such outlets. He wondered whether that view was shared by other Parties. Mr PADILLA (Philippines) explained that in drawing on the language of subparagraph 2(b) of Article 6 of the Framework Convention, his Party’s proposal for the paragraph had omitted any reference to restricting sales. That was because the Framework Convention itself gave Parties the choice between “prohibiting” and “restricting” and the Philippines wished the protocol to prohibit sales to and importations by international travellers of tax-free and duty-free tobacco products. Dutyfree sales were a problem for the Philippines, as they were used as a conduit for smuggling. Mr TORRES MARTIN (Colombia) said that Colombia was in favour of charging taxes on dutyfree sales of cigarettes. The CHAIR, noting the importance of the issue, suggested that interested Parties, including Australia, China, Colombia, the European Community, India, Nigeria, Panama, the Republic of Korea and the United Arab Emirates should consult informally with a view to developing a solution. He invited India to act as coordinator. It was so agreed. Dr VIVILI (Tonga) said that it was well known that in the Pacific island States, a significant quantity of tobacco products destined for the duty-free market became available on the open market. Although that was essentially a matter of enforcement, limited resources made the charging of duty on duty-free tobacco the easiest and most effective way to address the issue. Dr TSETSEGDARI (Mongolia) said that Mongolia was in favour of banning duty-free tobacco sales. There were sufficient options provided to enable the Committee to select appropriate text for each of the two issues under consideration, duty-free sales and free zones. The CHAIR said that it would be preferable for interested Parties to consult informally rather than for the Committee to navigate among the eight available options. Mr NJOKU (Nigeria) supported the views expressed by the representative of the Philippines. Nigeria regularly seized consignments of cigarettes intended for duty-free shops that were smuggled into the domestic market. The problem might be less acute in developed countries with established tracking and tracing mechanisms. Mr ROWAN (European Community) pointed out that developed countries were also affected by leakage from duty-free markets, which should be addressed by the competent customs authorities. The main problem was not duty-free sales as such, but diversion of products intended for the duty-free market, which could be addressed by a comprehensive tracking and tracing system. In response to a comment from Mr TORRES MARTIN (Colombia), the CHAIR said that the informal group would address the subject of free zones as well as duty-free sales. (For continuation of the discussion on Article 11, see summary record of the ninth meeting, section 1.)
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• Article 5: Licence or equivalent approval/similar control system (continued from the fifth meeting) The CHAIR invited the Committee to consider the revised draft text reflecting the proposals of Committee A on Article 5, which read: PART III: SUPPLY CHAIN CONTROL Article 5 Licence or [equivalent approval] / [similar control] system 1. Each Party shall[, where necessary,] [grant, through the competent authority, a licence to] [prohibit] / [control or regulate] [the conduct of any [of the following] activities [by [the tobacco industry] [any legal or natural person]] [except pursuant to a licence or [equivalent approval] / [similar controls] (hereafter “licence”) [to conduct such activities] granted by a [competent] [national] [or designated] [competent] authorit[ies]/[y]] / [to enable them to undertake the following]: (a) [manufacturing tobacco products;]
[(b) [manufacturing the manufacturing] / [possession of] / [manufacturing and possession of the manufacturing] equipment [whose sole use is] [used in] the manufacture of tobacco products;] [(c) [where appropriate] commercial* import or export [or wholesaling, [retailing,] [brokering, warehousing or distribution] of tobacco, tobacco products or [manufacturing equipment used in the manufacture]] of tobacco products; (d) [where appropriate] [transporting] commercial quantities of tobacco, tobacco products or manufacturing equipment used in the manufacture of tobacco products; and (e) primary processing of tobacco*.]
2. Each Party shall endeavour to license, to the extent considered appropriate, any legal [or natural person] engaged in commercial growing[, manufacturing] [or] / [and] retailing of tobacco and tobacco products. 3. With a view to ensuring an effective licensing [or control] system, each Party shall: (a) designate or establish [a] competent authorit[y]/[ies] to [control, regulate,] issue, renew, suspend, revoke and/or cancel licences, subject to the provisions of this Protocol and [in accordance with its national [tobacco control policy] / [legislation] / [tobacco control[, policy and strategy] programme],] to conduct the activities specified in paragraph 1 of this Article; (b) require that each application for a licence contains [relevant required]information about the [licensee] / [applicant], [that may include] / [including]: [(i) [when]/[where] the applicant is a natural person, information regarding his or her identity, applicable [tax registration numbers and business registration number,] as appropriate;]
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(ii) [when]/[where] the applicant is a legal person, information regarding its identity, including date and [place of incorporation, business registration number, applicable tax registration numbers, its’ corporate affiliates, names of its officers and directors] [and] [as well as] the names [and identity] of its designated representatives; (iii) precise business location of the manufacturing unit(s) and [production [and installed] capacity of the business] run by the applicant; (iv) [details of [the tobacco, tobacco products and manufacturing equipment used in the manufacture of tobacco products covered by the application, such as]] product description, name, registered trade mark, if any, design, brand, model or make; (v) [a description of where manufacturing equipment for use in the manufacture of tobacco products will be installed and used]; (vi) [documentation regarding any offences [directly related to tobacco trade] [committed or charges filed by government agencies, including criminal records]]; (vii) [complete identification of the bank accounts intended to be used in the relevant transactions and other relevant payment details; and] [(viii) a description of the intended use and intended market of retail sale of the tobacco or tobacco products[, with particular attention to ensuring that tobacco product production or supply is commensurate with reasonably anticipated [legitimate] demand];] (c) monitor and collect any licence fees that may be levied and consider using them in effective administration and enforcement of the licensing system or for public health or any other related activity in accordance with national laws and regulations; (d) take effective measures to prevent, detect and investigate any irregular or fraudulent practices in the operation of the licensing system; (e) undertake measures such as periodic review, [renewal,] inspection or audit of licensees;
(f) [as appropriate,] establish a time frame for expiration of licences and subsequent requisite reapplication or updating of application information; and [(g) oblige licensed manufacturers [of tobacco products and manufacturing equipment used in the manufacture of tobacco products] to inform the competent authority six months in advance of any change of location of their business.] 4. Each Party shall ensure that no licence shall be assigned and/or transferred without prior approval from the designated or established competent authority. 5. Each Party shall endeavour to adopt and apply control and verification measures to the international transit, within its territory, of tobacco, tobacco products and manufacturing equipment used in the manufacture of tobacco products in conformity with the provisions of this Protocol in order to prevent illicit cross-border trade in such products.
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Proposed Preambular Paragraph Stressing the importance of public health objectives of the Framework Convention on Tobacco Control and recognizing the significant role of the licensing system in all state Parties in eliminating illicit trade in tobacco products as well as in protecting public health. The CHAIR suggested that the title should be amended to read: “Licence or equivalent approval system”. Ms LECLAIRE (alternate to Mr Leguerrier, Canada) said that Canada had requested the inclusion in the title of the words “similar control” to cover similar approaches other than licences, such as registration. Canada would be prepared to accept the wording “Licence or equivalent control system”. Following a request for clarification from Ms KIPTUI (Kenya), the CHAIR confirmed that “equivalent control” encompassed both prior approval and control after the granting of a licence. Mr ROWAN (European Community) said that he could accept the term “equivalent control”. Dr TSETSEGDARI (Mongolia) said that her Party would prefer “equivalent approval” to “equivalent control”. The CHAIR suggested, in the light of the views expressed, that the title should be amended to read: “Licence or equivalent approval/equivalent control system”. It was so agreed. The CHAIR, referring to paragraph 1 of the Article, suggested that the phrase “grant, through the competent authority, a licence to”, be deleted and the brackets around “prohibit” removed. It was so agreed. Mr FISCH BERREDO MENEZES (Brazil) said that he would prefer the words “control or regulate” to be retained. In his country, tobacco industry activities were prohibited, except pursuant to a licence; other activities were controlled and regulated. The CHAIR suggested that the text might be amended to read: “prohibit, control or regulate”. Ms KIPTUI (Kenya) suggested that the text should read: “prohibit or put in place effective measures to control”. The CHAIR suggested that the brackets should be removed from the phrase “the conduct of any of the following activities”. In the light of the discussion on the title, the words “similar controls” should be replaced by “equivalent controls”. He assumed that the Committee could agree to remove the brackets from the phrase beginning “except pursuant to a licence” and from “to conduct such activities”.
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Dr ANIBUEZE (Nigeria) said that he would prefer the word “control” to be replaced by “regulate” in order to strengthen the text. However, as “control” was used in the Framework Convention, he would be prepared to accept the Kenyan proposal. Mr GÖRÜN (Turkey) said that the inclusion of wording such as “or put in place effective measures to control” would weaken the text. Under Turkish law, firms could not enter into any transaction or activities without a licence, and any wording other than “prohibit” was not acceptable. Professor TIDJANI (Togo) endorsed those comments. The CHAIR suggested that the phrase “or put in place effective measures to control” should be placed between brackets. He read out the text, as it currently stood, for the purposes of clarity: “Each Party shall prohibit or put in place effective measures to control any of the following activities by the tobacco industry, any legal or natural person except pursuant to a licence or equivalent approval/equivalent control (hereafter “licence”)”. Mr FISCH BERREDO MENEZES (Brazil) suggested that the phrase “except pursuant to a licence or equivalent approval/equivalent control (hereafter “licence”)” should be inserted after “prohibit”. Ms MADRAZO REYNOSO (Mexico) expressed concern about the way in which the paragraph was currently worded. It began with the phrase “Each Party shall prohibit ...”. However, the purpose of a licence or equivalent control system was not to prohibit certain activities, but to authorize them. What was prohibited was the unlawful conduct of activities that were not licensed. It should be indicated, therefore, that each Party should implement effective measures to control certain activities. One way of doing that was through licensing, but there were others, such as regulation, verification visits and inspections. In addition, not all the activities referred to required a licence in all countries. Her Party was concerned that activities which required licensing were being grouped together with those which did not. The competent authority of each Party should issue licences, where appropriate, in accordance with national laws and regulations, and activities that were not licensed would be prohibited, and therefore illegal. However, prohibition should not be the main objective of the paragraph. The CHAIR said that the Chairperson of the Intergovernmental Negotiating Body had suggested the following new wording for the paragraph: “The following activities can be carried out by any natural or legal person only if the person is in possession of a licence or equivalent approval issued by the Party”. Mr DAGANEE (Libyan Arab Jamahiriya) said that there was no justification for the large number of brackets in paragraph 1. The issue was simply that some commercial or industrial activities could not be carried out except under licence. The wording of the paragraph should therefore be simplified and should focus on licensing as a tool to distinguish between lawful and unlawful activities. The CHAIR invited comments on the new text suggested by the Chairperson of the Intergovernmental Negotiating Body. Mr ROWAN (European Community) said that the proposed new text could constitute a useful basis for discussion.
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Mr FISCH BERREDO MENEZES (Brazil) said that the proposed wording would be unacceptable to his delegation unless “equivalent approval” was replaced by “equivalent control system”. Brazil licensed only the tobacco industry and controlled other activities. A formula that included the words “where appropriate” would also be acceptable. Ms KIPTUI (Kenya), referring to the term “where appropriate”, said that care should be taken to ensure that Parties did not have too much freedom in selecting activities to be licensed. She emphasized the need for standardization to ensure that the Articles in Part III on supply chain control were properly implemented. Ms MADRAZO REYNOSO (Mexico) said that it would be preferable to replace the term “equivalent approval” with “equivalent control system”. Ms LECLAIRE (alternate to Mr Leguerrier, Canada) agreed that licensing was only one of a number of forms of control. Canada was prepared to support the text put forward by the Chairperson of the Intergovernmental Negotiating Body without change on the understanding that it related to licences for tobacco manufacture only, in which case other forms of control would have to be dealt with separately. Mr COULOMBE (alternate to Mr Leguerrier, Canada) said that the text might therefore read: “Manufacturing tobacco products can be carried out by any natural or legal person only if the person is in possession of a licence issued by a competent authority”. Mr ROWAN (European Community) suggested the following language: “The following activities can be carried out by any natural or legal person only if the person is in possession of a licence issued by the Party or subject to a control system in accordance with its national laws and regulations”. That wording would apply to subparagraphs (a) and (b) and the words “where appropriate” would be added as a caveat to the other subparagraphs. Mr GÖRÜN (Turkey) suggested that, in the text proposed by the previous speaker, the words “competent authority/ies of the” should be inserted after “licence issued by the”. Dr TSETSEGDARI (Mongolia) expressed support for the use of the wording “Each Party shall prohibit …”. Any reference to licensing would weaken the Article. Ms MADRAZO REYNOSO (Mexico) said that it could be inferred from the use of the word “only” in the text proposed by the European Community that persons not in possession of a licence would be prohibited from engaging in the activities concerned. The CHAIR said that, for the sake of legal certainty, it might be appropriate to add wording to the effect that the conduct of the activities concerned without a licence or equivalent approval or control system was prohibited. Dr ANIBUEZE (Nigeria) suggested that the text could be strengthened by negative emphasis, so as to provide that the activities could not be carried out by any natural or legal person unless the person was in possession of a licence.
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The CHAIR said that, if he saw no objection, he would take it that the Committee agreed to the following wording for paragraph 1: “The following activities cannot be carried out by any natural or legal person unless the person is in possession of a licence issued by the competent authority/ies of the Party or subject to a control system in accordance with its national laws and regulations”. It was so agreed. (For continuation of the discussion on Article 5, see summary record of the ninth meeting, section 1.)
The meeting rose at 18:10.
NINTH MEETING Saturday, 4 July 2009, at 10:25 Chair: Mr S. SHAKERIAN (Islamic Republic of Iran)
1.
DRAFTING AND NEGOTIATION OF A PROTOCOL ON ILLICIT TRADE IN TOBACCO PRODUCTS: Item 5 of the Agenda (Documents FCTC/COP/INB-IT/3/3, FCTC/COP/INB-IT/3/INF.DOC./1, FCTC/COP/INB-IT/3/INF.DOC./2, FCTC/COP/INBIT/3/INF.DOC./3, FCTC/COP/INB-IT/3/INF.DOC./5, FCTC/COP/INB-IT/3/INF.DOC./6 and FCTC/COP/INB-IT/3/INF.DOC./8) (continued)
Part III: Supply chain control (continued) The CHAIR said that the Secretariat had produced a consolidated paper on Part III, Supply Chain Control, containing Articles 5 to 11, as amended during the course of the Committee’s discussions. • Article 6: Customer identification and verification (continued from the eighth meeting) The CHAIR invited the European Community to report on the informal consultations with respect to Article 6. Mr Mc MICHAEL (European Community) said that Parties had met with a view to incorporating the introductory part of Article 6. They had not addressed the substance of the text. The main textual change based on the introductory part had been to delete the sentence, from paragraph 1 of the original text, which read: “to conduct due diligence with respect to any natural or legal person (“first purchaser”) with which they engage in a commercial transaction”, and incorporate reference to (“first purchaser”) into subparagraph 1(a) of the revised proposal. (Resumed below, following discussion of Article 11) • Article 11: Free-trade areas and duty-free sales (continued from the eighth meeting) The CHAIR invited India to report on the consultations on Article 11. Dr PRASAD (India) said that there had been broad consensus in the informal drafting group on the need for separate provisions on free zones and duty-free sales. However, the group had been unable to agree on wording concerning duty-free sales. Some Parties sought a provision allowing Parties to ban duty-free sales. Others considered that such a ban lay outside the scope of Article 15 of the Framework Convention since its Article 6 already provided for prohibition or restriction of dutyfree sales; those Parties were only willing to provide for effective measures that would prevent illicit trade in duty-free sales. The informal drafting group had nevertheless proposed a provision concerning free zones, which read:
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“Free Zones 1. Each Party shall, within three years of the entry into force of this Protocol for that Party, implement effective controls on all manufacturing and all trade in tobacco, tobacco products, manufacturing equipment used in the manufacture of tobacco products and raw material and inputs in the production of tobacco products, in free zones, by use of all relevant measures as provided in this Protocol, in particular, but not limited to, tracking and tracing, know your customer and anti-money laundering provisions. 2. In addition, the intermingling of tobacco products with any non-tobacco products on exports from free zones shall be prohibited.” The CHAIR invited comments on the proposed new text for Article 11 concerning free zones. Dr HELLER (Austria), speaking on behalf of the European Community, observed that square brackets were missing around the phrase “and raw material and inputs in the production of tobacco products,”. Mr MOHAMED (Maldives), emphasized the importance attached by Parties in the WHO South-East Asia Region to a ban on duty-free sales. He requested that the proposed new text on free zones be placed in square brackets until a consensus had been reached on the provision concerning duty-free sales. Dr TSETSEGDARI (Mongolia), also stressing the importance attached by some developing country Parties to a ban on duty-free sales, said that she would prefer to see the text on duty-free sales before agreeing to any provision concerning free zones. The CHAIR said that he would report to the Chairperson of the Intergovernmental Negotiating Body that some Parties wished to reserve their position on Article 11 pending formulation of the text on duty-free sales. Mr TORRES MARTIN (Colombia) said that square brackets should also be placed around “manufacturing equipment used in the manufacture of tobacco products”. With regard to the request by the representative of the Maldives, he recalled that the informal group had reached agreement regarding free zones only. In his view, free zones were sites of industrial production and distinct from duty-free sales which were commercial transactions. Mr MOHAMED (Maldives) said that it was the understanding of the Parties in the WHO SouthEast Asia Region that free zones could also be of a commercial nature. Mr PACE (Convention Secretariat) said that free zones and duty-free sales were two separate issues. Free zones could, however, be either commercial or industrial. The CHAIR, responding to a comment from Mr OOKA (Japan) regarding the meaning of the term “intermingling” in paragraph 2, said that a footnote should be inserted to the effect that the term would be defined in Article 1. Mr NJOKU (Nigeria) said that the text before the Committee was a consensus text from the informal group. He was therefore surprised that some Parties which had participated in the consultations had requested the inclusion of square brackets.
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The CHAIR observed that some Parties had consistently requested certain phrases to be placed in square brackets throughout the draft protocol, not only in Article 11. Following a request from Mr FITZGERALD (alternate to Ms Hefford, Australia) that paragraph 2 should be placed in square brackets pending the formulation of a definition of the term “intermingling”, the CHAIR said that Parties would be entitled to return to the Article at a later date if the definition was not acceptable to them. Mr FISCH BERREDO MENEZES (Brazil) said that the phrase “in particular, but not limited to, tracking and tracing, know your customer and anti-money laundering provisions” should be placed in square brackets since there were no provisions in the text relating to “know your customer” or to money laundering. Dr AYUB (Jordan) supported the proposed text of paragraph 1 but said that the Arabic version should be aligned with the English. Mr TORRES MARTIN (Colombia) said that goods entering free zones were not subject to customs duty and could be paid for with various currencies. The reference to “anti-money laundering provisions” had been included in order to remind Parties of the need to take steps to prevent money laundering in free zones. The CHAIR asked whether the Committee could agree to the deletion of “in particular, but not limited to, tracking and tracing, know your customer and anti-money laundering provisions”. Mr TORRES MARTIN (Colombia), Ms ROA RODRÍGUEZ (Panama) and Ms MATSAU (South Africa) said that they would not support deletion of the phrase. Mr ROWAN (European Community) proposed that, in the interests of consistency with the language used in the draft protocol, the phrase might be amended to read: “in particular, but not limited to, tracking and tracing, customer identification and verification, and security and preventive measures”. Mr FISCH BERREDO MENEZES (Brazil) endorsed that suggestion. The CHAIR took it that the Committee could accept the wording proposed by the European Community. It was so agreed. The CHAIR, responding to a comment from Ms MATSAU (South Africa) regarding the concerns about “intermingling”, recalled that some Parties wished to see the definition of the term before expressing their position on paragraph 2. Dr TSETSEGDARI (Mongolia) requested that the Committee continue its discussion of a text on duty-free sales. The CHAIR proposed that the informal working group should begin further discussions in regard to duty-free sales. It was so agreed.
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Ms ROA RODRÍGUEZ (Panama) said that Panama was unable at present to take a decision on the issue of duty-free sales. Mr LIYANAARACHCHI (Sri Lanka), speaking on behalf of the Parties in the WHO SouthEast Asia Region suggested that, in paragraph 2, the words “imports to and” should be inserted before “exports from free zones”. Dr ANIBUEZE (Nigeria), supported by Mr ROWAN (European Community), said that it would surely be possible to reach agreement on paragraphs 1 and 2, and give the Committee at least some results to show for the week’s work. Mr ROWAN (European Community) asked the representative of Sri Lanka to withdraw his amendment. Imports into a free zone were not the problem; the difficulty arose when tobacco products were exported from a free zone in the same container as other goods; that type of fraud cost around €25 million per week in lost revenue within the European Union. The CHAIR noted that the Committee had succeeded in clarifying the issues related to free zones, except for a few points such as duty-free sales and the status of manufacturing equipment. Dr AL-LAWATI (Oman) said that the inclusion of the word “imports” would usefully broaden the scope of the protocol. Imports into a free zone might represent an issue for Parties outside the European Union. The CHAIR, in response to a proposal by Mr FISCH BERREDO MENEZES (Brazil), took it that the Committee could accept deletion of the word “manufacturing” from the beginning of the phrase “manufacturing equipment used in the manufacture of tobacco products”; he further proposed the addition of the phrase “imports to and” in paragraph two. It was so agreed. The CHAIR, supported by Dr ANIBUEZE (Nigeria), suggested that the original text proposed by the Chairperson of the Intergovernmental Negotiating Body should be retained as well as any wording on duty-free sales proposed by the informal working group. The remaining options listed in the text before the Committee would then be deleted. He thanked the Committee for their understanding in keeping the text clear, and minimizing options and confusion for any new representatives attending the fourth session. It was so agreed. Mr ROWAN (European Community), responding to a request for clarification by the CHAIR, said that the term “intermingling”, meaning “mix with”, was used in preference to “concealment”; it referred to the transport of goods, quite openly at first, in the same shipping container. The bill of lading would be in order when the goods left the free zone but subsequently altered fraudulently. The tobacco products would be hidden behind the other goods to foil a visual inspection. He emphasized that those goods had not been “concealed” at the time of export. Dr LEWIS-FULLER (Jamaica) requested clarification as to what customs term was used generally for circumstances where individuals mixed items with intent to mislead; and asked specifically whether the term “intermingling” was usually applied in that context. Ms MENON (World Customs Organization), speaking at the invitation of the CHAIR, said that no standard customs term existed for the particular practice of “intermingling” as it had been described. In her view, provision of a definition or explanation in the protocol would suffice.
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Professor PRAKIT VATHESATOGKIT (Thailand), supported by Mr ROWAN (European Community) and Mr TORRES MARTIN (Colombia), suggested the following wording: “In addition, the mixing of tobacco products with any non-tobacco products in any container vehicle during transportation for import into or export from free zones shall be prohibited”. The CHAIR said that, in his personal opinion, that wording would be better placed in Article 1 as a definition of the term “intermingling”. Mr OOKA (Japan) said that the meaning of paragraph 2 had changed since it now referred to the mixing of tobacco products with other goods within a free zone rather than outside. Therefore, he would have to consult and he asked for the paragraph to be placed in square brackets in the draft. Mr ROWAN (European Community) emphasized that the original wording of the paragraph had been acceptable to Parties, except for the term “intermingling”. The extent of the proposal by Thailand opened up complexities that placed the achievement of consensus further away. He proposed that “intermingling” should be replaced by “mixing”, without any other changes. The CHAIR, supported by Dr ANIBUEZE (Nigeria), suggested that, to preserve the earlier consensus, the original wording of paragraph 2 should be maintained. The word “intermingling” would be asterisked to show that it was defined in Article 1. The proposal by the representative of Thailand would form a useful basis for that definition, although preparing it was not part of the Committee’s task. Professor PRAKIT VATHESATOGKIT (Thailand) said that his proposal made it clear that the mixing of tobacco and non-tobacco products took place during transportation. The CHAIR stated that paragraph 2 would be maintained in its original form. Parties could make their suggestions to the Chairperson of the Intergovernmental Negotiating Body on a definition of “intermingling” which would appear in Article 1. Mr ROWAN (European Community), while welcoming the CHAIR’s proposal, said that the proposal to prohibit mixing of tobacco products with any non-tobacco products “on exports from free zones” had been made because it was at the moment of export that the customs declaration would be made and it was at that point that intermingling should not take place. A reference to “transportation” might prevent a vessel from carrying thousands of containers even if only one of them held tobacco. The CHAIR, responding to a question from Mrs DEMUNI DE SILVA (Sri Lanka), said that the Committee had agreed to revert to the original wording in paragraph 2 and therefore it would not appear in square brackets. Japan could request that the term “intermingling” be placed in square brackets if it found the definition to be adopted in plenary to be unsatisfactory. • Article 6: Customer identification and verification (resumed) The CHAIR said that the informal drafting group had produced a new introductory part to Article 6 which allowed due diligence to be conducted either by the Party or by any natural or legal person. He invited representatives to consider the Article paragraph by paragraph, and in particular to reflect on how the introductory part would apply to each one. He asked whether the square brackets could be removed, from the introductory part. It was so agreed. Professor PRAKIT VATHESATOGKIT (Thailand) requested that the words “each Party shall require” be inserted before “any natural or legal person”.
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The CHAIR, responding to a comment by Mr FISCH BERREDO MENEZES (Brazil), suggested that if Thailand’s proposal was accepted the words “obligated by the Party” should be deleted. The CHAIR suggested that, as the introductory part had been accepted, the words “all natural and legal persons (“first purchaser”) engaged in:” could be deleted from subparagraph 1(a). The CHAIR, turning to subparagraph 1(a)(i), noted that the term “commercial quantities” remained to be defined and that the words “raw materials and inputs” would be discussed in another forum. In subparagraph 1(b) the words “raw materials or inputs in the production of tobacco, and key inputs” would be discussed in another forum. He noted that there were no other comments on those subparagraphs. Ms MATSAU (South Africa), said that the introductory part as originally drafted, had clearly required the Party or the natural or legal person to conduct due diligence. The new formulation was less clear. She would prefer to retain the original version that contained the word “obligated”. The CHAIR suggested that the editorial change proposed by Thailand should not be included in the introductory part and that the paragraph as originally formulated should be retained. Mr ROWAN (European Community) said that the points raised by Thailand and South Africa were very important: he would be in favour of retaining the proposal by Thailand in order to refer to “each Party” but they should be “obligated” rather than “required”. Turning to subparagraph 1(a), he saw no reason to delete the phrase referring to “all natural and legal persons” as due diligence was conducted on a person and not an activity. The CHAIR said that subparagraph 1(a) was still clear even with the deletion of the reference to “all natural and legal persons”. Ms TUCKER (European Community) explained that the original proposal from the informal group had included the phrase in subparagraph 1(a): “all natural and legal persons”. Due diligence must be conducted on a person, namely the first person in the supply chain and therefore the phrase must be included in order for the whole of subparagraphs 1(a)(i) and (ii) to make sense. Subparagraph 1(b) then made it clear that the first purchaser was required to carry out due diligence on subsequent purchasers throughout the supply chain. Turning to the introductory part, she said that in order to accommodate the proposal by Thailand and the remarks by South Africa, it should read: “each Party shall obligate any natural or legal person”. With those amendments, paragraph 1 would reflect the ideas of the informal working group. The CHAIR asked whether the Committee could accept the changes to the introductory part and paragraph 1(a) as read out by the European Community. It was so agreed. The CHAIR, turning to paragraph 2, asked whether the word “shall” could be deleted from the first line given that the obligation to conduct due diligence was conveyed by the word “shall” in the introductory part. Mr ROWAN (European Community) said that the European Community preferred to retain “shall” as it was stronger than “should”.
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The CHAIR said that “shall” would therefore be retained and “should” would remain in square brackets. He asked whether representatives could agree to remove the square brackets around “and updating, whenever there is a material change in circumstances”, and whether the words “but not limited to” could be deleted as they diluted the legal certainty of the text. Ms MATSAU (South Africa) asked why the phrase “but not limited to” would be removed. The CHAIR explained that, in the legal context, the elements of certainty and predictability were required and that deleting the words “but not limited to” in paragraph 2 would help to achieve that objective. Remarking that no proposals had been made in respect of subparagraph 2(a), he noted that there had been a proposal to delete subparagraphs 2(b) to (e) and a proposal to delete subparagraphs 2(b) to (g). Mr FISCH BERREDO MENEZES (Brazil) said that, since the word “shall” was to be maintained in the introductory part to paragraph 2, he was in favour of retaining subparagraphs 2(b) to (g). The CHAIR said that, in the absence of further comments, subparagraphs 2(b) to (g) would be maintained in square brackets. Mr BERTRAND (Canada), having conferred with a group of Parties, proposed an unnumbered introductory part that would apply to the whole of Article 6, reading: “Each Party, or any natural or legal person obligated by the Party shall, in accordance with its national laws or legally binding and enforceable agreements, conduct due diligence with regards to”. Subparagraph (a) would then be renumbered 1. The CHAIR asked whether the Committee wished to approve the new introductory part. It was so agreed. The CHAIR, reverting to paragraph 2, asked whether the word “shall” in the first line should be deleted and whether the square brackets should be removed from subparagraphs 2(b) to (g). Mr AL-LAWATI (Oman) said that he would prefer to retain the word “shall” in the first line of paragraph 2. The CHAIR explained that the introductory part, which applied to the whole of Article 6, began with “Each Party shall” and therefore there was no need to repeat the word “shall”. Mr AL-LAWATI (Oman) asked whether the Office of the Legal Counsel could confirm whether the “shall” in the introductory part at the beginning of Article 6 would also apply to subsequent paragraphs. The CHAIR said that the original paragraphs of Article 6 would all become subparagraphs under the new introductory part, which would apply equally to all of them. Dr LEWIS-FULLER (Jamaica) suggested that, as the introductory part would apply to all the subparagraphs of Article 6, the first line of the present paragraph 2 should be deleted; the new subparagraph could begin directly with a reference to customer identification.
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The CHAIR said that a compromise solution would be to retain the word “shall” in the introductory part and the word “should” in the first line of paragraph 2. To do otherwise would be to change the balance of representation of views in the room. Mr ROWAN (European Community) said that the wording formed part of a complex legal issue to which he would revert later in the day. The CHAIR said that he had attempted to resolve the differences through informal consultations and he had suggested that the introductory part should apply to all of Article 6 as a compromise solution. Work on the Article could be continued during the intersessional period and during the fourth session of the Intergovernmental Negotiating Body. Ms MATSAU (South Africa) said that she strongly supported the suggestion by Jamaica: having introduced a “shall” in the new introductory part, it would be contradictory to introduce the word “should” in subsequent subparagraphs. The CHAIR said that there was a thin line between the interpretation of “shall” and “should”, an obligation introduced by “shall” in the introductory part represented a compromise but left the manner of implementation to Parties, as set out in the subparagraphs. He agreed with the representative of the European Community that further time might be required to conclude the matter and he was open to views. Ms HEFFORD (Australia) said that she strongly supported the proposal by the CHAIR to refer the text of Article 6 to the intersessional group; in particular it should be ensured that the obligations associated with licensing in Article 5 were aligned with the obligations associated with due diligence in Article 6. • Articles 5 to 11 The CHAIR invited Parties to present their concluding comments on the progress made on Part III, Articles 5 to 11. Dr PRASAD (India), speaking as the Chair of the informal working group on duty-free sales, said that the group had been unable to reach unanimous agreement on a new draft text. Parties had been willing to put forward a text ensuring that duty-free outlets complied with the provisions of the protocol: and most Parties wanted an additional clause providing for measures that would prohibit or at least restrict any tax, regulatory or other advantages that applied to duty-free sales. The CHAIR said that he would report constructive discussions; that the scope of the free zones had been outlined; and that it had been agreed that the Article would be split in two with an Article 11bis that would concentrate on duty-free sales. The discussions on Part III had demonstrated that further time would be required to resolve the more complex questions that had arisen. He expressed appreciation for the work done in informal groups and for the support he had received from the Committee. The revised draft text, reflecting the proposals of Committee A on Part III: Supply chain control (Articles 5 to 11), would form part of his report to be forwarded to the plenary meeting for adoption. Dr TSETSEGDARI (Mongolia) reiterated that the formulation of paragraph 1 of Article 5 was not appropriate and she preferred the original Chairperson’s text: “each Party shall prohibit the conduct of any of the following activities by any legal or natural person, except pursuant to a licence or equivalent approval system granted by a competent national authority”.
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The CHAIR reminded the representative of Mongolia that a compromise text had been agreed for paragraph 1 of Article 5 but, if representatives so wished, the formulation by Mongolia could also be included in the text submitted to the plenary meeting. It was so agreed. Mr ROWAN (European Community) acknowledged that a Party had proposed an amendment to paragraph 5 of Article 9 but requested that the original Chairperson’s text should also be shown in the paper submitted to the plenary meeting. It was so agreed.
2.
CLOSURE OF THE SESSION
After the customary exchange of courtesies, the CHAIR declared closed the work of Committee A.
The meeting rose at 13:15.
COMMITTEE B FIRST MEETING Tuesday, 30 June 2009, at 10:25 Acting Chair: Ms J. BENICHOU (Convention Secretariat) Chair: Mr M. NAVARRETE (Chile)
1.
OPENING OF THE COMMITTEE: Item 1 of the Agenda The ACTING CHAIR declared open the first meeting of Committee B.
Election of officers The ACTING CHAIR announced that Mr M. Navarrete of Chile had been nominated as Chair of Committee B, and asked whether the Committee wished to approve the appointment of Mr Navarette. It was so decided. Mr Navarrete took the Chair. The CHAIR suggested that Mr O.O. Salagai of the Russian Federation and Mrs I. Demuni de Silva of Sri Lanka be elected as Vice-Chairs, and asked whether the Committee wished to approve the appointment of Mr Salagai and Mrs Demuni de Silva. It was so decided.
2.
DRAFTING AND NEGOTIATION OF A PROTOCOL ON ILLICIT TRADE IN TOBACCO PRODUCTS: Item 5 of the Agenda (Documents FCTC/COP/INB-IT/3/3, FCTC/COP/INB-IT/3/INF.DOC./1, FCTC/COP/INB-IT/3/INF.DOC./2, FCTC/COP/INBIT/3/INF.DOC./6 and FCTC/COP/INB-IT/3/INF.DOC./7)
Part IV: Offences and sanctions The CHAIR invited the Committee to consider in turn each of the Articles in Part IV of the revised Chairperson’s text for a protocol on illicit trade in tobacco products as set out in document FCTC/COP/INB-IT/3/3. The scope of the text should be wide enough to permit its application both in countries in which criminal law was derived from common law and in those using Roman law. Parties should concentrate on defining basic and universally applicable principles.
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• Article 12: Offences The CHAIR invited the Committee to comment on paragraph 1 relating to the definition of criminal offences associated with the illicit trade in tobacco products. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, said that the scope of paragraph 1 was too wide: as the text stood, any illicit trade would be subject to criminal prosecution, regardless of its gravity or the number of persons involved. He requested that paragraph 1 be limited to criminal conduct and he suggested the insertion of “and on a commercial scale” after “committed intentionally”. Mr HOSHINO (Japan) agreed that the scope of the provisions was indeed very wide and proposed that the paragraph should begin with the words “Each Party shall consider adopting appropriate legislation”, in order to allow Parties more discretion in implementing the paragraph. Alternatively, he could submit amendments to individual paragraphs. Mr PADILLA (Philippines) said that some of the offences described in paragraph 1 were administrative rather than criminal and therefore the word “criminal” should be replaced by “punishable”. The words “when committed intentionally” should be deleted both because they referred to a state of mind, a concept that was sometimes difficult to prove, and because retention of the phrase implied that acts committed negligently were excluded from the Article. Mr AHMADI (Islamic Republic of Iran) suggested that the phrase “in accordance with its constitutional process” should be inserted after “Each Party shall adopt”. The phrase “anywhere on its territory or in any other places under its jurisdiction as recognized under international law” should be added to the end of the first paragraph Mrs ROBINSON (Seychelles) said that Parties should be at liberty to decide whether offences related to illicit trade should be classified as offences of strict liability, as they were in her own country’s new tobacco legislation. The phrase “when committed intentionally” should, therefore, be deleted. Mr ALBUQUERQUE E SILVA (Brazil) said that, in the opinion of his Government, criminal law was invoked too freely in the current draft. Offences should be defined as criminal only in the most serious cases, in order to facilitate effective action by the State. An appropriate balance should be maintained between criminal penalties, and economic and administrative penalties; Canada had made a useful proposal in that regard at the presessional regional meetings. Consequently, it would be essential to include the amendment proposed by Japan. However, the phrase “when committed intentionally” should be retained, since intent was a fundamental aspect of illicit trade. Mr MOSSOP (alternate to Ms Hefford, Australia) said that, in order to maintain the desired flexibility, the conduct detailed in paragraphs 1 and 2 might be defined merely as an “offence”, rather than a criminal offence. Parties would then be at liberty to decide whether the conduct in question was classified as a criminal or an administrative offence. Mr BARRY (Guinea) suggested that after “under its domestic law”, the words “including in free zones” should be inserted. Dr RANGREJI (India), speaking on behalf of the Parties in the WHO South-East Asia Region, said that the current wording covered a very wide range of offences, some assuming criminal intent (mens rea) and others of an administrative nature. He would prefer a single set of core offences, combining those listed in paragraphs 1 and 2, with any other offences being left to Parties to prosecute as criminal, civil or administrative offences in accordance with their domestic law.
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Dr MORI (Japan) said that no wording referring to free zones should be included until a final version of Article 11 on free zones and duty-free sales had been agreed. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, said that paragraph 1 was intended to cover serious offences although its scope needed to be restricted. The adoption of a phrase such as “Parties should consider adopting” would provide too much flexibility, making it difficult for Parties to invoke subsequent articles, such as those on liability of legal persons and extradition of alleged offenders. The CHAIR, summing up, said that most representatives apparently wished to limit the number of offences specifically listed in the Article and to distinguish criminal from administrative offences. In his opinion, however, it was important to specify a certain number of serious offences, since otherwise every case could be decided solely according to a Party’s domestic law. Extradition, for example, was only possible if the conduct in question was a criminal offence under the law of both the States concerned. Dr TSETSEGDARI (Mongolia) said that the offences covered by the Article should be listed in a clear and detailed manner. She agreed with the deletion of the phrase “when committed intentionally”. Penalties should apply to an offence committed anywhere on the Party’s territory or within its jurisdiction. Mr PADILLA (Philippines) said that some of the offences listed, such as misdeclaring information on an official form in subparagraph 1(d) or conspiring to commit an offence in subparagraph 1(h), were not criminal offences in his country. If the reference to criminal offences was maintained, the Committee would have to examine each listed offence separately and specify which of them were criminal. Ms GONZÁLEZ (Bolivarian Republic of Venezuela) noted that, in her country, a deliberate failure to pay applicable duties on tobacco products was treated as a criminal offence, whereas a failure to pay due to negligence was treated as an administrative offence. The issue of intent was therefore crucial. Mr FALL (Senegal) said that the phrase “when committed intentionally” should be deleted. The offences listed in paragraph 1 were economic offences: the mere possession of illicit or counterfeit goods constituted an offence. The question of intent was not relevant and might even provide spurious grounds for a defence claim in court. As for the issue of criminal versus administrative offences, it was surely sufficient to indicate that an offence classified as a criminal offence by the Party concerned should be subject to criminal penalties. Mr SALAGAI (adviser to Mr Nebenzia, Russian Federation) said that the phrase “when committed intentionally” was superfluous, since the issue of intent would be covered by the domestic legislation adopted by the Party pursuant to the protocol. Dr ABASCAL (Uruguay) said that the current wording of the Article would oblige many Parties to amend their criminal codes, a particularly complex task in regard to offences punishable by imprisonment. Regarding the most serious offences, involving large criminal organizations, Parties could adopt the position of the Parties to the United Nations Convention against Transnational Organized Crime. The rest of the list, which included many offences of an administrative nature, should be simplified and clearly organized. He agreed with the proposal by the representative of Japan. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, said that if serious offences were listed in paragraph 1, the European Community would require the inclusion of
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the phrases “when committed intentionally” and “on a commercial scale”. Further discussion was needed to determine which offences should be listed in the Article. In paragraph 1, the inclusion of a reference to free zones was a concern: references might be added in individual paragraphs, where appropriate, provided that consistency with the final version of Article 11 was maintained. Mr DLAMINI (Swaziland) said that paragraph 1 was intended to ensure that those who participated in or facilitated illicit trade in tobacco products were held accountable for their actions; there was no need to reduce the scope of the offences listed, since the original text made it clear that they must also constitute offences under the law of the Party concerned. Furthermore, the offences listed were clearly offences of strict liability and the phrase “when committed intentionally” was therefore unnecessary. Ms JAQUEZ (Mexico) suggested that, for the time being, the Committee should concentrate on the more general concepts in paragraph 1. The offences listed in the subparagraphs would require much more debate, since not all of them were criminal offences under the laws of different Parties. Mr ZAITSEV (adviser to Mr Nebenzia, Russian Federation) said that, in order to shorten the text, in subparagraph 1(a) the offences relating to illicit transnational import, export or transfer of tobacco products could be subsumed under the general concept of “illicit foreign economic activities”. It would be difficult to use a term such as “smuggling”, which was defined differently in different countries. However, several basic concepts clearly constituted offences, including illicit transnational transfer of tobacco products, counterfeiting, and illicit national sales, although even those concepts might vary in definition between Parties. The CHAIR said that all Parties imposed administrative penalties for less serious offences, reserving criminal penalties as a last resort. It seemed desirable to list as many potential offences as possible. To facilitate later drafting work, he suggested that Parties should agree on the more serious offences, which should definitely incur a criminal penalty, and leave the rest subject either to administrative or to criminal penalties, depending on the legislation of the Party in question. Mrs ROBINSON (Seychelles) said that she could not accept the proposed insertion of the introductory wording, “Parties shall consider adopting” as the word “consider” weakened the meaning. Mr ALBUQUERQUE E SILVA (Brazil) suggested that the Convention Secretariat should, as soon as possible, draw up a list of serious crimes, based on the definitions in the United Nations Convention against Transnational Organized Crime. Parties could then state whether or not they accepted the list. The Framework Convention also specified the penalties for various criminal offences, direct reference to which might also be included in the protocol. Mr MOHAMEDOUN (Mali) said that wording such as “prohibit under domestic law” would give Parties the flexibility to apply either administrative or criminal penalties. He could not support the wording: “Parties should consider adopting” as it did not oblige Parties to take action. The CHAIR said that a special group might be designated to draw up a list of more serious offences, with the assistance of experts from the United Nations Office on Drugs and Crime. Under a second option, he suggested that the protocol could explicitly leave to the individual Parties the decisions on whether to categorize conduct as an offence and whether to classify an offence as criminal or administrative. Ms LEI Zhao (China) said that she preferred the Chair’s second option. Several of the offences listed in paragraph 1 were not fully covered under her country’s criminal law. She expressed support for the proposal by Australia to combine the first two paragraphs and to give Parties more flexibility.
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Mr MOSSOP (alternate to Ms Hefford, Australia), stating a preference for the second option, proposed an introductory sentence to the combined paragraphs 1 and 2: “Each Party shall adopt, as appropriate, legislative and other measures as may be necessary to establish the following conduct as unlawful under domestic law”. Appropriate language could be added to Article 14 on sanctions to ensure that serious offences were subject to penalties under criminal law. Mr ÖZBEK (Turkey) said that adoption of the Chair’s second option would lead to structural changes in the protocol: investigations and other measures referred to in subsequent articles of the protocol would be very difficult to implement except under criminal law. He therefore preferred the Chair’s first option, and also welcomed the proposal by the European Community to include the phrase “on a commercial scale”. Mr MOHAMEDOUN (Mali) said that the first two paragraphs should be combined; for the introductory part he suggested that “and penalize” be inserted between the phrases “to establish” and “the following conduct”. The phrase “when committed intentionally” should be deleted. Mr HOSHINO (Japan) said that he also preferred the Chair’s second option, which gave Parties greater discretion in deciding legal categories. However, unlike the representative of Australia, he preferred the wording “Parties shall consider adopting”. Mr PADILLA (Philippines), expressing a preference for the Chair’s proposed second option, said that he believed that many other Parties in the WHO Western Pacific Region were unified in that position. Mr FALL (Senegal) said that defining offences should not be left to the discretion of individual Parties. The protocol should state clearly that Parties were obliged to classify the types of conduct listed as criminal offences, and the phrase “when committed intentionally” should be deleted. Dr RANGREJI (India), speaking on behalf of the Parties in the WHO South-East Asia Region, supported the Chair’s second option, as expressed by the representative of Australia. Paragraphs 1 and 2 should be combined, but the wording “Parties should consider adopting” should not be used, since the force of the paragraph had already been weakened. Mr ALBUQUERQUE E SILVA (Brazil) and Mr SAINT-DENIS (alternate to Mr Leguerrier, Canada) said that they supported the proposal by Australia and the Chair’s proposal to establish a list of serious offences. Parties would be at liberty to decide on the penalty to be imposed. Wording such as “Parties should consider adopting” would not then be necessary. Ms JAQUEZ (Mexico) said that she supported the proposal by Australia; the same solution might be used elsewhere in the draft protocol. Mr FASHINA (Nigeria) supported the proposal by Australia. He considered that the wording “Parties shall consider adopting” would only weaken the text. Dr TOESSI (Benin) said that the question of the severity of offences was referred to in several places in the protocol and he was therefore in favour of appointing a group to draw up a list of serious offences, as that would help Parties to agree on the penalties to be imposed. Ms DU PREEZ (Namibia) said that she could not accept the wording, “Parties should consider adopting”. The protocol was a legal document and it should impose appropriate obligations on Parties particularly within the WHO African Region, since Africa was likely to be the location of significant illicit trade in tobacco products.
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Mr HOSHINO (Japan) said that he withdrew his proposal to introduce the words “Parties should consider adopting” and supported the proposal by Australia. Dr ABASCAL (Uruguay) said that he supported the proposal by Australia as it would simplify the process, provide greater flexibility and enable more Parties to accede to the protocol. The issue of serious offences would doubtless be addressed in later articles. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, said that provided that the scope of the Article was limited in accordance with the proposals he had already put forward, then the proposal by the Chair would be workable. The wording proposed by Australia was acceptable in principle, although the Parties he represented would need to discuss it before giving their formal agreement. Nevertheless, certain preconditions with regard to criminalization would need to be met: references to intent and to commercial scale must be maintained and due regard given to internationally agreed concepts concerning extradition as set out in Article 33. Mr YOMO (Congo) pointed out that all the offences listed in the Article were already included in the customs code of the Central African Economic and Monetary Community. His concern was whether another code would have to be drawn up for activities related to the protocol. The CHAIR said that where provisions in the protocol were already part of domestic law, a Party could maintain its legislation and would not be required to amend it. Mr ADAM (Israel), Ms MOODLEY (South Africa) and Mr DLAMINI (Swaziland) supported the wording proposed by Australia and agreed that paragraphs 1 and 2 should be combined. Mr SAMUDA (Panama) agreed that paragraphs 1 and 2 should be combined. Mr ÖZBEK (Turkey) said that the protocol must define some offences which all Parties recognized as criminal offences, or it would be impossible to implement the provisions relating to Part V: International cooperation. Ms GONZÁLEZ (Bolivarian Republic of Venezuela), referring to subparagraph 1(a), suggested the addition of the phrase “introducing or extracting” which implied an illegal act and was required if the conduct concerned was to constitute a criminal offence in her country. The terms “importing” and “exporting” implied that the relevant customs procedures had been correctly followed. Mr ALBUQUERQUE E SILVA (Brazil) said that he had several proposed amendments to Article 12, which he would submit at the next meeting. Mr HOSHINO (Japan) reiterated Japan’s overall view concerning the wide scope of the protocol and requested that all references to “manufacturing equipment used in the manufacture of tobacco products” be deleted from the Article. Mrs ADEYEMO (Nigeria) requested that the word “smuggling” should be added to the list of offences in subparagraph 1(a). The CHAIR said that the second of his two proposals and the proposal by Australia appeared to have found favour with the majority of Parties, although the European Community had asked for extra time for consultation. However, it was essential to draw up a minimum list of serious offences on which all Parties could agree, or the protocol would serve no useful function. He suggested that the Committee should return to Article 12 at the next meeting, when advice from an expert from the United Nations Office on Drugs and Crime would be available.
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It was so agreed. (For continuation of the discussion on Article 12, see summary record of the second meeting.) • Article 13: Liability of legal persons The CHAIR noted that in the legislation of some Parties, such as that of the Netherlands, it was accepted that legal persons or entities could bear criminal liability and be subject to penalties such as the confiscation of property, whereas in that of others, such as many Latin American States, it was not. It was a highly relevant topic, since many criminal organizations operated through legal persons. It was therefore essential for the protocol to ensure that civil, administrative or criminal penalties could be applied, up to and including the dissolution of the legal entity. Mr FALL (Senegal) asked why there was a discrepancy between Article 12, which referred only to criminal liability, and paragraph 2 of Article 13, which referred to criminal, civil or administrative liability. The CHAIR said that the liability of legal persons was a disputed issue; there had been several unsuccessful attempts in Chile to make legal persons bear criminal liability for their illicit acts. Accordingly, Article 13 had been made very flexible in order to ensure that legal persons would be held liable for illicit conduct in one way or another. Mr PADILLA (Philippines) said that his own country’s legislation used the term “juridical person” rather than “legal person”. He suggested that the three paragraphs of Article 13 should be replaced by one paragraph, reading: “Every person, natural or juridical, shall be made liable, in accordance with the gravity of the offence, as provided in Article 12”. Mr ALBUQUERQUE E SILVA (Brazil) said that the draft reproduced the language of Article 10 of the United Nations Convention against Transnational Organized Crime which, however, dealt only with criminal offences rather than administrative offences. It might be preferable to replace Article 13 with a reference to that Convention for reporting of all serious criminal offences. He asked for the entire Article to be placed in square brackets. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, said that he preferred the text as it stood as not all Parties to the Framework Convention were also party to the United Nations Convention against Transnational Organized Crime. Mr ZOUA (Cameroon) said that the right to health was a universal right, and penalties for actions which endangered health should be universal and should not discriminate between natural and legal persons. Mr DEMPSEY (alternate to Mr Leguerrier, Canada) said that he preferred the original version of the Article, except that the term “offences” in paragraph 1 should be replaced by “unlawful conduct”, so that it was consistent with the amendments to Article 12 proposed by Australia. Mr BURCI (WHO Legal Counsel), replying to a point raised by Dr RANGREJI (India), said that the phrase “subject to the legal principles of each Party” emphasized that legal persons should bear criminal, civil or administrative liability for illicit acts if the legal system of the Party concerned so provided. Mr BARRY (Guinea) said that paragraph 1 should state that legal persons should not bear criminal liability in the case of controlled delivery, when illicit consignments were allowed by law enforcement agencies to proceed in order to identify those responsible.
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Dr TOESSI (Benin) asked how the provisions on liability would apply to larger suppliers which colluded with small-scale tobacco vendors. The CHAIR said that it was important to distinguish the personal liability of employees of a company or other legal entity, who might be subject to a fine or imprisonment, from the criminal liability of the legal person. In the latter case, the legal person might be dissolved or its assets might be confiscated. Mr AL JEHANI (Saudi Arabia) endorsed the proposal by the European Community to maintain the text of Article 13 as it stood. The legislation of the Gulf Cooperation Council made no distinction between the acts of natural persons and those of legal persons. Mr PADILLA (Philippines) recalled that, under paragraph 3 of Article 2 of the protocol, Parties that were also party to the United Nations Convention against Transnational Organized Crime were obliged to apply all provisions of the latter which were relevant to illicit trade in tobacco products. It was therefore superfluous to repeat the provisions of the United Nations Convention against Transnational Organized Crime in Article 13 of the protocol. Mr YOMO (Congo), referring to the amendment relating to controlled delivery proposed by the representative of Guinea, noted that there was no provision for controlled delivery in his country’s legislation. As for the issue of collusion between large suppliers and individual vendors, the customs code of the Central African Economic and Monetary Community provided for various offences of collusion. The CHAIR, summing up, noted that most delegates wished to maintain the text of Article 13 as it was, although the comments made would be taken into account. • Article 14: Sanctions The CHAIR said that, once again, the issues covered in Article 14 were treated very differently in different countries. In some countries, long prison sentences were imposed for financial offences, whereas in others such offences were treated far more leniently. For that reason, paragraph 1 attempted to define a minimum prison sentence which all Parties could agree to impose. An agreed minimum penalty was also important for the purposes of extradition since, for many Parties, the penalty facing the alleged offender was a factor in deciding whether to permit extradition. Dr MOUSSA (Niger), speaking on behalf of the Parties in the WHO African Region, said that the penalty to be imposed under paragraph 1 of Article 14 must be left to the individual Party to decide. Mr SAMUDA (Panama) said that, in order to maintain consistency with Article 12, minimum criminal or administrative penalties should be laid down in a new paragraph 1, which would combine paragraphs 1 and 2. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community and supported by Ms LEI Zhao (China), Mr ADAM (Israel), Dr MORI (Japan), and Mr AL JEHANI (Saudi Arabia), noting that reference to “serious crime” appeared only in paragraph 1 of Article 14 and in the definition contained in paragraph 14 of Article 1, suggested that both paragraphs should be deleted. Mr ALBUQUERQUE E SILVA (Brazil), supported by Mr YOMO (Congo) and Dr MOUSSA (Niger), speaking on behalf of the Parties in the WHO African Region, said that the concept of “serious crime” should be included somewhere in the protocol and if it was deleted from Article 14, he would propose its inclusion elsewhere.
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Dr RANGREJI (India) said that a minimum penalty of four years’ imprisonment was very severe. In his own country, some extraditable offences carried a penalty of only one year’s imprisonment. He requested that paragraph 1 be placed in square brackets pending further discussion. Mrs ROBINSON (Seychelles) said that paragraph 1 should refer to offences punishable by deprivation of liberty but the reference to a minimum penalty of four years should be deleted. The concept of “serious crime” should not be defined, as it did not correspond to specific national definitions. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, suggested that the phrase “including monetary sanctions” at the end of paragraph 2 of Article 14 should be deleted. Dr MORI (Japan) said that the term “offence” in paragraph 2 should be replaced by “unlawful conduct” or “criminal conduct”. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community and supported by Dr MORI (Japan), suggested that paragraph 3 should be amended to read: “Each Party shall endeavour to ensure”. Mr ALBUQUERQUE E SILVA (Brazil), supported by Mr SAMUDA (Panama), said that many issues related to the scope of the protocol remained to be clarified. He emphasized that Brazil could not accept any wording imposing liability on natural persons, such as tobacco growers. Mr YOMO (Congo) asked to whom the sanctions would apply if natural persons were excluded. (For continuation of the discussion on Article 14, see summary record of the second meeting.)
The meeting rose at 13:00.
SECOND MEETING Tuesday, 30 June 2009, at 15:20 Chair: Mr M. NAVARRETE (Chile)
DRAFTING AND NEGOTIATION OF A PROTOCOL ON ILLICIT TRADE IN TOBACCO PRODUCTS: Item 5 of the Agenda (Documents FCTC/COP/INB-IT/3/3, FCTC/COP/INBIT/3/INF.DOC./1, FCTC/COP/INB-IT/3/INF.DOC./2, FCTC/COP/INB-IT/3/INF.DOC./6 and FCTC/COP/INB-IT/3/INF.DOC./7) (continued) Part IV: Offences and sanctions (continued) • Article 14: Sanctions (continued) Mr AL BAKER (United Arab Emirates), noting that paragraph 4 provided for a “lengthy” statute of limitations period in which to commence proceedings for any offence covered by the protocol, asked what length of time was intended? He also expressed concern at the reference to a “lengthier” period when the alleged offender had evaded the administration of justice. Very specific legal procedures applied in such cases, as well as in cases of “trial by association”, when an individual was prosecuted for acts committed by a criminal organization merely by virtue of belonging to that organization. Dr MOUSSA (Niger) proposed that in paragraph 4, the phrase “under its domestic law” should be deleted since the concept of domestic law was already mentioned earlier in that paragraph. He was supported by Mr FASHINA (Nigeria) in that proposal. Referring to paragraph 2, he requested that the phrase “including monetary sanctions” should be maintained. Mr MOHAMEDOUN (Mali) said that in his country’s legal system a penalty was specified for a particular offence. The offence of evading justice would therefore need to be defined and a penalty and a statute of limitations period assigned to it. The CHAIR agreed that the statute of limitations period should depend primarily on the type of offence, rather than on the fact that the alleged offender had evaded justice. • Article 12: Offences (continued from the first meeting) Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, said that he had consulted with his colleagues in the European Union, whose number now stood at 28 Parties, but they had not yet reached agreement on the proposal made by Australia at the previous meeting. It would be helpful if the proposed list of serious crimes could be made available as soon as possible. Dr ABASCAL (Uruguay) said that he had expected to receive a list of offences, both administrative and criminal, from the Convention Secretariat, which the Committee would use to decide whether a direct reference in the protocol to the provisions of the United Nations Convention against Transnational Organized Crime would be appropriate.
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Mr LONGOLOMOI (Kenya), recalling an earlier proposal that all references to equipment used for the manufacture of tobacco products should be removed from Article 12, said that developing countries experienced significant problems with obsolete manufacturing equipment dumped by developed countries because it could only be used to make tobacco products with high tar and nicotine levels. Mr YOMO (Congo) said that, given proposals to exclude tobacco growers, small retailers and manufacturing equipment from the scope of the protocol, he questioned what it was actually intended to cover. Moreover, it was unclear to him why Parties needed to adopt new legislation. The illicit conduct in question was surely already covered by existing legislation, particularly since every country belonged to a customs union, and prosecuting illicit conduct was therefore a matter for executive or administrative agencies. Dr ABASCAL (Uruguay) agreed with the representative of Kenya that manufacturing equipment should be included in the protocol. It would be pointless to reach a universally agreed text if it was so weak as to be ineffective. He emphasized the need for effective provisions relating to monitoring: new legislation adopted could not be brought into force without reliable information obtained from monitoring. Mr MOHAMEDOUN (Mali) said that he supported the inclusion of the phrase “under its domestic law”. He reiterated that under his country’s legal system a penalty was specified for a particular offence including administrative offences. Ms LEBAUX (United Nations Office on Drugs and Crime) said that the United Nations Convention against Transnational Organized Crime consisted of the Convention proper together with three protocols. As it was not feasible to list all possible instances of organized crime, the Convention defined four basic offences: participation in an organized criminal group; money-laundering; corruption; and obstruction of justice. Parties to the Convention undertook to establish those offences as criminal offences in their own legislation. The Convention defined the concept of “serious crime” as offences subject to a maximum deprivation of liberty of at least four years or a more serious penalty. In addition, an “organized criminal group”, also defined in the Convention, must be involved, and the offence must be transnational in nature. If those conditions were met, Parties could engage in international collaboration including extradition and mutual legal assistance. Replying to the points raised by Uruguay, she said that there were more than 150 Parties to the Convention. If the protocol defined serious offences in the same way as the Convention, particularly in respect of the basic criteria, namely the minimum penalty for the offence, transnational nature of the offence, and commission by an organized criminal group, then offences related to the protocol could be used to invoke the international collaboration measures provided for in the Convention. However, that effort would probably be justified only in the case of truly serious offences. Mr AL BAKER (United Arab Emirates) pointed out that an offence might carry a penalty of one to five years’ imprisonment. Consequently, in less serious cases, the offender would serve only a oneyear sentence, but it would still be classified as a “serious crime” under the criteria of the United Nations Convention against Transnational Organized Crime. Grading among offences should be established: for instance, falsifying or misdeclaring information in order to evade tobacco taxes was a relatively minor offence. Ms LEBAUX (United Nations Office on Drugs and Crime) said that the criterion was the maximum penalty for the offence concerned. An offence punishable by one to five years’ imprisonment would therefore be classified as a serious crime under the United Nations Convention against Transnational Organized Crime because the maximum penalty exceeded four years.
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Dr MUÑOZ PORRAS (Chile) suggested that, in the interests of expediting the work of the Committee, the Convention Secretariat should highlight those articles of the draft protocol which were taken directly from, or were very similar to, articles of the United Nations Convention against Transnational Organized Crime. Replying to a point raised by Mr SAINT-DENIS (alternate to Mr Leguerrier, Canada), Ms LEBAUX (United Nations Office on Drugs and Crime) confirmed that the United Nations Convention against Transnational Organized Crime did not specify particular offences which Parties should consider to be serious crimes; nor did it specify the penalty which should be attached to a particular offence. Parties were free to decide such matters for themselves. Mr BURCI (WHO Legal Counsel) said that the maximum penalty of four years specified in paragraph 1 of Article 14 was intended to fulfil one of the criteria of a serious crime defined in the United Nations Convention against Transnational Organized Crime. Provided that the other criteria – the transnational nature of the offence and the involvement of an organized criminal group – were also met, offences under the protocol could be handled through the mechanisms established in the Convention. Mr PADILLA (Philippines) asked whether all the offences listed in the various subparagraphs of Article 12 would really count as serious offences. Mrs DEMUNI DE SILVA (Sri Lanka) drew the Committee’s attention to document FCTC/COP/INB-IT/3/INF.DOC./2, in which the Chairperson of the Intergovernmental Negotiating Body explained the intended relationship between the protocol and the United Nations Convention against Transnational Organized Crime. Dr ABASCAL (Uruguay) noted that neither Article 12 nor Article 14 explicitly mentioned smuggling, which was surely the quintessential “serious offence”, transnational by its very nature and nearly always the work of organized criminal groups. The other offences listed in Article 12, such as counterfeiting, were not necessarily transnational in nature. A provision could be included in the protocol to suggest that Parties establish a minimum penalty of four years’ imprisonment for smuggling in order to meet all the criteria defined in the United Nations Convention against Transnational Organized Crime. Mr MOHAMEDOUN (Mali) said that most Parties were also party to the United Nations Convention against Transnational Organized Crime. The current provisions of Article 14 of the Protocol, which followed those of the Convention, were therefore automatically applicable for those Parties. The issue was more problematic for Parties which were not party to the Convention. The question, as he saw it, was the scope of the protocol itself rather than the relationship between the protocol and the Convention. Mr SAINT-DENIS (alternate to Mr Leguerrier, Canada) said that the Committee must decide whether the protocol needed to include provisions on international cooperation at all since most Parties were also party to the United Nations Convention against Transnational Organized Crime. However, the protocol should not provide for international cooperation in respect of offences less serious than those laid down in the Convention; Parties would otherwise be swamped with applications for mutual legal assistance or extradition related to relatively minor offences. Dr ABASCAL (Uruguay) noted that, according to the current version of paragraph 3 of Article 2 of the protocol, Parties to the United Nations Convention against Transnational Organized Crime were obliged to ensure the full application of the latter to illicit trade in tobacco products; and Parties not party to the Convention were asked to consider applying the relevant provisions of the
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Convention where appropriate. That appeared to cover the issue of serious offences adequately. Article 12 should concentrate on less serious criminal or administrative offences. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, said that the United Nations Convention against Transnational Organized Crime was indeed an extremely valuable instrument. However, many Parties already cooperated in matters of mutual legal assistance in respect of offences defined as less serious in the Convention. The European Community wanted to see more cooperation in legal matters under a strong and well-balanced protocol. The CHAIR said that the approach adopted by other legal instruments was to establish general criteria defining a serious offence, such as the associated penalty or the scale or transnational nature of the offence, so that there were at least a few serious offences on which Parties could agree. With regard to the point made by the representative of the European Community, it might indeed be useful to include provisions particularly relevant to illicit trade in tobacco products. Smuggling, generally recognized as a serious offence, was rife between Bolivia, Paraguay and a free zone in the north of his own country, Chile, but it also took place on a smaller scale within countries. He called upon representatives to suggest general criteria which might designate a serious offence. Mr SAMUDA (Panama) said that the United Nations Convention against Transnational Organized Crime should serve only as a guide. Illicit trade in tobacco products had its own unique features. The Committee needed to discuss the offences listed in Article 12 in detail in order to arrive at its own definition of serious offences for the purposes of international cooperation, jurisdiction and extradition, without duplicating work done in respect of other instruments. Dr MUÑOZ PORRAS (Chile) said that the Committee should draw up a list of offences, connected with illicit trade in tobacco products, and which would not be affected by a Party’s accession to any other legal instrument. It would include, for instance, criminal offences related to various types of tobacco products or raw materials. If an offence met the criteria required under the United Nations Convention against Transnational Organized Crime, it could be prosecuted under that instrument, but there was no need to make the protocol into another instrument for combating organized crime. Dr TOESSI (Benin) reiterated the suggestion that he had made at the first meeting, namely that a subcommittee should be formed to draw up a list of serious offences, which must be consistent with those defined in the United Nations Convention against Transnational Organized Crime. The CHAIR suggested that the proposed subcommittee should consist of five or six representatives with legal expertise. It should draw up a brief list of serious offences, with all other offences being classified according to the legislation of the Party concerned. Dr ABASCAL (Uruguay) said that the proposed subcommittee should bear in mind the particular characteristics of smuggling of tobacco products, compared with smuggling of other items such as clothing. The sale of tobacco products was legal, albeit regulated, but the danger to health associated with tobacco use meant that illicit trade in such products must be considered a serious offence. Mr LONGOLOMOI (Kenya) said that the protocol was an instrument intended to protect public health. Articles from the United Nations Convention against Transnational Organized Crime should not be added in preference to the tobacco-specific text prepared by the Chairperson of the Intergovernmental Negotiating Body. The list of offences in Article 12 should be preserved, not pruned.
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Ms JAQUEZ (Mexico) expressed concern that, if those representatives with legal expertise formed a subcommittee to discuss the list of offences, the quality of the debate in the main Committee might suffer. In addition, some Parties had only one member and could not attend both meetings. She felt therefore that the whole Committee should draw up the list of offences. The CHAIR said that a subcommittee might make faster progress on what was essentially a procedural issue. However, it might be preferable for the whole Committee to discuss the proposed list of offences for the sake of greater transparency. In his own opinion, the offences listed in subparagraph 1(a) should be defined as serious offences, particularly that of illicitly importing or exporting tobacco products, which implied large-scale transnational activity. Ms GONZÁLEZ (Bolivarian Republic of Venezuela) said that, in her country, the phrase “importing or exporting” implied that the relevant customs procedures had, in fact, been observed. There might have been a failure to pay tax, or the correct tax, but those were administrative rather than criminal offences. She therefore proposed the addition of the phrase “bringing in or taking out”, which implied that the relevant taxes had not been paid and constituted a criminal offence. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, agreed that the offences listed in subparagraph 1(a) would constitute serious offences if committed intentionally and on a commercial scale. The term “serious offence” should be used in preference to “serious crime”, since the latter term appeared with a different definition in the United Nations Convention against Transnational Organized Crime. Mr PADILLA (Philippines) noted that subparagraph 1(a) referred to offences committed without an appropriate licence or payment of applicable taxes. In his opinion, the mere absence of a licence or failure to pay tax did not constitute a serious offence. Dr ABASCAL (Uruguay), noting that the term “smuggling” was not explicitly mentioned in subparagraph 1(a), asked whether it actually constituted a serious offence and whether there was a legal definition of smuggling. It was confusing to speak of licences or taxes in the context of smuggling since, in common parlance, smuggling implied that no licence had been obtained or tax paid. The CHAIR said that the term “smuggling” was used in the traditional sense, in which goods entered or left a country illegally, but also in the sense of goods brought into a country without payment of the appropriate taxes. In his opinion, it was unnecessary to define the term in the protocol since it was doubtless already defined in the customs legislation of the Party concerned. Ms JAQUEZ (Mexico) suggested that the term “smuggling” should be placed in square brackets. Failure to obtain a licence or pay the appropriate taxes was an administrative and not a criminal offence in many countries, including her own; however, the remaining offences listed did constitute serious offences. Dr MORI (Japan) said that, in his country’s legislation, illicit transport, distribution, storage and shipping of tobacco products did not constitute serious offences. Mr DEMPSEY (alternate to Mr Leguerrier, Canada) asked whether the consensus within the Committee was to accept the definition of a “serious crime” laid down in the United Nations Convention against Transnational Organized Crime, in which case the term “crime” could be used rather than “offence”. Moreover, at the previous meeting, the Committee had appeared to favour the proposal by the representative of Australia that it should be left to the individual Party to decide whether the offences listed in Article 12 should be penalized as criminal or administrative offences. If that proposal was adopted, there was no need to discuss the list further.
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The CHAIR said that, although many Parties had indeed supported the proposal by the representative of Australia, others had pointed out the need for a minimum list of serious offences on which all Parties were agreed, in order to provide a basic framework for international cooperation in matters such as extradition. As he understood it, therefore, the Committee wished to define a brief list of agreed serious offences and leave the matter of administrative offences to the Party concerned. As to the definition of a “serious offence”, it seemed important to use the four-year penalty laid down in the United Nations Convention against Transnational Organized Crime and also to take into account the transnational nature or commercial scale of the offence. Mr AL JEHANI (Saudi Arabia) said that the phrase “illicitly bringing in or taking out” should be used in preference to “import or export”, the former indicating that the appropriate taxes had not been paid or that proper records had not been kept. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, said that, if the Committee wished to apply the criteria of a serious crime laid down in the United Nations Convention against Transnational Organized Crime, there was no need for further discussion of the matter of penalties. The European Community also considered the transnational nature and commercial scale of the offence to be important criteria. Dr ABASCAL (Uruguay) said that the protocol should explicitly define serious offences in the same way as the United Nations Convention against Transnational Organized Crime. He foresaw a problem with using the penalty attached to an offence as a criterion of its seriousness, since the penalty would surely depend on the scale of the illicit conduct, particularly in the case of smuggling or counterfeiting. For instance, no one would describe the illicit transfer of a single carton of cigarettes as a serious offence. The Committee should adopt the proposal by Australia; decide on a classification of the offences listed in Article 12; adopt the definition of a serious offence used in the Convention; and determine the scale on which an offence must occur in order to be considered a serious offence. Ms FIGUEROA (Chile) said that it had originally been proposed that the protocol should make a direct reference to the provisions of the United Nations Convention against Transnational Organized Crime. Instead, however, the Committee had decided to go through the list of offences in Article 12 and decide in each case whether the offence should constitute an offence under the protocol. Since the protocol was designed specifically to address illicit trade in tobacco products, not illicit trade in general, the scale of the offence might well be a valid criterion. The Committee should therefore define the specific features of illicit trade in tobacco products, which could then be taken into consideration in the domestic legislation of individual Parties. The provisions of Article 12 should define a minimum list of offences that were subject to a criminal penalty, and also take into account the aspect of intent, which was definitely significant under the law of most Latin American Parties. Mr YOMO (Congo) said that, under his country’s legislation at least, the simple term “smuggling” covered many of the offences listed in subparagraph 1(a). Some of the terms used later in the Article, such as “markings” and “counterfeiting packaging”, had no meaning in his country’s legislation, and “levies” were included in customs duties. Mrs ADEYEMO (Nigeria) said that the terms “importing and exporting” and “smuggling” were relevant to her country’s situation and should be retained. Mr FALL (Senegal) said that the term “smuggling” was inappropriate. Smuggling, in the sense of evading the relevant customs procedures, was an offence whether the goods in question were in themselves legal or illegal. The term “importing or exporting” should be retained. Mr MOHAMEDOUN (Mali) said that Article 12 dealt mainly with fraud offences, including non-payment of taxes, unlicensed sales, counterfeiting and avoidance of inspections, which were
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already provided for in domestic legislation. There might be aggravating factors, such as repetition of the offence or its scale or seriousness, which might lead to consideration of the offence as serious crimes under the United Nations Convention against Transnational Organized Crime. It must surely be possible for Parties to agree on an appropriate classification of the offences and the appropriate penalties. Mr ZOUA (Cameroon) said that the Committee’s primary task was to decide whether the types of conduct listed were illicit. The CHAIR, noting that the concept of illicit trade was defined in paragraph 8 of Article 1 of the current draft of the protocol, described it as a fundamental concept which the Committee should bear in mind when considering the list of offences. Many Parties appeared to support the proposal by the representative of Australia that Article 12 should provide general guidelines which Parties would use to interpret their own legislation. It was important to establish the fundamental criteria which distinguished a serious offence, such as the penalty attached to it, the commercial scale or transnational nature of the offence or the involvement of an organized criminal group. The Committee could then decide which of the offences listed should be classified as serious offences with a commonly agreed penalty, and which could be dealt with under Parties’ domestic legislation. He called upon the Committee to concentrate on those fundamental criteria rather than on the details of their own country’s legislation. Dr ABASCAL (Uruguay), supported by Mr MOHAMEDOUN (Mali), said that the introductory paragraph proposed by the representative of Australia should be followed by a list of possible offences. The definition of a “serious crime” laid down in the United Nations Convention against Transnational Organized Crime should be used, with particular emphasis on the penalty incurred by the offence. Illicit trade in tobacco products was unlike illicit trade in other commodities: although the goods involved were sold legally by long-standing custom, the hazard they posed to human health meant that any illicit trade should be considered a serious offence and be punishable by at least four years’ imprisonment. Dr MUÑOZ PORRAS (Chile) supported the proposal by the representative of Uruguay. The criteria laid down in the United Nations Convention against Transnational Organized Crime should be used in order to avoid anomalies such as higher penalties for illicit trade in tobacco products than for illicit trade in other products covered by the Convention. Ms HEFFORD (Australia), supported by Mr ALBUQUERQUE E SILVA (Brazil) and Mr PADILLA (Philippines), suggested that the introductory paragraph proposed by her Party should be followed by a list of the types of conduct deemed undesirable. Paragraph 1 would then read: “Each Party shall ensure that the most serious instances of the unlawful conduct set out in Article 12, when committed intentionally and on a commercial scale, are considered as serious crime“. In response to a question from Dr ABASCAL (Uruguay), Ms LEBAUX (United Nations Office on Drugs and Crime) said that the primary criterion of a serious crime under the United Nations Convention against Transnational Organized Crime was the four-year penalty: the transnational nature of the offence and the involvement of an organized criminal group were subsidiary criteria. The term “serious offence” was preferable to “serious crime”, since the latter might imply that the mechanisms established by the Convention would be automatically triggered, which was not necessarily the case. It was important to define the relationship between the protocol and the Convention at some point in order to ensure that the provisions of the former were no less stringent than those of the latter. However, in her opinion, that was a matter separate from the listing of serious offences.
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Mr DEMPSEY (alternate to Mr Leguerrier, Canada) expressed support for the proposal by the representative of Australia but suggested that the final phrase, “serious crime”, should be replaced by “serious offences”. The CHAIR, summing up, said that the Committee appeared to support the latest proposal by Australia and the suggestion that it should decide on the main criteria defining a serious offence. He suggested that the Committee should resume its consideration of Article 12 later. It was so agreed. (For continuation of the discussion on Article 12, see summary record of the fifth meeting.) • Article 15: Search of premises and seizure of evidence Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, suggested inserting the word “suspected” before “commission of an offence”. Mrs ROBINSON (Seychelles), supported by Dr MOUSSA (Niger), speaking on behalf of the Parties in the WHO African Region, suggested that “administrative and other measures” should be replaced by “administrative or other measures”. Mr MOHAMEDOUN (Mali) suggested that the phrase “including tobacco” in the third line of the Article should be deleted. Mr SAINT-DENIS (alternate to Mr Leguerrier, Canada) said that the proposed insertion of wording “suspected” before “commission of an offence” was inexact since, presumably, the fact that an offence had been committed was not in dispute. Mr PADILLA (Philippines) said that, under his country’s legislation, the police could apply for a search warrant even if an offence had not yet been committed. Mrs DEMUNI DE SILVA (Sri Lanka) suggested the wording: “for the purpose of ascertaining whether an offence has been or is being committed”. Mr FASHINA (Nigeria) supported the proposal by the representative of Mali and suggested that the phrase “national law” should be replaced by “domestic law”. Dr ABASCAL (Uruguay) suggested that it should be stated clearly earlier in the protocol that premises, confiscated goods, and so on, could be inspected. The CHAIR, summing up, said that the Committee appeared to accept the text of Article 15, with the proposed amendments. It was so agreed.
The meeting rose at 18:00.
THIRD MEETING Wednesday, 1 July 2009, at 10:40 Chair: Mr M. NAVARRETE (Chile)
DRAFTING AND NEGOTIATION OF A PROTOCOL ON ILLICIT TRADE IN TOBACCO PRODUCTS: Item 5 of the Agenda (Documents FCTC/COP/INB-IT/3/3, FCTC/COP/INBIT/3/INF.DOC./1, FCTC/COP/INB-IT/3/INF.DOC./2, FCTC/COP/INB-IT/3/INF.DOC./6 and FCTC/COP/INB-IT/3/INF.DOC./7) (continued) Part IV: Offences and sanctions (continued) • Article 16: Confiscation and seizure of assets Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, observed that paragraph 1 would need to be revised when the Committee decided on the final wording of Articles 12 and 14. Responding to a suggestion by Dr RANGREJI (India), he noted that the United Nations Convention against Transnational Organized Crime used the phrase “to the greatest extent possible” rather than “to the widest extent possible”. Mrs ADEYEMO (Nigeria) suggested that paragraph 1 should begin: “Parties shall adopt the strongest measures within their domestic legal systems as may be necessary to enable confiscation of”. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, suggested that in paragraph 3, the phrase “or to another person who has knowledge or ought reasonably to have known of the commission of offences covered by this Protocol”, be deleted in order to maintain consistency with paragraph 3 of Article 12 of the United Nations Convention against Transnational Organized Crime. Mr DEMPSEY (alternate to Mr Leguerrier, Canada) said that it was undesirable to depart from the wording of the United Nations Convention against Transnational Organized Crime, which had proved a valuable instrument over the years. Since Parties appeared to prefer a simple list of unlawful offences, he suggested that Article 16 should be deleted altogether and that Parties should apply the relevant provisions of the Convention. Mr ALBUQUERQUE E SILVA (Brazil) supported the proposal by the representative of Canada. While his Government had agreed to the reproduction of relevant provisions of the United Nations Convention against Transnational Organized Crime in the draft protocol on the strict condition that the latter should be quoted exactly, some Parties were trying to change the wording taken from the Convention. He would have to take any such proposals back to his Government for further consideration. Mr MOSSOP (alternate to Ms Hefford, Australia), Mr HOSHINO (Japan) and Miss TANYARAT MUNGKALARUNGSI (Thailand) supported the proposal by the representative of Canada. - 127 -
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Dr ABASCAL (Uruguay) said that, although he agreed that it was advisable to adhere to the provisions of the United Nations Convention against Transnational Organized Crime, some reference must be made in the protocol to the proceeds of illicit trade. Dr MUÑOZ PORRAS (Chile) asked how many Parties to the WHO Framework Convention on Tobacco Control were also party to the United Nations Convention against Transnational Organized Crime. Those States which were not party to both instruments would be unable to take advantage of the mechanisms of the latter Convention. He considered that the protocol, as a public health instrument, should not include detailed provisions related to taxation or law enforcement. Mr BURCI (WHO Legal Counsel) said that approximately 20 Parties to the Framework Convention were not Parties to the United Nations Convention against Transnational Organized Crime. Some States of course were not party to either instrument. Mr HODO (Ghana), speaking on behalf of the Parties in the WHO African Region, opposed the deletion of Article 16. The protocol was based on a preventive approach: the Article would act as a strong deterrent to persons engaging in illicit trade in tobacco products and reinforce the compliance and enforcement aspects of the protocol. Replying to a question from Mrs WONG Mee Ling (Malaysia), Mr BURCI (WHO Legal Counsel) said that, if the protocol made reference to obligations under the United Nations Convention against Transnational Organized Crime, only those Parties that were also party to that Convention would be obliged to fulfil those obligations. Parties might, of course, be subject to obligations arising from other international instruments relevant to confiscation and seizure. Mr DEMPSEY (alternate to Mr Leguerrier, Canada), supported by Dr ABASCAL (Uruguay), pointed out that Parties were already bound by subparagraph 4(e) of Article 15 of the Framework Convention, which read: “adopt measures as appropriate to enable the confiscation of proceeds derived from the illicit trade in tobacco products”. Dr TOESSI (Benin), speaking on behalf of the Parties in the WHO African Region, said that Article 16 should be maintained. Its provisions would give Parties which were not also party to the United Nations Convention against Transnational Organized Crime the legal basis they required for action. The protocol on illicit trade was the most appropriate place for provisions on confiscation and seizure. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, said that, if representatives were discussing whether to reproduce the exact wording of the United Nations Convention against Transnational Organized Crime, they should note that the wording of that Convention was reproduced in both Article 16 and several other articles of the protocol. He called on representatives to make only general comments and not seek far-reaching changes, such as the deletion of an entire article, until the wording of Articles 12 and 14 had been decided. Dr MUÑOZ PORRAS (Chile) said that he supported the deletion of Article 16 since his country was also party to the United Nations Convention against Transnational Organized Crime. However, the protocol would then be of less value to Parties which were not party to the Convention. He questioned whether it would be legally acceptable to call upon Parties which had not already done so to accede to the Convention. If not, then Article 16 must be kept as it stood in order to maintain consistency with the provisions of the Convention relating to other forms of organized crime. Mr DLAMINI (Swaziland) supported the wording for paragraph 1 as proposed by the representative of Nigeria. He opposed the deletion of Article 16 since that would leave those Parties which were not also party to the United Nations Convention against Transnational Organized Crime in
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a difficult position. African Parties, in particular, were likely to suffer the most from illicit trade in tobacco products. Dr ABASCAL (Uruguay) said that he had no objection to Article 16 in its current form, but it seemed inappropriate to take the wording of another legal instrument and then change it. He suggested the following new version of paragraph 1: “Parties shall adopt measures as appropriate to enable the confiscation of proceeds derived from the illicit trade in tobacco products (paragraph 4(e) of Article 15 of the WHO Framework Convention on Tobacco Control)”. The Article should further encourage Parties to act in accordance with Article 12 of the United Nations Convention against Transnational Organized Crime, which was almost identical to the original version of Article 16. Ms LEBAUX (United Nations Office on Drugs and Crime) said that it was advisable for the protocol to be brought into line with the provisions of the United Nations Convention against Transnational Organized Crime, avoiding differences in wording unless the new wording constituted an improvement. However, as she understood it, some representatives wished to delete any wording which duplicated the provisions of the Convention. In that case, those Parties that chose to accede to the protocol but were not also party to the Convention would not be bound by the protocol’s provisions on, for example, confiscation and seizure or mutual legal assistance. Moreover, Parties seeking to address illicit trade in tobacco products would turn first to the protocol, but would find there only references to the Convention, not the actual provisions themselves. Parties to the protocol could not be obliged to accede to the Convention. The protocol was a public health instrument, but illicit trade in tobacco products involved organized crime, which had to be combated by means of international judicial cooperation. The Convention itself had some humanitarian aspects, such as the human rights issues dealt with in the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, which was directly subordinated to the legal regime of the Convention. The CHAIR suggested that the wording of Article 16 should follow that of the United Nations Convention against Transnational Organized Crime as closely as possible, to prevent potential problems for those Parties which were also party to the Convention. The text might then suggest that Parties that were not also party to the Convention should adhere to the latter’s provisions in respect of confiscation and seizure. Dr ABASCAL (Uruguay) said that the original version of Article 16 covered several aspects that some countries would find difficult to accept. In his view, the best way of achieving an effective and viable protocol would be for as many Parties as possible to accede to the United Nations Convention against Transnational Organized Crime. Mr ÖZBEK (Turkey) observed that, if the protocol made a direct reference to Article 12 of the United Nations Convention against Transnational Organized Crime, Parties would be obliged to fulfil the provisions of that Article but not the rest of the Convention. Mr LONGOLOMOI (Kenya), speaking on behalf of the Parties in the WHO African Region, said that the protocol must be as complete as possible. There was no reason to delete Article 16 since it covered the gap which would otherwise exist for Parties that were not also party to the United Nations Convention against Transnational Organized Crime. The provisions of Article 15 were not an adequate substitute. Mrs ROBINSON (Seychelles) said that Article 16 should be retained in its original wording. The situation of Parties that were not also party to the United Nations Convention against Transnational Organized Crime posed a major problem, and the incorporation of the Convention into domestic law was also an issue. She did not understand why some Parties wanted the Article deleted altogether.
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Mr AL-JAHDAMI (Oman) said that Article 16 should be retained; he was nevertheless willing to consider the amendment proposed by Uruguay. Mr AL JEHANI (Saudi Arabia) said that the deletion of Article 16 would make the protocol more difficult to implement for all Parties, including those that were also party to the United Nations Convention against Transnational Organized Crime. The Article must, however, be consistent with the relevant provisions of the Convention. Dr RANGREJI (India) said that he failed to see how an adequate protocol could be drawn up without specific provisions on confiscation and seizure. If Article 16 was replaced by a direct reference to the United Nations Convention against Transnational Organized Crime, only the Parties to the latter would be bound by it. He suggested that the title of the Article should be changed to “Seizure and confiscation”, leaving out “assets”. Mr HOSHINO (Japan) supported the proposal to delete Article 16 altogether. His country was not party to the United Nations Convention against Transnational Organized Crime but could accept a reference to subparagraph 4(e) of Article 15 of the Framework Convention. Dr ABASCAL (Uruguay) said that he did not wish Article 16 to be deleted altogether. He had suggested an alternative wording which seemed more practical than reproducing the entire Article 12 of the United Nations Convention against Transnational Organized Crime, with its nine subparagraphs. If the Committee opted for deletion, however, he would not object. Mr MOHAMEDOUN (Mali) supported the position of the Parties in the WHO African Region that Article 16 should be retained. Reproducing the provisions of the United Nations Convention against Transnational Organized Crime, either by adding a reference to the relevant article or by quoting the text directly, would not solve the problem because the Convention was intended to address more serious offences. Those provisions of the Convention which were applicable to illicit trade in tobacco products could be reproduced, with appropriate amendments such as replacing “proceeds of crime” with “proceeds of an offence”, since not all the offences listed in the protocol were criminal offences. Ms LEI Zhao (China) supported the deletion of Article 16. Since most Parties were also party to the United Nations Convention against Transnational Organized Crime, there was no need to repeat that instrument’s provisions. She asked the Legal Counsel to suggest how best to oblige Parties to respect the Convention. Dr TOESSI (Benin) said that the protocol was intended to establish more detailed provisions relating to illicit trade in tobacco products, expanding on Article 15 of the Framework Convention. Since it was desirable for the protocol to be consistent with other international instruments wherever possible, he saw no reason why Article 12 of the United Nations Convention against Transnational Organized Crime should not be reproduced in the protocol. Those Parties which were also party to that Convention would be obliged to abide by its provisions anyway, and those that were not would have a useful legal basis for decisions about their own course of action. Mr BURCI (WHO Legal Counsel) said that the protocol could not oblige Parties which were not also Parties to the United Nations Convention against Transnational Organized Crime to implement the latter’s provisions. However, Parties were obliged to implement paragraph 4(e) of Article 15 of the Framework Convention, which dealt with the confiscation of the proceeds of illicit trade in tobacco products. It was for the Parties to decide whether that provision was sufficient. It was common for one international instrument to refer directly to a specific article of another, although usually the two were closely linked, such as the United Nations Convention against Transnational Organized Crime and its protocols. It was less simple to include a direct reference to an
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unrelated instrument, as would be the case if the protocol referred directly to articles of the Convention. Mr KLEYNHANS (South Africa) said that Article 16 should be retained because of the difficulties that its deletion would pose for Parties that were not also party to the United Nations Convention against Transnational Organized Crime. Other articles of the protocol also reproduced the wording of the Convention, and it would not be feasible to delete all of those. Dr MUÑOZ PORRAS (Chile), supporting the insertion of text proposed by the representative of Uruguay that ended with “WHO Framework Convention on Tobacco Control”, suggested that it be followed by a new paragraph reading: “The United Nations Convention against Transnational Organized Crime provides its Member countries with effective measures for confiscation and seizure of assets covered by this Protocol. The Parties encourage countries that are not Members of the United Nations Convention against Transnational Organized Crime to act in accordance with Article 12 of that Convention.” The CHAIR said that it did not seem justifiable to delete an entire article unless all representatives agreed, which was not the case. In his own experience, it became very confusing if one legal instrument referred to another one which in turn referred to another, and so on. It was essential to find a solution suitable both for those Parties that had acceded to the United Nations Convention against Transnational Organized Crime and for those that had not, and which did not leave some Parties in a more difficult position than others. Mr SAINT-DENIS (alternate to Mr Leguerrier, Canada), supported by Mr GRÖNLUND (Sweden) speaking on behalf of the European Community, said that, if Article 16 was to be retained, it would save time if Parties agreed to remove any wording not identical to that of Article 12 of the United Nations Convention against Transnational Organized Crime. Mr HOSHINO (Japan) said that, since some of the types of conduct listed in Article 16 were not criminal, or even administrative, offences in his country, he could not accept the use of the wording of Article 12 of the United Nations Convention against Transnational Organized Crime unchanged. Mrs ADEYEMO (Nigeria) said that the phrase “to the greatest extent possible” in paragraph 1 meant that Parties were not actually obliged to impose any penalty at all, thereby greatly reducing the deterrent effect of the Article. For instance, drug dealers were beginning to move into the illicit trade in tobacco products because the penalties they risked were less clearly defined. She asked the WHO Legal Counsel to clarify whether the protocol could amend the wording of the United Nations Convention against Transnational Organized Crime in order to strengthen its provisions. Dr WIDAD YOUSIF (Sudan) said that Article 16 should be retained, but that the proposal by the representative of Canada, to reproduce the wording of Article 12 of the United Nations Convention against Transnational Organized Crime, would save considerable debate. Since every Party had a unique situation and unique legislation, the protocol must be flexible enough to be universally applicable. Mr MOHAMEDOUN (Mali) said that the protocol addressed offences which were not necessarily as serious as those covered by the United Nations Convention against Transnational Organized Crime. As the text stood, assets might be seized even in respect of a relatively minor offence. Mr HOSHINO (Japan) said that, in the light of the debate, he was willing to accept the reproduction of provisions of the United Nations Convention against Transnational Organized Crime where relevant.
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Mr YOMO (Congo), supported by Dr MOUSSA (Niger), said that it was not necessarily advisable to reproduce passages verbatim from another legal instrument. For instance, paragraph 3 referred to “proceeds of crime”, which implied that confiscation could only take place when the offence in question was a criminal one. “Proceeds of illicit trade” would be more appropriate. Mr SAINT-DENIS (alternate to Mr Leguerrier, Canada) recalled that the exact group of offences to which Article 16 would apply had not yet been decided. Further amendments to the wording would be necessary following that decision. The CHAIR, summing up, said that most representatives appeared to support the proposal by Canada that the wording of Article 12 of the United Nations Convention against Transnational Organized Crime should be used, with appropriate amendments that would be decided when the concept of an “offence” had been further clarified. It was so agreed. • Article 17: Seizure payments Mr HOSHINO (Japan) proposed that the entire Article should be deleted. Under his country’s legislation, penalties such as the “amount equivalent to lost taxes and duties” mentioned in the Article could not be imposed if the offence in question had not been committed intentionally. Dr TOESSI (Benin), speaking on behalf of the Parties in the WHO African Region, expressed support for the Article, but proposed that the word “genuine” should be deleted from the phrase “genuine tobacco products”. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, proposed that the following phrase should be added at the end of the Article: “if the violation has occurred within the rules provided in the Protocol”. Dr OULD BOUHABIB (Mauritania) suggested that the phrase “Parties may consider adopting” should be replaced by “Parties should consider adopting”. Mrs ADEYEMO (Nigeria) said that she preferred the words “Parties shall adopt” that would encourage those involved in the tobacco trade, particularly equipment manufacturers, to ensure that they sold their products to authorized, instead of potentially illicit, tobacco traders. • Article 18: Destruction Dr TOESSI (Benin) said that the word “shall”, which was used twice in paragraph 1, should be replaced by “must”. Moreover, the end of the paragraph, after “environmentally friendly methods”, should be amended to read: “to the greatest extent possible, depending on the tobacco products in question”. The amendment was intended to allow low-resource countries to carry out the destruction process with the resources at their disposal. Mr HOSHINO (Japan) proposed that the phrase “shall be destroyed” should be replaced by “may be destroyed”. Decisions about the disposal of confiscated property should be left to the Party concerned. Mr SAMUDA (Panama) suggested that a new paragraph be added stating who would bear the costs of destruction. It was an expensive process and some States did not possess the necessary facilities.
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Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, supported the original version of paragraph 1. Confiscated property should be destroyed provided that any associated legal processes had been completed. Mr LU Yonghua (China) said that it was not always appropriate to destroy all confiscated property. Some of such property did have a value. The decision should be left to the Party concerned. Dr RANGREJI (India) said that, in some circumstances, it was not permissible to destroy confiscated goods. For instance, goods were sometimes confiscated because tax was owed on them: if the tax was paid, the goods would be returned. He asked for the words “manufacturing equipment, tobacco” in paragraph 1 to be placed in square brackets. Mr ADAM (Israel) asked whether there were any standard procedures or methods for the destruction process. Mrs DEMUNI DE SILVA (Sri Lanka) said that she preferred the original version of Article 18, which was consistent with subparagraph 4(c) of Article 15 of the Framework Convention. Her country had a very successful policy of destroying all types of confiscated tobacco products, and she would be happy to share experiences with other Parties. Mr KIMPTON (alternate to Ms Hefford, Australia) noted that paragraph 1 was similar but not identical to subparagraph 4(c) of Article 15 of the Framework Convention, which might cause confusion. She asked what the reasons were for the differences between the two. Mr MOHAMEDOUN (Mali) asked whether some alternative use could be found for confiscated tobacco products, such as composting them to make fertilizer. If not, they should be destroyed. Mr HODO (Ghana) said that the original version of Article 18 should be maintained since it met all the concerns expressed. Mr HOSHINO (Japan), supported by Ms LEI Zhao (China), suggested that paragraph 1 be amended to read: “shall be destroyed or disposed of in accordance with national law”, which was taken from subparagraph 4(c) of Article 15 of the Framework Convention. Parties would then be free to make their own decisions about disposal. Mr YOMO (Congo) said that, since tobacco actually impoverished the soil, making fertilizer from it was not an option. Confiscated tobacco products should be destroyed, along with any other prohibited goods seized by the customs service. Ms JUCA DA SILVEIRA SILVA (Brazil) said that she preferred the original wording of the Article. Her country, too, had a successful policy of destroying confiscated products and would be happy to share its experience with other Parties. Mr PADILLA (Philippines) recalled the negotiations on paragraph 4 of Article 15 of the Framework Convention, where it had been made clear that confiscated tobacco, tobacco products and manufacturing equipment must be destroyed, whereas other assets, such as vehicles or houses used in the course of illicit trade, need not necessarily be destroyed. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, stated a preference for the original version of Article 18, which was more prescriptive than the corresponding Article in the Framework Convention, in the interests of preventing confiscated products from being sold illegally. He considered that paragraphs 1 and 2 of the Article, when taken together, addressed
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many of the concerns expressed by representatives. Since the provisions of paragraph 3 were already covered by the previous two paragraphs, he considered that it could safely be deleted. The CHAIR agreed that the Article was intended to prevent confiscated products from reappearing on the illegal market. Dr RANGREJI (India) suggested the addition in paragraph 1 of the phrase: “be destroyed or disposed of in accordance with domestic law”, since “domestic” rather than “national” was used in other parts of the protocol. However, he considered that there should be no square brackets around the words “manufacturing equipment, tobacco”. Mr ZOUA (Cameroon) suggested that the word “immediately” should be inserted after “be destroyed” in paragraph 1, in order to reduce the risk of confiscated products reappearing on the illegal market. Mr YOMO (Congo) said that paragraph 3 should be retained. In his view, since the term “early destruction” referred to tobacco crops, the provision was not a duplication of the other parts of the Article. Mrs ROBINSON (Seychelles) said that a sample of a confiscated product was not always considered sufficient for the purposes of evidence: in some cases, the entire confiscated consignment would need to be kept until all legal proceedings had been completed. She suggested that, in paragraph 3, “shall take the necessary measures” should be replaced by “may take necessary measures”. Mr DLAMINI (Swaziland) expressed support for the original version of paragraph 1, which left no scope for ambiguity or exploitation. Representatives should read the Article as a whole rather than concentrating on the individual paragraphs, since the text addressed most of the concerns expressed, including those related to early destruction. Ms FIGUEROA (Chile) said that paragraph 3 should be retained with the current wording since it referred to the admissibility as evidence of small samples of a confiscated substance and the early destruction of the rest. Mr AL-JAHDAMI (Oman) agreed that paragraph 3 should be retained. However, early destruction of confiscated substances could lead to the loss of valuable evidence. Mrs DEMUNI DE SILVA (Sri Lanka) suggested that the phrase “Without prejudice to the provisions of Article 18.1” be inserted at the beginning of paragraph 3. Mr SAINT-DENIS (alternate to Mr Leguerrier, Canada) agreed with the proposal to add the phrase “or disposed of in accordance with national law” in paragraph 1. The word “national”, rather than “domestic”, was used in the Framework Convention. He asked for the phrase “other than tobacco, tobacco products and manufacturing equipment used in the manufacture of tobacco products” in paragraph 2 to be deleted, since those types of product were also useful for the training of law enforcement officers. Mr BURCI (WHO Legal Counsel), responding to a point raised by Mr GRÖNLUND (Sweden) speaking on behalf of the European Community, said that the term “seizure” referred to a temporary measure taken pending a final court judgement. “Confiscation” referred to the final and irreversible transfer of property to a public authority in compliance with such a judgement. There was, therefore, a potential inconsistency between the wording of paragraph 1, which referred to confiscated material,
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and paragraph 3, which referred to seized material. The proposal by Sri Lanka would overcome that difficulty. Mr PADILLA (Philippines) said that the procedure described in paragraph 3, whereby a sample of a larger consignment of a seized substance was considered admissible as evidence, was used successfully in his country. Consignments of confiscated tobacco were often stored for long periods pending the completion of legal proceedings and were thus more likely to reappear on the illegal market. Dr TOESSI (Benin), speaking on behalf of the Parties in the WHO African Region, said that those Parties supported the early destruction procedure referred to in paragraph 3, because of the slow pace of legal proceedings and the toxic nature and rapid deterioration of consignments of confiscated tobacco products. He suggested the addition of the following sentence at the end of paragraph 3: “The retention of small quantities of such substances as duly certified samples for evidence is permitted”. Mrs DEMUNI DE SILVA (Sri Lanka) noted for the benefit of the representative of Canada the statement in paragraph 10 of Article 16 of the protocol that property or equipment – which presumably included tobacco products – could be used for the purposes of training and law enforcement.
The meeting rose at 13:00.
FOURTH MEETING Thursday, 2 July 2009, at 10:30 Chair: Mr M. NAVARRETE (Chile)
DRAFTING AND NEGOTIATION OF A PROTOCOL ON ILLICIT TRADE IN TOBACCO PRODUCTS: Item 5 of the Agenda (Documents FCTC/COP/INB-IT/3/3, FCTC/COP/INBIT/3/INF.DOC./1, FCTC/COP/INB-IT/3/INF.DOC./2, FCTC/COP/INB-IT/3/INF.DOC./6 and FCTC/COP/INB-IT/3/INF.DOC./7) (continued) Part IV: Offences and sanctions (continued) • Article 19: Special investigative techniques The CHAIR invited the Committee to consider Article 19 of the draft protocol, and called upon representatives to be flexible in order to arrive at a text acceptable to all Parties. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community and supported by Mr SAINT-DENIS (alternate to Mr Leguerrier, Canada) and Mr PINTO NUNES (Brazil), said that the Article was acceptable, but the wording should be aligned more closely with that of Article 20 of the United Nations Convention against Transnational Organized Crime. For instance, the phrase “at national and international levels” did not appear in the Convention. The Parties considered that the phrase should be deleted, since the term “controlled delivery” was clearly defined in Article 1 of the protocol, and some Parties were not authorized under their domestic legislation to conduct a controlled delivery operation entirely on their own national territory. Dr MORI (Japan) said that, while effective investigative measures were essential, the exact methods used should be left to Parties’ discretion. He proposed that paragraphs 1 and 2 of Article 19 should be deleted. Mr HOSHINO (Japan) said that, under his country’s legislation, controlled delivery and other undercover investigative techniques were permitted only in the case of very serious crimes, such as drug trafficking. It would therefore be difficult for Japan to implement Article 19 as it stood. Moreover, as with other articles, his Party could not accept the reference to manufacturing equipment, and requested the deletion of the phrase “or manufacturing equipment used in the manufacture of tobacco products”. Mr LONGOLOMOI (Kenya), speaking on behalf of the Parties in the WHO African Region, said that the two paragraphs of the Article should be retained. In paragraph 1, the phrase “tobacco products or manufacturing equipment” should be replaced by “tobacco products and manufacturing equipment”. Mr PADILLA (Philippines) asked what was meant by “special investigative techniques” in relation to illicit trade in tobacco products and whether they could include extreme methods of interrogation. Techniques which were admissible in the context of the serious, transnational, organized crime addressed by the United Nations Convention against Transnational Organized Crime might be too draconian for the protocol. - 136 -
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Mrs ROBINSON (Seychelles) supported the proposal by the representative of Kenya to insert “and” between “tobacco products” and “manufacturing equipment”. No further amendment should be made to Article 19 since it dealt specifically with illicit trade in tobacco products, whereas Article 20 of the United Nations Convention against Transnational Organized Crime was specific to organized crime. Ms LEBAUX (United Nations Office on Drugs and Crime) said that the introduction of wording from Article 20 of the United Nations Convention against Transnational Organized Crime into the protocol would require certain elements, such as the reference to organized crime in paragraph 1 of Article 20, to be adjusted. The list of investigative techniques under Article 19 of the protocol was not comprehensive and included controlled delivery and electronic surveillance. Interrogation of suspects was not mentioned. Mr LEROY (United Nations Office on Drugs and Crime) said that the protocol must provide for the possibility of controlled delivery and other investigative techniques, not only at the level of transnational organized crime, as addressed by the United Nations Convention against Transnational Organized Crime, but also at national level and, for less serious offences, at international level. In general, he urged representatives to ensure that the protocol could function with relative autonomy if necessary and cover those spheres of intervention. Some countries might not have the resources to follow up references to other legal instruments properly, and might therefore inadvertently leave gaps in the domestic legislation they adopted to implement the protocol. The drafters of the Convention had, for instance, thought it necessary to repeat many of the provisions of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988. Mr AL-JAHDAMI (Oman) said that paragraph 1 dealt specifically with illicit trade in tobacco products and should therefore be retained in preference to the more general wording of the United Nations Convention against Transnational Organized Crime. Dr MUÑOZ PORRAS (Chile) said that, while it was important to reproduce the provisions of Article 20 of the United Nations Convention against Transnational Organized Crime as closely as possible, the protocol must also make provision for types of illicit trade not covered by the Convention, namely illicit trade carried on within a single country and international smuggling which could not be classified as transnational organized crime. Dr ABASCAL (Uruguay) said that, when discussing Article 16 of the protocol, the Committee appeared to have agreed that it should reproduce the wording of the United Nations Convention against Transnational Organized Crime as closely as possible. It would be consistent to do the same with Article 19. However, as the representative of Chile had said, the protocol must also address the issue of illicit trade within a country. Mr HODO (Ghana) said that the original wording of paragraph 1 should be maintained. The protocol was not a protocol to the United Nations Convention against Transnational Organized Crime, but a separate instrument dealing specifically with tobacco control. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, suggested the following wording for paragraph 1: “If permitted by the basic principles of its domestic legal system, each Party shall, within its possibilities and under the conditions prescribed by its domestic law, take the necessary measures to allow for the appropriate use of controlled delivery and, where it deems it appropriate”. Mr FALL (Senegal) said that, throughout the protocol, tobacco was treated as an inherently illegal substance, on a par with narcotic drugs. In fact, however, tobacco could be traded completely legitimately: it was evasion of the associated regulations and taxes which constituted a criminal
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offence. Illicit trade in tobacco products was an offence of fraud which could be addressed perfectly adequately by the existing regional customs legislation, as the representative of the World Customs Organization had said earlier in the session, or by fraud investigation and control agencies. In his opinion, the title of Article 19, “Special investigative techniques” was misleading, since it denoted action that went far beyond controlled delivery and the other techniques listed in the Article. What was required was the coordinated exchange and management of information, which could be organized through existing agencies. Mr DLAMINI (Swaziland) said that the original wording of Article 19 should be retained, with the amendment “tobacco products and manufacturing equipment”. Paragraph 1 listed action that demonstrated what was meant by “special investigative techniques”, and that any action undertaken must be consistent with the domestic law of the Party concerned. Dr TOESSI (Benin) supported the proposed wording “tobacco products and manufacturing equipment”. He agreed that the protocol should be drafted so as to be as universally applicable as possible when taken alone, without reference to other legal instruments, even if that meant reproducing the provisions of those instruments. It was clear to everyone that trade in tobacco, tobacco products and manufacturing equipment could be carried on legally. The protocol was meant to cover situations where such trade was carried out illicitly, in order to address the associated public health problems and help low-resource countries, such as those in Africa, to benefit from the experiences of others. Mr SAMUDA (Panama) said that paragraph 1 should follow the wording of Article 20 of the United Nations Convention against Transnational Organized Crime as closely as possible to avoid possible problems of interpretation in the future, particularly since paragraphs 2 and 3 were almost identical to the corresponding provisions of the Convention. Mrs ADEYEMO (Nigeria) said that there was a fundamental difference between Article 20 of the United Nations Convention against Transnational Organized Crime and Article 19 of the protocol. The former relied on the Party’s own domestic investigation system, whereas the protocol sought to establish an international system of cooperation. Using the wording of Article 20 of the Convention would send a message to Parties that they need only investigate illicit trade if it took place on their own territory, using only their own laws which, in the case of many African countries, were a legacy of the colonial era and were only gradually undergoing reform. Dr MUÑOZ PORRAS (Chile) said that Article 19 had presumably been included on the advice of taxation and law enforcement experts, which implied that provisions governing special investigative techniques were needed in the protocol. He agreed, however, that it was preferable to use the wording of Article 20 of the United Nations Convention against Transnational Organized Crime as far as possible. Mrs ROBINSON (Seychelles) said that she could not support the proposal by the European Community. The Committee must decide whether the Article dealt specifically with illicit trade in tobacco products, or more generally with organized crime in the context of the tobacco trade. If the new wording was adopted, she suggested that the title of the Article should be changed to “Investigative techniques” or “Measures for investigation” and that the phrase “where it deems appropriate” should be deleted. Dr WIDAD YOUSIF (Sudan) said that the original wording of Article 19, with the amendment proposed by the representative of Kenya, adequately served the objectives of the protocol. There was no need to ensure that it was consistent with any other legal instrument. In any case, paragraph 1 stated the overriding principle that any action taken must be in conformity with the fundamental principles of the Party’s own legal system.
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Dr RANGREJI (India) said that the provisions on special investigative techniques were important and should be maintained. However, he questioned how a measure such as controlled delivery could be implemented on an international level on the basis of Parties’ own domestic legislation. Mr KLEYNHANS (South Africa) said that the original wording of Article 19 should be retained, with the amendment of the word “and” to replace “or” in the phrase “tobacco products and manufacturing equipment”. The Article provided a useful guide to investigative techniques appropriate to the context of illicit trade in tobacco products. He considered that the new text proposed by the European Community was not substantively different from the original text. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, said that the Community wished its proposed new text to remain under consideration, since it was important to maintain consistency with the United Nations Convention against Transnational Organized Crime wherever possible. Mr DLAMINI (Swaziland) said that, whatever the wording eventually adopted, the protocol must be a strong instrument which would be ratified and effectively implemented by as many Parties as possible in order to tackle the serious problem of illicit trade. Mr HODO (Ghana) asked whether those Parties that wished to align the text with the United Nations Convention against Transnational Organized Crime had any reason to do so other than ensuring consistency between the two instruments. He preferred the original wording, with the proposed amendments, since its legal consequences were completely clear. Mr FASHINA (Nigeria) said that the impact of illicit trade in tobacco products was not confined to public health. In countries such as his own, the proceeds of the illicit tobacco trade were also used to undermine national security. The position adopted by the Parties in the WHO African Region should be seen in that light. Mr SAINT-DENIS (alternate to Mr Leguerrier, Canada), said that special investigative techniques were mentioned in three United Nations conventions: the Convention against Transnational Organized Crime; the Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances; and the Convention against Corruption. It seemed likely that all the potential Parties to the protocol were also party to at least one of those instruments. It would be logical to use wording drafted by experts in criminal law, which many States had approved and which was not liable to misinterpretation. Dr ABASCAL (Uruguay) said that the new wording of Article 19 proposed by the European Community was very similar to that of Article 20 of the United Nations Convention against Transnational Organized Crime; there was no substantive difference between the two. Mr MOSSOP (alternate to Ms Hefford, Australia) said that the special investigative techniques listed in Article 19 had been chosen by the experts who had drafted the United Nations Convention against Transnational Organized Crime and similar instruments as the most effective and widely acceptable means of investigating transnational crime. The Committee should bow to their experience. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, said that the protocol must be a strong, well-balanced instrument, and one which as many governments as possible were prepared to ratify. Accordingly, it was advisable to use the wording of an instrument that was tried and tested, such as the United Nations Convention against Transnational Organized Crime, not necessarily verbatim, but as a guide, unless there was good reason not to do so.
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In his opinion, the word “or” in the phrase “tobacco products or manufacturing equipment” was equivalent to “and/or”. Mr BURCI (WHO Legal Counsel) said that his interpretation of the word “or” would be that it covered any, or all, of the elements of the list. The word “and” meant the entire group of elements, with no possibility of excluding one or more of them. Mr ZOUA (Cameroon) suggested that the phrase “electronic or other forms of surveillance” should be amended to read: “electronic or other existing and new forms of surveillance”, which would ensure that any new, innovative techniques could be put to use straight away. Mr MOHAMEDOUN (Mali) said that there were some differences between the original version of Article 19 of the protocol and Article 20 of the United Nations Convention against Transnational Organized Crime. For instance, the latter was rather more flexible by virtue of the phrase “within its possibilities”. However, the main difference was the area of application of the two instruments: the Convention referred to the use of special investigative techniques in the context of organized crime, whereas the protocol would include some offences which could not be classified as organized crime. Mr LU Yonghua (China) said that the choice seemed to be between adopting the wording suggested by the European Community, which reproduced the wording of Article 20 of the United Nations Convention against Transnational Organized Crime, and deleting Article 19 of the protocol altogether. The first option assumed that illicit trade in tobacco products constituted a transnational crime and that the provisions of the Convention were thus directly applicable: however, it would make Parties which were not also party to the Convention less likely to ratify the protocol. Mr LEROY (United Nations Office on Drugs and Crime) said that, for an initial period which might last several years, there would be a relatively large number of Parties to the United Nations Convention against Transnational Organized Crime and a smaller number of Parties to the protocol. The former were more likely to collaborate in a controlled delivery operation if the wording of the protocol was as close as possible to that of the Convention and thus likely to be familiar to them. The proposal by the European Community merited attention for that reason. As for the issue of controlled delivery across borders or within a country, both the protocol and the Convention defined the term as allowing illicit or suspect consignments to pass out of, through or on to the territory of one or more States. In any case, in his experience, controlled delivery was a technique more popular with ministers than with the technical staff who had to carry out the operation, who were often reluctant to work outside their own country. The clearer the wording of the protocol was, the easier their task would be. Dr ABASCAL (Uruguay) said that the wording of Article 19 should adhere as closely as possible to that of Article 20 of the United Nations Convention against Transnational Organized Crime, taking from it the specialized investigative techniques which could also be used in activities to combat illicit trade in tobacco products. After all, many States were already party to the Convention, and even more were party to the Framework Convention and would, it was to be hoped, ratify the protocol in due course. Dr MUÑOZ PORRAS (Chile), supported by Dr ABASCAL (Uruguay), noted two major differences between the original version of Article 19 of the protocol and Article 20 of the United Nations Convention against Transnational Organized Crime. The latter included the phrase “where it deems appropriate”, which could be added to paragraph 1 of Article 19 of the protocol after the phrase “surveillance and undercover operations”. Article 20 of the Convention also included the phrase “within its possibilities”, which could be added to paragraph 1 of Article 19 of the protocol after the phrase “the fundamental principles of its legal system”. He still preferred the option of reproducing the wording of the Convention. However, if the Committee wished to retain the original wording of
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Article 19 of the protocol, the addition of the two phrases he had cited would ensure that the Article reproduced the substantive content of the Convention. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, said that the proposal made by the representative of Chile was a promising one. However, the Community would need time to consider any possible implications. Ms LEBAUX (United Nations Office on Drugs and Crime) noted a number of minor differences between paragraph 1 of Article 20 of the United Nations Convention against Transnational Organized Crime and paragraph 1 of Article 19 of the protocol, mostly affecting the safeguards regulating the use of special investigative techniques. Paragraph 1 of Article 20 of the Convention read: “If permitted by the basic principles of its domestic legal system”, whereas paragraph 1 of Article 19 of the protocol contained the wording “subject to the fundamental principles of its legal system”, which did not seem a significant difference. It had been proposed to introduce in paragraph 1 of Article 19 of the protocol the phrase, taken from paragraph 1 of Article 20 of the Convention, “within its possibilities and under the conditions prescribed by its domestic law”. It had been proposed to delete the phrase “at national and international levels” from paragraph 1 of Article 19 of the protocol, but in any case it was clear from the definition in paragraph 5 of Article 1 of the protocol that the concept of controlled delivery covered both national and international operations. It had also been proposed to restore the phrase “where it deems appropriate” to paragraph 1 of Article 19, but in a slightly different position, which might have implications for its interpretation. The addition of a new phrase, “existing and new forms of surveillance”, had been proposed. The reference to “organized crime” in paragraph 1 of Article 20 of the Convention had been changed to a reference to tobacco products in paragraph 1 of Article 19 of the protocol. Overall, in her opinion, the differences were so minor that there seemed to be no justification for diverging from the language of the Convention. Mr LEROY (United Nations Office on Drugs and Crime) warned that the phrase “existing and new forms of surveillance” might make some Parties reluctant to accede to the protocol, since they might see it as an open-ended commitment to adopt new forms of surveillance as they were developed. The CHAIR said that the Committee should make use of the valuable experiences gained during the drafting of the United Nations Convention against Transnational Organized Crime and similar instruments. There was no need to reinvent the wheel. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, noted that the advice of the experts from the United Nations Office on Drugs and Crime was to stay as close as possible to the wording of the United Nations Convention against Transnational Organized Crime, as had been done in the wording proposed by the European Community. He hoped that other Parties would agree to a version based on that wording. Mrs ADEYEMO (Nigeria) said that the phrase “within its possibilities” was intended as a safeguard for those Parties that were not, legally or practically, in a position to embark on action such as a large transnational undercover operation. However, the judgement implied by the phrase “where it deems appropriate” was much more subjective: the decision whether to undertake an investigative operation might be left to agencies that were inadequately equipped for the task. Replying to a question from Mrs ROBINSON (Seychelles), Ms LEBAUX (United Nations Office on Drugs and Crime) said that, strictly speaking, the phrase “where it deems appropriate” in the position where it had been proposed for insertion in paragraph l of Article 19 of the protocol applied only to the phrase which followed it, “by its competent authorities”. The meaning thus differed slightly from that of paragraph 1 of Article 20 of the United Nations Convention against Transnational Organized Crime.
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Mr LONGOLOMOI (Kenya) said that Article 20 of the United Nations Convention against Transnational Organized Crime, and thus the proposal for Article 19 of the protocol put forward by the European Community, implied that Parties should operate under their own domestic law, even if they were seeking to apprehend criminal groups involved in transnational organized crime. In the earlier negotiations on the protocol, the Parties in the WHO African Region, while aware of the provisions of the Convention, had sought to create a protocol specifically targeted at illicit trade in tobacco products, including its transnational aspects. Strict adherence to the provisions of the Convention might mean that some Parties would have to adopt additional domestic legislation in order to implement the protocol. He appealed to the European Community to show flexibility: the proposal by the representative of Chile formed a useful basis for consensus. Mr AL-JAHDAMI (Oman) said that paragraph 1 should refer specifically to controlled delivery at national and international levels. Mr SAINT-DENIS (alternate to Mr Leguerrier, Canada) said that the special investigative techniques listed in Article 20 of the United Nations Convention against Transnational Organized Crime were powerful, but also potentially open to abuse by law enforcement agencies. The current text of paragraph 1 of Article 19 of the protocol did not retain all the safeguards included in the Convention. He suggested that the phrase “and under the conditions prescribed in its domestic law” should be added to the wording for paragraph 1 proposed by the representative of Chile, before “take the necessary measures”. Most countries that used techniques such as electronic surveillance had domestic legislation to regulate its use that would be valuable in preventing possible abuse of the protocol. Mr HODO (Ghana) said that the United Nations Convention against Transnational Organized Crime was not infallible. The Committee should not necessarily reproduce its provisions blindly, but should seek to improve it and update it to meet changing conditions. He asked the experts from the United Nations Office on Drugs and Crime what weak spots, or even mistakes, had been identified in the Convention since its adoption. He asked what were the legal implications of the differences between the original version of Article 19 of the protocol, preferred by the Parties in the WHO African Region, and the version proposed by the European Community, as all Parties shared the same objective of a strong protocol. The CHAIR, speaking in his personal capacity, said that, although the United Nations Convention against Transnational Organized Crime was certainly not infallible, it was valuable to have standards which had been discussed and approved and to see the lessons which had been learnt from them. Ms LEBAUX (United Nations Office on Drugs and Crime) said that she and her colleague had been invited to attend the current session to advise Parties on the content of the United Nations Convention against Transnational Organized Crime, which many Parties had thought would be useful in the drafting of the protocol. It could save the Committee considerable time to use wording which had already been agreed by a large number of States. However, it was entirely for Parties to decide whether, or how, to use the Convention. She was not aware of any legal infelicities in Article 20 of the Convention but, of course, there was always room for improvement in any legal instrument. Dr MUÑOZ PORRAS (Chile) supported the proposal by the representative of Canada to add the phrase “and under the conditions prescribed in its domestic law” in paragraph 1. However, he could not accept the addition of the phrase “existing and new forms of surveillance”, since the legal implications of new techniques could not be known. Mr ALBUQUERQUE E SILVA (Brazil) said that the contribution of the experts from the United Nations Office on Drugs and Crime had been extremely valuable. However, regrettably, some
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Parties had used it to justify their own political positions. He appealed to representatives to address their questions to the Chair, who would refer any legal issues to the experts for their technical comments. Mr PINTO NUNES (Brazil) noted that paragraph 2 of Article 19 referred to the conclusion of “appropriate bilateral or multilateral agreements or arrangements”, which surely made it clear that the protocol covered both national and international operations. Mr HOSHINO (Japan) recalled that, earlier in the meeting, his Party had called for the deletion of paragraphs 1 and 2 of Article 19. Now, however, he was prepared to accept the wording proposed by the European Community. Japan had strict regulations governing special investigative techniques, and was conscious of the potential for the abuse of power by law enforcement agencies. However, it was fully committed to the fight against illicit trade in tobacco products. Dr TOESSI (Benin) said that, in fact, there were not many differences between the various proposals. From the explanations provided by the experts from the United Nations Office on Drugs and Crime, it was clear that the United Nations Convention against Transnational Organized Crime and the protocol contained similar provisions relating to cooperation between Parties and to national and international surveillance. Some Parties had wished to delete references to equipment used for the manufacture of tobacco products, but he could not accept that proposal. Those Parties that had expressed reservations about the scope of surveillance activities would, if already party to the Convention, be bound by similar obligations. There remained the issue of international cooperation and he considered that Article 20 of the Convention clearly defined the elements which should appear in Article 19 of the protocol. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, said that the proposal made by the representative of Chile was acceptable. However, he suggested that the phrase “where it deems appropriate” should appear earlier in paragraph 1, just before “for the use of other special investigative techniques”. He greatly appreciated the constructive spirit shown during the discussion by all participants, particularly the Parties in the WHO African Region. Mrs ADEYEMO (Nigeria), speaking on behalf of the Parties in the WHO African Region, said that the phrase “where it deems appropriate” gave Parties too much scope to refrain from taking action in situations where illicit trade took place within a single country, or where another Party had requested cooperation in a transnational investigation. The CHAIR noted that, in paragraph 2, Parties were encouraged to conclude, when necessary, appropriate bilateral or multilateral agreements or arrangements. As he understood it, the concern of the Parties in the WHO African Region was that Parties might be expected to conduct international investigations using only their own legislation and resources, although the wording of paragraph 2 should be sufficient to allay that concern. Dr RANGREJI (India) said that, after all the amendments that had been proposed, paragraph 1 contained so many qualifying phrases, such as “within its possibilities” and “where it deems appropriate”, that the text was very difficult to understand. He suggested the simplified wording: “Each Party shall, in accordance with its domestic law and to the extent possible, take the necessary measures”. Ms HACOHEN (Israel) said that the proposal by the European Community to place the phrase “where it deems appropriate” just before “for the use of other special investigative techniques” had the unfortunate effect of splitting the paragraph into two. As she read it, only controlled delivery was covered by all the proposed conditions other than “where it deems appropriate”, whereas the latter was the only condition that applied to other special investigative techniques.
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Mrs ADEYEMO (Nigeria), speaking on behalf of the Parties in the WHO African Region, said that paragraph 1 had been weakened by the addition of so many qualifying phrases. It was not clear whether the bilateral and multilateral agreements referred to in paragraph 2 would be sufficient to resolve the concerns of the WHO African Region. The CHAIR, summing up, noted that the Parties in the WHO African Region were concerned about the potential confusion which might arise from the many conditions which had been added to paragraph 1. He asked whether the Committee was willing to accept the simplified wording proposed by the representative of India. If so, he felt that a consensus could soon be achieved. Mr AL-JAHDAMI (Oman) said that his Party reserved its position on all the amendments proposed so far, and was not ready to approve one wording over another. Ms JAQUEZ (Mexico) supported the wording proposed by the representative of India. Mr SAINT-DENIS (alternate to Mr Leguerrier, Canada) said that his Party still preferred the option of reproducing the wording of the United Nations Convention against Transnational Organized Crime, in the version proposed by the European Community, as that wording had proved to be effective and widely acceptable, and it provided essential safeguards against abuse. Mr LONGOLOMOI (Kenya), speaking on behalf of Parties in the WHO African Region, asked for more time for the Parties to consider their position. (For continuation of the discussion on Article 19, see summary record of the fifth meeting.)
The meeting rose at 13:05.
FIFTH MEETING Thursday, 2 July 2009, at 15:20 Chair: Mr M. NAVARRETE (Chile)
DRAFTING AND NEGOTIATION OF A PROTOCOL ON ILLICIT TRADE IN TOBACCO PRODUCTS: Item 5 of the Agenda (Documents FCTC/COP/INB-IT/3/3, FCTC/COP/INBIT/3/INF.DOC./1, FCTC/COP/INB-IT/3/INF.DOC./2, FCTC/COP/INB-IT/3/INF.DOC./6 and FCTC/COP/INB-IT/3/INF.DOC./7) (continued) Part IV: Offences and sanctions (continued) • Article 19: Special investigative techniques (continued) The CHAIR, reminding the Committee that it must finalize Part IV of the protocol, in which Articles 12, 16 and 19 remained pending, and move on to Part V as quickly as possible, invited the Committee to consider two options for paragraph 1 of Article 19, namely a series of minor changes proposed by Chile and others and a new version presented by the European Community. Paragraph 1 Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, read out the amended proposal for paragraph 1, based on comments made at the fourth meeting, with a view to achieving a consensus: “Each Party shall, subject to the fundamental principles of its legal system, within its possibilities and under the conditions prescribed in its domestic law, take the necessary measures to allow for the appropriate use of controlled delivery at national and international levels and, where it deems appropriate, for the use of other special investigative techniques, such as electronic or other forms of surveillance and undercover operations, by its competent authorities on its territory for the purpose of effectively combating illicit trade in tobacco, tobacco products and manufacturing equipment used in the manufacture of tobacco products”. Ms JAQUEZ (Mexico) asked whether the first proposal by Chile and others to clarify the language, which Mexico supported, was still open for discussion in case the second, by the European Community, failed to achieve consensus. In any event, Parties must decide which option to use as a basis for the negotiation as it would be confusing to work simultaneously on two versions of the same paragraph. The CHAIR said that the Committee was not working on two texts but on the original paragraph 1 with relevant amendments. The proposal read out by the European Community had been presented in a bid for consensus. Mrs ROBINSON (Seychelles), speaking on behalf of the Parties in the WHO African Region, supported the proposal by the European Community and suggested that the commas should be removed from “and, where it deems appropriate, for the use of ”. Mr HOSHINO (Japan) commended the spirit of compromise that had brought Parties close to a consensus which Japan had no wish to impede. However, he registered his previously expressed - 145 -
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reservations concerning the inclusion of manufacturing equipment in the scope of the protocol and requested further time to consult with his Government on that matter. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, said that he had no objection to removing the commas from the phrase “and, where it deems appropriate, for the use of ”, but that for purely linguistic reasons the commas should be retained. Ms HACOHEN (Israel) said that the conditions set out in the opening lines of paragraph 1 applied both to “controlled delivery” and to “other special investigative techniques”, whereas the words “where it deems appropriate” had been intended to apply only to the latter. To avoid any possible ambiguity, she proposed that those words should be removed from the middle of the paragraph and that an additional sentence be inserted at the end, to read: “Each Party may decide in which cases its use of other special investigative techniques is appropriate”. Mr FASHINA (Nigeria) questioned the usefulness of the proposal by the representative of Israel as there seemed to be agreement on the punctuation change proposed by Seychelles. Dr RANGREJI (India), speaking on behalf of the Parties in the WHO South-East Asia Region, expressed uncertainty about whether it was appropriate to add the phrase suggested by Israel but agreed to join the consensus on the proposal by the European Community. Mr LONGOLOMOI (Kenya) fully supported the proposal by the European Community, without the amendments proposed by Israel and Seychelles, and suggested that the second “and” placed in square brackets should be deleted. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, suggested that the word “may” in Israel’s proposed text might be changed to “shall”, in keeping with the language at the beginning of paragraph 1: “Each Party shall ”. Mr DLAMINI (Swaziland), supporting the text proposed by the European Community, urged Israel to reconsider its proposal since the idea of leaving the use of special investigative techniques to the discretion of Parties was implicit in the words “where it deems appropriate”. After considerable time spent in seeking acceptable language, he believed that the Committee had in fact reached consensus. The CHAIR took it that the Committee agreed to the removal of the square brackets in paragraph 1, except for those relating to the position of Japan. It was so agreed. The CHAIR, said that further discussion on paragraph 1 of Article 19 was suspended pending Israel’s reaction to the request from the European Community and the outcome of the consultation by the representatives of Japan with their Government. He invited comments on paragraphs 2, 3 and 4. Paragraphs 2, 3 and 4 Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, observed that paragraph 2 might need revisiting when the Committee resumed its consideration of Article 12, which covered both criminal and administrative offences. He suggested that the words “when necessary” be inserted in the second line between “to conclude” and “appropriate bilateral or multilateral agreements”.
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Mr MOHAMEDOUN (Mali) supported the amendment proposed by the European Community as it would broaden the scope of the paragraph without making it less comprehensible. He considered that the reference to the techniques covered in paragraph 1 appeared to be relevant. Dr MORI (Japan) said that if the words “when necessary” were included, his Party would withdraw its request for deletions in paragraphs 1 and 2. The CHAIR, seeing no objections, took it that the Committee wished to remove the square brackets around the words “when necessary” and to approve paragraph 1. It was so agreed. Mrs ROBINSON (Seychelles) requested clarification on the difference in tone between “Parties are encouraged to conclude, when necessary” in paragraph 2, and the more obligatory “decisions … shall be made” in paragraph 3. Mr BURCI (WHO Legal Counsel) explained that while the underlying assumption in paragraph 2 was that Parties would conclude bilateral and multilateral agreements to regulate the use of special investigative techniques, paragraph 3 provided for situations where no such agreements had been concluded. The CHAIR said that, in the absence of any further comments, he took it that the Committee wished to approve paragraph 2, as amended, and paragraphs 3 and 4. It was so agreed. • Article 12: Offences (continued from the second meeting) The CHAIR recalled that the Committee had come close to a consensus on the proposal by Australia to combine paragraphs 1 and 2; that it had yet to establish the criteria for determining the scale, nature and, therefore, seriousness of each form of conduct identified in the two paragraphs; and that it must also finalize the language. The three proposals for combining the paragraphs read: “Each Party shall consider adopting, in accordance with its constitutional process, appropriate legislative and other measures, as may be necessary, to establish the following conduct as criminal or punishable offences under its domestic law, including in free trade zones, when committed intentionally and on a commercial scale anywhere on its territory or any other places under its jurisdiction as recognized under international law:”. “Each Party shall adopt appropriate legislative and other measures as may be necessary to establish the following conduct as unlawful under its domestic law:”. “Each Party shall adopt as appropriate legislative and other measures as may be necessary to prohibit and sanction in conformity with its domestic law:”. Mr DEMPSEY (alternate to Mr Leguerrier, Canada) stressed that determining which forms of conduct should be established as criminal offences was the most important part of the current negotiation. He agreed with the representative of Australia that they would be difficult to discuss in two separate lists. The two lists should therefore be merged and presented in a new paragraph 1 of Article 12, opening with the second of the introductory parts, submitted by Australia, on which Parties had come close to a consensus. The Committee would then need to discuss the content of the merged list as none of the forms of conduct had so far been considered. A sentence should be added at the end in an effort to reconcile the many valid differences of opinion expressed on the matter, reading: “Each Party shall determine, in accordance with their domestic law, the most serious unlawful conduct set out in paragraph 1 and, when committed intentionally and on a commercial scale, establish that conduct as a serious criminal offence”.
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Mr MOSSOP (alternate to Ms Hefford, Australia), Mr PINTO NUNES (Brazil), Dr MUÑOZ PORRAS (Chile), Dr RANGREJI (India), on behalf of the Parties in the WHO South-East Asia Region, Mr HOSHINO (Japan), Ms JAQUEZ (Mexico) and Mr SALAGAI (adviser to Mr Nebenzia, Russian Federation) supported the proposal by Canada. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, said that the proposal by Canada seemed to be a useful step forward, but he would have to consult his colleagues in the European Community and would report back as soon as possible. He meanwhile personally agreed on the need to review the list of criminal offences, especially those outlined in subparagraphs 1(h) and (i); for instance, “aiding” and “abetting” should be removed from the latter and presented in a separate subparagraph or article. Mr PADILLA (Philippines), supporting the proposals by Australia and Canada, reiterated his country’s reservations about the term “when committed intentionally”. The complexities of intentionality, and when it existed in the mind, could make prosecution more difficult. The CHAIR, in response to the previous speaker, said that a crime in modern criminal law worldwide always involved an objective element, namely determining what constituted criminal conduct, and an element of intentionality, otherwise known as wilful misconduct or volition. In the vast majority of States, it was assumed that the person that had committed the crime knew the rules and intended to break them. In his experience, even though the element of intentionality did indeed exist in the mind, it was perfectly possible to prove intentionality on the basis of, for example, documentary evidence, witness accounts and the actions of the accused. Ms LEI Zhao (China) said that she had no objection to the proposed introductory part of paragraph 1, but requested clarification of the terms “on a commercial scale” and “serious criminal offence” in the proposed amendments to Article 12, for which there were no equivalents in Chinese law. She asked whether those would appear elsewhere in the protocol. Mr DEMPSEY (alternate to Mr Leguerrier, Canada) said that “on a commercial scale” was a term used in other international agreements but never actually defined, thus leaving governments free to interpret it as they wished. Mr PADILLA (Philippines), in response to the comment by the Chair, said that he still failed to see why Article 12 should be confined to offences committed intentionally, which might be hard to prove. Committing a malum prohibitum offence, for instance, was in itself considered a criminal act without the need to prove any element of intentionality; and offences were also committed unintentionally, by omission or negligence. Mr AL JEHANI (Saudi Arabia) said that he opposed the use of the words “when committed intentionally” in the introductory part of paragraph 1. Intentionality had to be proved, otherwise the offence would be subject to civil rather than criminal proceedings. The CHAIR, noting that there appeared to be general agreement on the introductory language, suggested that the Committee should move on to consider whether any forms of conduct needed to be amended, deleted or added to the list. Mr DLAMINI (Swaziland), requesting time to consult other Parties in his Region, said that there might be objections to the replacement of the word “criminal” by “unlawful”, or the use of the phrase “when committed intentionally”, which might later give rise to difficulties.
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Mrs WONG Mee Ling (Malaysia), seeking clarification from the representative of Canada of the purpose of the term “on a commercial scale”, said that in Malaysian law, smuggling was in itself an offence, irrespective of scale. Mr DEMPSEY (alternate to Mr Leguerrier, Canada) reiterated his earlier comment that it would be for the Parties to decide what volumes constituted a commercial scale. The purpose of the term was to ensure that the punishments they deemed necessary for the most serious criminal offences set out in paragraph 1 were not applied to small-scale and, perhaps, inadvertent smuggling. Mr MOHAMEDOUN (Mali) said that the wording seemed acceptable but that he would need to see an accurate French translation before confirmation. Dr RANGREJI (India), speaking on behalf of the Parties in the WHO South-East Asia Region, agreed in principle with the proposal for paragraph 2 but suggested an alternative version, reading: “Each Party shall determine, in accordance with its domestic law, any unlawful conduct set out in paragraph 1 of Article 12 as a serious criminal offence”. The terms “committed intentionally” and “on a commercial scale” were not always relevant criteria of what constituted a serious criminal offence. Mr AL JEHANI (Saudi Arabia) said that, according to the customs authorities in his country, the term “on a commercial scale” meant very large quantities beyond those required for personal consumption. Criminal offences on that scale were covered by, inter alia, the Agreement on TradeRelated Aspects of Intellectual Property Rights (TRIPS), and Parties should not enter into matters of scale in negotiating a protocol on illicit trade in tobacco products. Dr ABASCAL (Uruguay) suggested that it might help those Parties unable to define the term under their domestic commercial laws if it were amended to read: “on a large commercial scale”. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, urged Parties to consider the proposals put forward by Australia and Canada. The enforceability of other articles of the protocol would depend on common criteria being agreed to determine what amounted to a serious criminal offence, and commercial scale and intentionality represented a good starting point for developing a global concept capable of taking into account the various positions. Ms FIGUEROA (Chile) fully supported the thrust of paragraph 2 with reference to offences committed intentionally and on a commercial scale, but opposed the proposal by Uruguay to insert the word “large”. The criterion of volume might affect the seriousness of unlawful conduct but did not help to establish whether the activities involved were of a commercial nature. Mrs ADEYEMO (Nigeria) said that she considered Article 12 as the hub of the protocol because it listed the activities that constituted illicit trade in tobacco products. It should therefore be made as strong as possible. Using the word “unlawful” in place of “criminal” for the conduct covered by the merged list in paragraph 1, however, would have the opposite effect since the offences would no longer come within the scope of serious crime as defined by the United Nations Convention against Transnational Organized Crime. Furthermore, since the consensus regime distinguished between goods imported for personal and commercial purposes, there was no need to insert the word “large” in the term “on a commercial scale”. Dr ABASCAL (Uruguay), in the light of the comments by Chile and others, withdrew his proposal to insert the word “large”.
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Ms JAQUEZ (Mexico) expressed support for use of the word “unlawful” as a means of finding middle ground between Parties wishing to refer to criminal and to administrative offences. Some Parties, including Mexico, already specified in their domestic legislation what was meant by unlawful conduct and whether it carried administrative or criminal sanctions. Such a compromise should be seen as paving the way for all Parties to ratify the protocol rather than as an attempt to weaken it, or as a lack of commitment to tobacco control and the protection of public health. Mr MOHAMEDOUN (Mali) said that he feared that the word “criminal” might be hard to translate into French, given the connotations of that word and the various kinds of offences it covered in his country’s legal system. The more general term “unlawful” would allow Parties to determine what constituted a criminal or an administrative offence. The CHAIR observed that the current discussion was on terminology, the distinction between crimes and offences, serious or otherwise, and legal concepts that distinguished civil from administrative offences. It should not be too difficult to find consensus wording that was broad enough to encompass the various concepts and categories, which all Parties could therefore incorporate in their national legislation. Mr PADILLA (Philippines) said that paragraph 1, as he understood it, dealt with offences carrying criminal, administrative or civil sanctions, and that the provisions of the United Nations Convention against Transnational Organized Crime, such as four years’ imprisonment and extradition, would be triggered only if those were classed as serious criminal offences. He therefore agreed with the proposal by India as that allowed individual Parties to determine what constituted such an offence, whether it had been committed on a commercial scale, and whether the offender was extraditable under the terms of that Convention. Mrs DEMUNI DE SILVA (Sri Lanka) agreed with the previous speaker that the term “serious criminal offence” should be understood in the light of the definition of serious crime in the United Nations Convention against Transnational Organized Crime. Mr MOHAMEDOUN (Mali) said that if paragraph 1 referred to unlawful conduct, paragraph 2 should indeed include the term “serious criminal offence” subject to the sanctions provided by the United Nations Convention against Transnational Organized Crime. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, suggested that the words “when committed intentionally” should be added to the introductory part in paragraph 1, and that the word “serious” should be deleted from the phrase “a serious criminal offence” in paragraph 2. Meanwhile, it was his understanding that the Committee had agreed on the need to develop a common set of criteria for what constituted a serious offence under the protocol. Extradition, for instance, which featured in several articles, was only applied to offences carrying a sentence of at least one year. Minimum conduct requirements must be established to ensure the enforceability of key articles on international cooperation in Part V. Mr ZOUA (Cameroon) said that French speakers would have less trouble with a term like “serious offence” or “serious fraud” than with “serious criminal offence”. The word “criminal” related to crime, which covered serious offences and, hence, should be omitted. The CHAIR, reiterating his earlier comment about Parties being unable to reach consensus on account of language problems, noted that their overriding desire was to penalize the serious conduct causing the greatest harm, and to foster international cooperation to combat the criminal organizations involved in large-scale illicit trade rather than the sale of a few packets of contraband cigarettes. It should be possible to produce a consensus text based on the proposal by Canada, with amendments
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suggested by India, which seemed comprehensive enough and had the support of a large number of Parties. Ms FIGUEROA (Chile) said that, after having consulted the Parties in the WHO Region of the Americas, she agreed that every State had a sovereign right to decide whether a particular offence was subject to civil, administrative or criminal sanctions. Concerned about the expression “serious criminal offence”, she asked English-speaking representatives to seek a general term that all Parties could use for conduct regarded as being in breach of their domestic law, without entering into the details of whether it represented a civil, administrative or criminal offence. Dr MORI (Japan) inquired about the exact meaning of “unlawful” and “serious criminal offence”, and the applicable penalties. The CHAIR said that the term “unlawful”, which broadly meant against the law, covered offences ranging from minor violations to more serious offences such as not paying taxes and even homicide. While the former carried administrative sanctions such as a fine, the latter were punishable by deprivation of liberty. Mr PADILLA (Philippines) said that it was his understanding that Parties were entitled to decide whether to classify instances of conduct of the kind listed in paragraph 1 as serious criminal offences in their domestic legislation, and that those not so classified would not be punishable by imprisonment or extradition, for example, under the provisions of the protocol. Whether they were committed intentionally or on a commercial scale was irrelevant. Mr DEMPSEY (alternate to Mr Leguerrier, Canada), noting the comment by the previous speaker and the proposal by India, said that the qualifiers “when committed intentionally” and “on a commercial scale” were merely indicators of what amounted to a very serious criminal offence, but it was for the Parties to decide which offences fell into that category. In the interests of consensus, he proposed that those qualifiers be removed from Canada’s proposal. Mr PADILLA (Philippines) fully supported the amendment proposed by Canada. Dr RANGREJI (India) joined the previous speaker in supporting the amendment. However, it seemed superfluous to require a sovereign State to classify as a serious offence a form of conduct already established as such according to its domestic law. He therefore appealed to Canada to consider the more direct and straightforward wording he himself had proposed earlier in the meeting. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, said that, provided the words “when committed intentionally” remained in paragraph 1, the European Community might be willing to agree to their removal from paragraph 2. However, he would need to consult colleagues before confirming any agreement to the deletion of “on a commercial scale” and, indeed, to Article 12 as a whole. Ms JAQUEZ (Mexico) supported the proposal by Canada but preferred to await the European Community’s comments to see which Party was proposing the most appropriate language. Meanwhile, the element of intentionality could be removed in order to give Parties greater freedom in drawing up the list. Mrs DEMUNI DE SILVA (Sri Lanka), supported by Mrs WONG Mee Ling (Malaysia), said that she could not agree to keeping the words “when committed intentionally” in paragraph 1. If a State decided to classify a particular form of conduct as an administrative rather than a criminal offence, therefore subject to administrative sanctions, the element of intentionality was irrelevant.
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Mr DEMPSEY (alternate to Mr Leguerrier, Canada) supported the comment by the representative of Sri Lanka. Intentionality might be a relevant characteristic for the serious criminal offences referred to in paragraph 2, but it was not required for the many regulatory offences listed in paragraph 1. Canada therefore urged colleagues to consider its original proposal for that paragraph. The CHAIR said that, as a former student of criminal law, he could only emphasize his earlier comment about a crime always involving an element of intentionality. A person charged with speeding, for instance, faced an immediate fine regardless of whether they had intended to exceed the limit. Merely committing an offence of that nature sufficed for a conviction. But nobody in his country, at least, could be sent to prison for a crime such as homicide without proof of intentionality. If the evidence showed the killing to have been carried out in self-defence, the accused would be cleared of any responsibility. Otherwise it would be a legal aberration, a throwback to a bygone age of criminal law. Mr MOHAMEDOUN (Mali) shared the view expressed by the Chair. Parties in the WHO African Region had discussed the matter and, after resolving their differences, agreed to deletion of the word “intentionally”. The principle of intentionality, even if not specifically mentioned in the protocol, was intrinsic to criminal law. Mr PADILLA (Philippines), referring to the comments by the Chair, said that some crimes did not involve an element of intentionality. He exemplified cases of death caused in road accidents through negligence, which was the opposite of intentionally. Hence, he reiterated his view that intent was a product of the mind, which could be difficult to prove, and that it should be for each Party rather than the protocol to decide whether to include the element of intentionality in determining what constituted a serious criminal offence. The CHAIR, agreeing with the previous speaker that a death in a motoring accident was not exactly homicide and carried a lesser punishment than murder with intent, urged Parties to return to the general topic. Mr PINTO NUNES (Brazil), supporting the comments by the Chair, said that intentionality was always considered a key element when classifying a particular form of conduct as a crime in Brazil. Mrs WONG Mee Ling (Malaysia), supporting the comments by the representative of the Philippines, emphasized that the words “when committed intentionally” should be removed. Malaysia must comply with its own legal system and it should be left to each Party to decide whether offences listed in paragraph 1 had to have been committed intentionally, or whether they were strict liability offences requiring no proof of intentionality. Dr TOESSI (Benin) pointed out that the focus of the current discussions was on illicit trade in tobacco products. Clearly, since every offence by manufacturers or purveyors involved in such trade must have been intentional, there was no need to put it in writing. Mrs ROBINSON (Seychelles) agreed with other speakers from the WHO African Region on the need to remove the word “intentionally”. She preferred to refer to strict liability offences and, even then, it should be left to each Party to decide which offences fell into that category. Meanwhile, “conduct” and “serious unlawful conduct” were unfamiliar concepts in Seychelles, as opposed to “acts” and “serious offences”, but her Party would consider the views of others before further decision.
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Mr KORKMAZ (Turkey) emphasized that proving intentionality in Turkish domestic law was important. Hence a transporter or retailer that might not know that the goods they shipped or sold were contraband or counterfeit should face only the most lenient of penalties. The words “when committed intentionally” should therefore not be removed. Dr MUÑOZ PORRAS (Chile) emphasized that, for the benefit of every Party’s understanding, the introductory language in paragraphs 1 and 2 must be as broad as possible. The term “unlawful conduct” covered criminal and other kinds of offences in every Party’s domestic law; the proposals by Australia and Canada should be approved; and the words “when committed intentionally” should be deleted. While Parties must, under paragraph 2, establish forms of conduct listed in paragraph 1 as serious criminal offences, they could also determine each to be a crime, which, in most Parties’ domestic legal systems, called for proof of intentionality. More importantly, the Committee must move on to set the criteria for assessing whether such conduct as intermingling tobacco with other products in a ship container progressing through customs, for example, was illegal; and whether Parties must consider legislative or other changes to prevent it. Mr MOSSOP (alternate to Ms Hefford, Australia) said that some offences such as mis-declaring of the kind set out in subparagraph 1(d) could conceivably be committed unintentionally. Parties could choose whether those were administrative or criminal, punishable by a fine, imprisonment or any other sanction. In the proposal by Canada for paragraph 2, however, each Party must establish the most serious unlawful forms of conduct as criminal offences. That would prove important when later articles came up for discussion. On the question of whether to bring intentionality, in determining serious criminal conduct, into paragraph 2, his Party could be flexible which was not the case for others. One solution might be for Parties, when establishing certain forms of conduct as criminal offences, to include intentionality in their own domestic legislation, in order to enact the protocol. Mr PINTO NUNES (Brazil) supported the use of the term “when committed intentionally” in paragraph 2. It was not necessary in paragraph 1 because some of the conduct was punishable by administrative or civil sanctions, which needed no evidence of intent in his country, at least. Canada had proposed deleting that term, leaving it to each Party to determine which conduct constituted a serious criminal offence in its domestic law. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, said that his Party would examine the matter further overnight. He tentatively proposed alternative wording for paragraph 2 to the effect that “Each Party shall determine the most serious unlawful conduct set out in Article 12.1 as criminal under its domestic law when committed intentionally”. Mr DLAMINI (Swaziland) said that his Party would need time to consider its position on the proposals. The CHAIR suggested that those Parties with the most entrenched views should meet overnight in smaller groups in an effort to reach consensus on whether to keep or delete the words “when committed intentionally” and thus finalize the introductory wording in Article 12. All Parties should examine the merged list in paragraph 1 and be prepared to determine which forms of conduct might constitute minor or more serious offences. The Committee could then move on swiftly to Part V. One representative had spoken of Parties each having to make the necessary legislative changes. The Committee’s discord over the introductory wording had stemmed from legal concepts that were hard to pin down because of differences in law and culture, which made consensus on a single concept hard to build. Reviewing the list in paragraph 1 would prove less arduous because the forms of conduct themselves were more objective. Resolving the matter of offences would facilitate dealing with others such as international cooperation and extradition. It was important to establish early and clearly the scope of the concepts so that subsequent articles remained consistent with, and Parties did not hold different positions on, what had been decided for Article 12. He urged the Committee to
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refrain at its next meeting from wide-ranging discussion on such matters as intentionality and to reach an agreement within the prescribed time. (For continuation of the discussion on Article 12, see summary record of the sixth meeting.)
The meeting rose at 17:55.
SIXTH MEETING Friday, 3 July 2009, at 10:20 Chair: Mr M. NAVARRETE (Chile)
DRAFTING AND NEGOTIATION OF A PROTOCOL ON ILLICIT TRADE IN TOBACCO PRODUCTS: Item 5 of the Agenda (Documents FCTC/COP/INB-IT/3/3, FCTC/COP/INBIT/3/INF.DOC./1, FCTC/COP/INB-IT/3/INF.DOC./2, FCTC/COP/INB-IT/3/INF.DOC./6 and FCTC/COP/INB-IT/3/INF.DOC./7) (continued) Part IV: Offences and sanctions (continued) • Article 12: Offences (continued) The CHAIR, inviting Parties to submit their proposals, requested that they set aside secondary concerns over wording and focus on matters of substance that would lead to a unanimously acceptable instrument. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, said that, in an effort to build consensus, he could accept the deletion of “when committed intentionally” in paragraph 1 subject to the words “under its domestic law” being replaced by “in accordance with its domestic law”, in line with the language proposed by the representative of Canada for paragraph 2. The European Community supported the proposal by Canada, but the reference to intentionality should be retained in that paragraph, and the word “serious” in “serious criminal offence” should be deleted. Furthermore, the conduct outlined in subparagraphs 1(f), (g) and (h) should be moved to a new paragraph 3; and “aiding” and “abetting” should be removed from subparagraph 1(i) and introduced into the new paragraph 3 or a new paragraph 4. Mr DLAMINI (Swaziland), speaking on behalf of the Parties in the WHO African Region, supported the amendment to paragraph 1 proposed by the European Community. However, he opposed the inclusion of the words “when committed intentionally” in paragraph 2 because not all of the forms of conduct listed in paragraph 1 required proof of intentionality, and Parties must be allowed to decide for themselves whether to treat them as criminal offences in their own jurisdictions. He therefore suggested that the language in paragraph 2 proposed by the European Community at the end of the previous meeting should be amended to read: “Each Party shall determine, in accordance with its domestic law, the most serious forms of unlawful conduct set out in paragraph 1 and establish that conduct as a serious crime or offence.” Mr HODO (Ghana), Dr MOUSSA (Niger), Mr PADILLA (Philippines), Ms WONG Mee Ling (Malaysia), Mr AL JEHANI (Saudi Arabia), speaking on behalf of the Parties in the WHO Eastern Mediterranean Region, and Mrs ROBINSON (Seychelles) supported the proposal by the European Community regarding paragraph 1, but agreed with the comment made by the representative of Swaziland on behalf of the Parties in the WHO African Region that paragraph 2 should not include the words “when committed intentionally”. Dr RANGREJI (India), speaking on behalf of the Parties in the WHO South-East Asia Region, and joining previous speakers in supporting the proposal by the European Community on paragraph 1, - 155 -
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suggested that the words “forms of” should be deleted in the proposal made by Swaziland on behalf of the Parties in the WHO African Region for paragraph 2. Ms LEI Zhao (China), supporting the proposal on paragraph 1 by the European Community, suggested deleting the second mention of the word “serious” in the proposal on paragraph 2 made by Swaziland on behalf of the Parties in the WHO African Region. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, insisted that the word “serious” in “serious criminal offence” should be deleted as it might imply an attempt to set a common level of penalty. The CHAIR noted that there appeared to be consensus on paragraph 1 and invited comment on the two versions of paragraph 2. Mr SAINT-DENIS (alternate to Mr Leguerrier, Canada) suggested, as a compromise, removing the words “when committed intentionally” from paragraph 2 and introducing a new paragraph 2bis, reading: “Parties that require the element of intentionality in respect of serious criminal offences referred to in paragraph 2 may apply that element in appropriate cases.” Mr DLAMINI (Swaziland), speaking on behalf of the Parties in the WHO African Region, suggested that the proposal by Canada should be amended to read: “may apply that element appropriately” instead of “in appropriate cases”. He was keen to retain both references to the word “serious” in paragraph 2 in order to emphasize the level of seriousness required for the offences in question to trigger international cooperation. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, said that provided Canada’s original proposal for paragraph 2 ended with the words “criminal offence” instead of “serious criminal offence” and Parties agreed to work together to introduce minimum safeguards for subsequent articles on international cooperation, the European Community would be willing to make a final concession and withdraw its proposal to keep the phrase “when committed intentionally” in paragraph 2. There would then be no need for a paragraph 2bis. Ms HACOHEN (Israel), referring to the proposed paragraph 2bis, said that if some countries required the element of intentionality to establish that a particular conduct was a criminal offence and others did not, there would no longer be a consensus as to which offences were extraditable. In the absence of that consensus, and given that domestic law in Israel, among other countries, insisted on dual criminality as a prerequisite for extradition, Article 33 would need an additional phrase, reading: “Those Parties that require dual criminality may refuse extradition where this requirement is not met.” Mr SAINT-DENIS (alternate to Mr Leguerrier, Canada) accepted the proposals put forward by the European Community; its willingness to refrain from insisting on inclusion of the words “when committed intentionally” in paragraph 2 would render Canada’s proposed paragraph 2bis redundant and it could therefore be deleted. As for the concern expressed by Swaziland on behalf of the Parties in the WHO African Region, even if the word “serious” was removed from the end of paragraph 2, international cooperation could be triggered by other terms such as “criminal offence” or “serious offence”, or by a set of criteria incorporated into Part V, in the articles dealing with mutual legal assistance or extradition. Responding to a request from the CHAIR, he said that he would be prepared to withdraw Canada’s proposal for a new paragraph 2bis. Mrs ROBINSON (Seychelles) said that the words “in accordance with their domestic law” in paragraph 2 already provided for Parties to determine what constituted a serious offence. She did not
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believe that the element of intentionality was required, but it could be added if necessary. She did not see the point of adding the proposed paragraph 2bis. Ms WONG Mee Ling (Malaysia) requested clarification from the representative of the United Nations Office on Drugs and Crime on the matter of dual criminality raised by the representative of Israel. Ms LEBAUX (United Nations Office on Drugs and Crime) said that extradition was subject to dual criminality and it was for each State receiving a request for extradition to assess whether the conduct in question was a criminal offence under its domestic law. In response to a query from Mr DLAMINI (Swaziland), speaking on behalf of the Parties in the WHO African Region, she said that the concept of serious crime under the protocol would not in itself trigger the provisions of the United Nations Convention against Transnational Organized Crime unless it was linked to the definition and scope set out in Articles 2(b) and 3.1(b) of that Convention, and concerned the four basic extraditable offences of money laundering, corruption, obstruction of justice and participation in an organized criminal group. Mr BURCI (WHO Legal Counsel), speaking at the request of the CHAIR, read out a proposal for paragraph 2 reflecting the compromise proposed by Canada and the European Community: “Each Party shall determine, in accordance with their domestic law, the most serious unlawful conduct set out in paragraph 1 and establish that conduct as a criminal offence.” Mr MOHAMEDOUN (Mali) said that the French translation of the proposal read out by the Legal Counsel gave the impression that all conduct set out in paragraph 1 was serious, which was not true in all cases. He suggested that it should be amended to read: “Each Party shall determine, in accordance with its domestic law, the most serious unlawful conduct among those defined in paragraph 1 and characterize them as serious criminal offences.” The CHAIR, responding to a question from Mrs ASIEDU (Ghana), said that it was proposed to delete the word “serious” from the phrase “serious criminal offence” in order to give Parties more freedom to determine the seriousness of an offence and the appropriate penalties. Mr SAINT-DENIS (alternate to Mr Leguerrier, Canada) said that the proposal read out by the WHO Legal Counsel should be amended to read: “in accordance with its domestic law”; that the proposal by Mali should read: “among those set out in paragraph 1”; and that he could accept the term “criminal offences” if it served to secure a consensus, although he was not sure whether deleting “serious” was a meaningful change. Mr MOSSOP (alternate to Ms Hefford, Australia) said that “serious criminal offence” was a definable term that could be used to set a minimum standard for a criminal offence and in connection with the criminal justice obligations later in the protocol, such as extradition and mutual legal assistance. Deleting the word “serious” would make it necessary to develop another regime for Part V, and he wondered whether the European Community had any ideas on the qualifiers it would include. It was hard to approve an article without knowing how it would work throughout the rest of the protocol, as all of the various provisions were interrelated. Mr DLAMINI (Swaziland), speaking on behalf of the Parties in the WHO African Region, asked why the word “serious” needed to be deleted. An offence must be of a certain level of seriousness in order to trigger international cooperation, mutual legal assistance and the provisions of the United Nations Convention against Transnational Organized Crime. Dr RANGREJI (India), speaking on behalf of the Parties in the WHO South-East Asia Region, said that he could agree, in a spirit of compromise, to support the proposals by Canada and the
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European Community, but suggested that the Committee consider wording similar to that which he had proposed the previous day: “Each Party shall determine, in accordance with its domestic law, the most serious unlawful conduct set out in paragraph 1 as a serious criminal offence” or “serious offence.” Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, said that he had been perfectly satisfied with the compromise text read out by the WHO Legal Counsel, but Parties had moved away from a position of near-consensus on the matter. In view of the apparent return to drafting, he wished to present another proposal: “Each Party shall determine, in accordance with its domestic law, which of the acts set out in paragraph 1 shall be considered as a criminal offence.” Ms HACOHEN (Israel), supporting the proposal by the European Community, suggested that it end with the phrase “and which of the said acts shall be considered as a serious criminal offence” so that Parties could choose between two categories of offences. Otherwise, Articles 30 and 33 would need to be amended because requests for mutual legal assistance or extradition at present were unlikely to be granted for de minimis offences punishable by sentences of less than one year. Mr MOHAMEDOUN (Mali) said that he supported the proposal by the European Community. Nevertheless, he also agreed with the comment made by Swaziland on behalf of the Parties in the WHO African Region on the importance of the seriousness of an offence as a trigger for the provisions of the United Nations Convention against Transnational Organized Crime. The CHAIR called on Parties to choose between the proposal read out by the WHO Legal Counsel and that of the European Community, as amended by Israel. Mr ZOUA (Cameroon) supported the proposal by the European Community, as amended by Israel. It was, in his view, a good basis for achieving a consensus. Mrs ROBINSON (Seychelles) said that, for the sake of consistency, she would prefer the word “acts” to be replaced by “conducts” in paragraph 1. The CHAIR noted that the Parties were unable to reach a consensus on account of semantics rather than differences over the substance of Article 12. Mr DLAMINI (Swaziland), speaking on behalf of the Parties in the WHO African Region, said that it was more than a matter of semantics, given that the lists originally contained in paragraphs 1 and 2 had been merged. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, said that he was disappointed at the failure to reach a consensus after he had exercised considerable discretion to accommodate the concerns of other Parties. He appealed to those Parties unable to accept the European Community’s proposal, which would have given them the opportunity to decide for themselves whether a particular conduct was a serious criminal offence in their domestic legislation, to review the proposal read out by the WHO Legal Counsel. Any further move away from either of those two options would compel him to reconvene formal consultations with his colleagues in the European Community. Mr BURCI (WHO Legal Counsel) read out the proposal as it stood, including the amendments by Canada and Mali: “Each Party shall determine, in accordance with its domestic law, the most serious unlawful conduct among those defined in paragraph 1, and establish that conduct as a criminal offence”.
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The CHAIR said that the proposal appeared to address the core concerns expressed by the Parties; it would leave them free to determine what constituted serious conduct and an appropriate response. Mrs ADEYEMO (Nigeria) supported the proposal by the European Community and suggested that the proposal by Israel should be amended to take account of instances of deliberate omission that aimed to facilitate a crime. Mr PADILLA (Philippines) said that the key question was whether categorizing a form of conduct as a criminal offence or a serious criminal offence would trigger the provisions for mutual legal assistance and extradition. That question remained unanswered. Mrs ROBINSON (Seychelles) asked whether she was correct in assuming that use of the word “unlawful” in paragraph 1, which she had approved even though that concept did not exist in her Party’s domestic law, meant that it was for each Party to decide whether the various forms of conduct constituted criminal, administrative or civil offences. Mrs ASIEDU (Ghana), speaking on behalf of the Parties in the WHO African Region, said that to describe the forms of conduct listed in paragraph 1 as unlawful raised the question of which of them could be considered a serious crime in accordance with the definition contained in paragraph 14 of Article 1. She therefore presented another proposal, reading: “Each Party shall determine, in accordance with its domestic law, any unlawful conduct set out in paragraph 1 as a serious criminal offence.” The CHAIR noted the use of the word “serious” as being the difference between the proposals by the Parties in the WHO African Region and the European Community. Dr TOESSI (Benin) said that gradually moving towards a consensus did not mean having to revisit every point covered since the start of the discussions. Parties should show the patience required to produce a document that would reflect every point of view. Mr MOSSOP (alternate to Ms Hefford, Australia) said that the text read out by the WHO Legal Counsel provided an acceptable compromise. Outstanding issues could be dealt with later. Dr RANGREJI (India), speaking on behalf of the Parties in the WHO South-East Region, supported the proposal made by Ghana on behalf of the Parties in the WHO African Region. It contained exactly the same wording as the proposal he had presented the previous day, which had subsequently been amended to reflect the concern expressed by Mali. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, supported the proposal by the Parties in the WHO African Region on the understanding that the word “serious” was to be deleted. Mrs ASIEDU (Ghana), speaking on behalf of the Parties in the WHO African Region, asked the European Community to reconsider its request to delete the word “serious”. Otherwise, it was hard to see how paragraph 2 would tie in with the definition of the term “serious crime” contained in paragraph 14 of Article 1, and how it would cater for the international aspects of the United Nations Convention against Transnational Organized Crime. The CHAIR said that he would suspend the meeting to allow the Parties in the European Community to consult on the proposal to delete the word “serious”. The meeting was suspended at 12:05 and resumed at 12:40.
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Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, said that his Party could accept the proposal by the Parties in the WHO African Region subject to it being amended to read: “Each Party shall determine, in accordance with its domestic law, which of the unlawful conducts set out in paragraph 1 shall be established as criminal offences.” Mrs ASIEDU (Ghana), speaking on behalf of the Parties in the WHO African Region, agreed with the proposal by the European Community but said that it should be further amended to read: “Each Party shall determine, in accordance with its domestic law, which of the unlawful conducts set out in paragraph 1 is a serious criminal offence.” Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, requested Parties in the WHO African Region to withdraw their proposal to include the word “serious” as that would lead to a debate on how to define the term “serious criminal offence” under the protocol; deny Parties the right to decide which conducts should be deemed administrative, civil or criminal offences; and undermine the aim of providing a platform for mutual international cooperation. Mrs ASIEDU (Ghana), speaking on behalf of the Parties in the WHO African Region, proposed that the Committee should move on to another agenda item and leave it to the regional groups to consider the question further; Parties in the WHO African Region would meet to discuss how it might accommodate the European Community’s concerns. Mr AL JEHANI (Saudi Arabia), speaking on behalf of the Parties in the WHO Eastern Mediterranean Region, supported the position of Parties in the WHO African Region with regard to retaining the word “serious”. Mr PINTO NUNES (Brazil) asked whether using the term “serious criminal offence” in paragraph 2 would trigger the provisions of the United Nations Convention against Transnational Organized Crime, in which case it would not be necessary to reproduce its provisions in the protocol. Ms LEBAUX (United Nations Office on Drugs and Crime) said that if the term “serious criminal offence” was linked to a definition identical to that of “serious crime” as set out in Article 2(b) of the United Nations Convention against Transnational Organized Crime, and if such an offence was transnational in nature and involved an organized criminal group, then its provisions would be triggered for States Parties both to that Convention and to the Framework Convention. She saw no need to reproduce the provisions of the United Nations Convention against Transnational Organized Crime in the protocol. The Parties might wish the protocol to make extradition or mutual legal assistance available for a broader range of offences than those falling within the scope of transnational organized crime. Dr RANGREJI (India), speaking on behalf of the Parties in the WHO South-East Asia Region, said that he would need to consult colleagues before giving a final decision on the matter. In principle, however, he supported the deletion of the word “serious”, reiterating his earlier comment that describing conduct as a criminal offence provided sufficient legal grounds for international cooperation. Mr BURCI (WHO Legal Counsel) read out the proposed text: “Each Party shall determine, in accordance with its domestic law, which of the unlawful conducts set out in paragraph 1 shall be established as a [serious] criminal offence.” The CHAIR, responding to the concerns of the Parties in the WHO African Region, said that international cooperation would be triggered not so much by the word “serious” in itself as by other elements such as the sanctions Parties decided to apply, under their domestic law and pursuant to Article 14, for offences that were considered the most serious.
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Mr DLAMINI (Swaziland), speaking on behalf of the Parties in the WHO African Region, requested time for further consultation before responding to the proposed text of paragraph 1. Mr PINTO NUNES (Brazil) said that, in the light of the clarification provided by the representative of the United Nations Office on Drugs and Crime, he supported the proposal by the European Community to delete the word “serious”. The CHAIR said that the opinion expressed by the representative of the United Nations Office on Drugs and Crime should be taken into account as it was the key to addressing the concern of the Parties in the WHO African Region as to whether the word “serious” would trigger international cooperation. He further hoped that the Committee would be ready to complete the discussion on Article 12 at its next meeting. (For continuation of the discussion on Article 12, see summary record of the seventh meeting.)
The meeting rose at 13:00.
SEVENTH MEETING Friday, 3 July, at 15:15 Chair: Mr M. NAVARRETE (Chile)
DRAFTING AND NEGOTIATION OF A PROTOCOL ON ILLICIT TRADE IN TOBACCO PRODUCTS: Item 5 of the Agenda (Documents FCTC/COP/INB-IT/3/3, FCTC/COP/INBIT/3/INF.DOC./1, FCTC/COP/INB-IT/3/INF.DOC./2, FCTC/COP/INB-IT/3/INF.DOC./6 and FCTC/COP/INB-IT/3/INF.DOC./7) (continued) Part IV: Offences and sanctions (continued) • Article 12: Offences (continued) The CHAIR, inviting the Committee to continue its consideration of Article 12, asked the Parties in the WHO African Region whether they had decided to accept the proposal to delete the word “serious” in paragraph 2. Mr DLAMINI (Swaziland), speaking on behalf of the Parties in the WHO African Region, reiterated their view that the word “serious” was needed in order to trigger international cooperation for extradition and mutual legal assistance, and the provisions of the United Nations Convention against Transnational Organized Crime. The Parties in the WHO African Region could not agree to that deletion until the Committee had dealt with Articles 29, 30 and 33. Meanwhile paragraph 2 should stay in square brackets. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community and responding to a request from the CHAIR, said that the European Community preferred to wait until the merged list in paragraph 1 had been examined in detail before presenting its proposal for a new paragraph 3 containing certain forms of conduct taken from that list, as it might need adjusting. The situation had changed, with the decision now left to Parties as to whether a particular form of conduct constituted a criminal or non-criminal offence, for example. The outstanding problems with paragraph 2 must meanwhile be resolved, and the European Community was willing to work closely to that end with Parties in the WHO African Region. The CHAIR took it that, in view of the comments made, the Committee would wish to move on to Part V and complete its consideration thereof before returning to Articles 12 and 16. It was so agreed. (For continuation of the discussion, see summary record of the eighth meeting.)
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Part V: International cooperation • Article 20: Information sharing: statistical data Dr MORI (Japan) requested that Article 20 be deleted since it appeared to duplicate Article 21 of the Framework Convention. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, asked whether the statistical data referred to in paragraph 3 concerned administrative or criminal aspects, and whether the data would be nominal or personal, which might give rise to data protection issues. Mr WALTON-GEORGE, speaking in his capacity as Chairperson of the Intergovernmental Negotiating Body, drew attention to the provision in paragraph 2 that only non-identifiable personal information would be included in the database. Despite referring specifically to subparagraph 1(a), it would be generally applicable because, as a rule, none of the items in subparagraphs 1(b) to (e) involved personal data. Mr SAINT-DENIS (alternate to Mr Leguerrier, Canada) asked with whom the Parties would be exchanging the information and on what basis. Paragraph 2 stated that it would be placed in a “secure, central, automated database, managed by X”, but it did not identify the receiving body, which might conceivably be different from “X”. Mr WALTON-GEORGE, speaking in his capacity as Chairperson of the Intergovernmental Negotiating Body, said that Parties would exchange the information with each other. Access to the database, and the task of providing the data, would be confined to the appropriate competent authorities. Paragraph 2 stated that the database would be “managed by X” because “X” could be a unit within the Convention Secretariat, for instance, or at the World Customs Organization. Most Parties to the Framework Convention were also members of that organization; it already acted as a clearing house; and it could carry out risk and trend analysis specific to illicit trade. Parties could, if they wished, restrict access to, and use of, the information, but that would need to be discussed as part of the current negotiation. Mrs ADEYEMO (Nigeria), speaking on behalf of the Parties in the WHO African Region, opposed the proposal by Japan to delete Article 20 as it would undermine international cooperation in the fight against illicit trade in tobacco products, not to mention tracking and tracing and supply chain control. Mr HOSHINO (Japan) explained that Japan had requested that Article 20 be deleted in order to avoid any duplication of language. The wording was of course not identical to that of Article 21 of the Framework Convention, but the content should be scrutinized and presented in more concrete terms. As the representative of Canada had pointed out, certain questions remained concerning the central automated database and Japan would require those to be clarified before taking a position on Article 20. Japan did not wish to obstruct the achievement of a consensus, but in agreeing to move on with the discussions, wished the Committee to take note of its reservations. Dr ABASCAL (Uruguay) said that Article 20 of the protocol and Article 21 of the Framework Convention did not overlap as they dealt with different areas of information exchange. Furthermore, answers to some of the questions raised by previous speakers could be found in Article 22 of the protocol, on confidentiality and protection of information. Mr WALTON-GEORGE, speaking in his capacity as Chairperson of the Intergovernmental Negotiating Body, and in reply to a question from Mr MOSSOP (alternate to Ms Hefford, Australia), said that exploratory discussions had taken place with the World Customs Organization in order to
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ascertain its level of interest before any extensive detailed planning. It was keen to become involved and if Parties supported that proposal, the technicalities could be explored with that Organization without significantly slowing the process. Mr MOSSOP (alternate to Ms Hefford, Australia) welcomed the prospect of working with a body possessing expertise and experience in such matters. Ms LEI Zhao (China) said that China regarded information sharing as essential to the combat of illicit trade in tobacco products, and was committed to establishing a central database. However, Parties should be free to decide what kind of information they exchanged with each other and whether through bilateral or multilateral agreements. In either situation, such information should concern only illicit trade. Mr FALL (Senegal) said that he shared the views of the Chairperson of the Intergovernmental Negotiating Body about drawing from other organizations to which States Parties to the Framework Convention already belonged. The World Customs Organization possessed a database on imports, exports, seizures and so on; it was managed directly through intelligence and anti-fraud offices across the globe from which the Intergovernmental Negotiating Body could obtain any data it needed. Furthermore, its annual customs and tobacco report contained records of both legal and illegal imports, together with information such as counterfeiting sites and smuggling routes. Dr ABASCAL (Uruguay) considered that it was appropriate to take advantage of the existing capacity, expertise and specialist knowledge of a body such as the World Customs Organization, which was qualified to gather and manage intelligence through the coordination of mechanisms already established in most parts of the world. Mr KORKMAZ (Turkey), supporting the comments by the representative of Uruguay and the Parties in the WHO African Region, said that as a representative of his national customs administration, he was familiar with parts of the World Customs Organization database; he had noticed that many cells were left empty because States were under no obligation to provide information relating to international or illicit trade in tobacco. Parties should be under that obligation. Distribution of printed copies of the database user interface would clarify the kind of information that it contained. The data should be made available to the competent authorities and law enforcement agencies in order to monitor illicit trade, conduct investigations and launch operations. Finally, he noted that paragraphs 1(a) to (e) made no specific reference to cross-border trade; and he suggested that paragraph 1(c) should be deleted. Mr PINTO NUNES (Brazil) said that Brazil was in favour of information sharing and was keen to provide the information set out in paragraph 1(a). However, gathering and uploading information was complex, and Parties needed to know how it should be done and whether by a department, an agency or law enforcement officers. He agreed with the representative of Turkey that it would be helpful to see the interface. Brazil also had concerns about access to that information and the security aspects, since it would be used, for example, in operations to combat smuggling. Furthermore, in Brazil’s experience of information sharing, the agencies that provided the data did not have access to the national system, which was unfair. The CHAIR acknowledged that countries less advanced in information technology would be disadvantaged in the complex processes of gathering and uploading information. However, reaching consensus in regard to implementation mechanisms and administrative procedures would have to be deferred and would probably require the assistance of technical experts. Meanwhile, he noted the very relevant concerns of Turkey and Brazil.
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Mr SAINT-DENIS (alternate to Mr Leguerrier, Canada), sharing some of the concerns raised by the representative of Brazil, said that paragraphs 1(a) to (e) should be examined in detail in order to assess the usefulness of data such as “value of seizure”, since goods seized in one country would not have the same value in another. Moreover, he asked whether any authority would be empowered to monitor and enforce the provision of data. Mr WALTON-GEORGE, speaking in his capacity as Chairperson of the Intergovernmental Negotiating Body, stressed that every obligation in the protocol, not just in Article 20, must be respected. Parties should decide whether to recommend the setting up of a monitoring body when considering Parts VI to X of the protocol. Mr FALL (Senegal) said that only national customs administrations could supply the statistical data and reliable information stipulated in paragraph 1(b), for example, by keeping daily, monthly and annual records of all goods imported and exported. That information could be shared only between competent authorities. The World Customs Organization database was updated electronically with information from its 164 Member States. Parties could gain access to it via the Customs Enforcement Network, and WHO could use it to keep track of, and gauge commitment to, the fight against illicit trade in tobacco products. The data fed into the system each year made it possible to discern trends, including countries of origin, and Parties might use it to request the World Customs Organization to launch an international “tobacco crackdown day”, involving customs administrations on every border. Mr PINTO NUNES (Brazil), questioning the wisdom of sharing investigative information, requested that the word “routing” in paragraph 1(a) be placed in square brackets, together with paragraphs 1(b), (d) and (e). Furthermore, Parties needed to determine what exactly was meant by the term “relevant information”. Mr KORKMAZ (Turkey), responding to an earlier comment by the representative of Brazil, said that any Party could have online access to the World Customs Organization database. Dr ABASCAL (Uruguay) said that the content of Article 20 appeared alien to him as his knowledge and experience centred on the health sector. The changing nature of international trade made it relevant for Parties to try to overcome their possible reservations about the enforceability of certain provisions in their domestic law or the management of confidential data, and to commit to sharing information required for effective action against illicit trade in tobacco products. Dr TOESSI (Benin), speaking as a doctor working on tobacco-related diseases, said that Benin had set up an interministerial system to curb illicit trade in tobacco products. However, the country was a hub of that trade, with tonnes of cigarettes permeating its porous borders via rivers, across lakes and so on. That information, whether gathered by civil society organizations or by health workers, should be passed on. Since the media regularly reported on the quantity and value of drugs seized by customs services, they should do the same for tobacco products. Mr SAMUDA (Panama), stressing the need to avoid duplication, said that the World Customs Organization already possessed effective tools and much of the information sought under Article 20. The Parties merely needed guidance on how to access it. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, agreed on the need to examine the content of paragraph 1 and to build on existing systems, as stated in paragraph 2. He firmly supported the idea of information sharing to combat illicit trade in tobacco products. There was wide support for the proposal in principle, and with Parties working together, the various sticking points must be resolved in order to remove obstacles to consensus in the equally sensitive areas of offences and sanctions.
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The CHAIR said that the present priority was to approve the overall framework. The Committee could return later to the meticulous work of scrutinizing the type of information to be shared. Ms MELKOM (Bolivarian Republic of Venezuela) said that the timing of a full disclosure of information was important. Sharing statistical data and information on national laws and regulations or on the methods and results of inspections would be extremely positive, although obviously details of an ongoing investigation could not be put into a database. If one Party suspected that products were being smuggled over the border from another, for example, the cooperation should be bilateral and summarized detail provided. The CHAIR, agreeing with the comment by the previous speaker, said that statistical data placed in the database would basically serve to characterize a crime and map out a campaign to combat it. When, for example, a major shipment of illicit goods was heading for a free-trade zone in a particular country, the information was usually communicated to the competent authorities, enabling them either to seize the consignment immediately or to track it to its final destination. Mr ZOUA (Cameroon) suggested that the scope of Article 20 should be broadened by amending the title to read: “Information sharing, including statistical data”, thereby allowing it to encompass other forms of information. The CHAIR said that Article 20 should be considered in conjunction with Articles 21 and 22 as those covered three different aspects of information sharing. • Article 20: Information sharing: statistical data (continued) • Article 21: Information sharing: operational data • Article 22: Information sharing: confidentiality and protection of information Mr FALL (Senegal), referring to the concern raised by the representative of Venezuela, said that Parties or customs unions could sign agreements for sharing of information that would enable them to track and intercept a suspect consignment anywhere at any time. Parties to such agreements could confine the data circulated to the quantity and value of the merchandise, its place of origin, and the final destination; full access to the data would be restricted to their competent authorities; and manufacturers would only be granted partial access to product and market information and only following a written request. Consequently, neither confidentiality nor the provisions of Articles 20, 21 and 22 would be affected. Parties could obtain specific information from customs services and other authorities that monitored the movements of goods within national borders. Difficulties might well arise. His country’s customs administration, for example, had no bilateral agreement with its counterpart in neighbouring Mauritania; it could not therefore launch a control and search operation to seize a consignment of counterfeit cigarettes that it had been tracking and that was destined for Mauritania from a third country. It could, however, alert the authorities there to act on arrival of the consignment. Such exchanges would enable detection and seizure of illicit tobacco products anywhere; the information should also be made available to Parties through a WHO database that would promote international cooperation under the protocol. Mrs ADEYEMO (Nigeria), noting that Article 21 required the Parties to exchange information “on their own initiative” and “subject to national law”, observed that the obligations did not appear as strong as in Article 20. The CHAIR said that Article 21 stipulated that the Parties must prove the requested information to be “necessary for the purpose of detection or investigation of illicit trade”, which made it stronger.
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Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, requested legal clarification as to whether the provisions in Article 21 conformed to international standards on data protection. The CHAIR noted the request by the European Community. Mr HOSHINO (Japan) said that his Party’s legislation would make it difficult to share the information stipulated in subparagraph (c) of Article 21. Regarding the introductory paragraph, he asked whether it was the Parties requesting or those providing the information that needed to give “due justification that such information is necessary”. He also suggested that the phrase “or manufacturing equipment” should be deleted in view of Japan’s reservations about such equipment being included in the scope of the protocol. The CHAIR replied that it was for the requesting Party to state why it needed the information. Dr RANGREJI (India), speaking on behalf of the Parties in the WHO South-East Asia Region, expressed concerns similar to those of Japan about subparagraph (c) of Article 21, and requested that it be placed in square brackets pending further consultation with Parties in his Region. The CHAIR said that the words “subject to national law” at the end of the introductory paragraph in Article 21 should meet the concerns of previous speakers. National law would of course prevail in cases where it did not authorize the disclosure of certain information. Mr SAINT-DENIS (alternate to Mr Leguerrier, Canada) said that, since the information sought under Article 21 seemed similar to what was normally made available through a request for mutual legal assistance, there might be some overlap with Articles 30 and 31. Mr MOSSOP (alternate to Ms Hefford, Australia), supporting the statement by the representative of Canada, suggested that it might be helpful, though not strictly necessary, to place the words “subject to national law” more prominently at the beginning of Article 21, after “The Parties shall,”. Mr LONGOLOMOI (Kenya) said that information sharing of the kind described by Senegal was also practised in Kenya. The World Customs Organization Regional Intelligence Liaison Office in Nairobi supported States in the Region by acting as a clearing house for information on fraud and issuing alerts when illicit cargoes were heading in their direction. Articles 20, 21 and 22 would help strengthen the tracking and tracing system, and enable a Party to request and obtain information from others on quantities of goods leaving their territory in order to detect and prevent dumping, for example. Those Articles must therefore be accepted without change, and the provisions on information sharing, which was vital, should not be diluted. Mr DLAMINI (Swaziland), said that he saw no contradiction between Articles 20 and 21. They were indeed complementary, setting out what Parties should do with the information they sought to share. All three Articles on information sharing must be retained. The CHAIR invited the representative of the World Customs Organization to respond to the questions on the structure and modus operandi of her Organization’s database, and how countries, customs administrations and others used it to share information. Ms MENON (World Customs Organization) explained that customs offences, seizures and other relevant data were entered into the Customs Enforcement Network by a contact point in each national customs administration. Customs officers around the world had permanent direct access to it. Meanwhile, a project was nearing completion to set up a system of networks for national customs
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enforcement. Each administration would have its own secure database and use it to share information with others, bearing in mind that all such exchanges, and the databases themselves, would remain subject to national law. In reply to Mr KORKMAZ (Turkey), she said that data input by Member States at present was voluntary. Mr KORKMAZ (Turkey) reiterated that much of the World Customs Organization database concerning items other than drugs had been left empty because States were not compelled to enter relevant information. The problem could be avoided under the protocol by making such data entry compulsory. Ms MENON (World Customs Organization) said that the information placed in the system was meant to cover drugs, counterfeiting and tobacco. Although that process remained voluntary, Member States were encouraged to provide the Customs Enforcement Network and the Regional Intelligence Liaison Office with as much information as possible, which the World Customs Organization used as a basis for its annual reports on drugs, counterfeiting and tobacco. Dr MORI (Japan), expressing Japan’s concern that the language in paragraph 2 of Article 22 seemed weaker than in paragraph 5 of Article 20, suggested that the words “for restricted use” in the latter could be included in the former. The CHAIR observed that the wording and rationale of paragraph 2 of Article 22 appeared more relevant. Nevertheless, Japan’s concern would be noted and considered at a later stage. Ms MELKOM (Bolivarian Republic of Venezuela), observing that in her country the word “intimidad” (for “privacy” in the Spanish version) was inappropriate, suggested that the words “and privacy” in paragraph 2 of Article 22 should be deleted. Mr PINTO NUNES (Brazil) said that Brazil’s concerns about potential confidentiality issues in paragraph 1 of Article 20 would be resolved by removing the square brackets in the introductory paragraph. The CHAIR suspended the discussion on Articles 20, 21 and 22. • Article 23: Assistance and cooperation: training, technical assistance and cooperation in scientific, technical and technological matters The CHAIR invited comments on Article 23, which sought to improve international cooperation in technological and scientific capacity building. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community and supported by Mr SAINT-DENIS (alternate to Mr Leguerrier, Canada) and Mr HOSHINO (Japan), suggested that the words “endeavour to” should be inserted in all three paragraphs of Article 23 after the opening “Parties shall ”. Mr FALL (Senegal) urged caution in considering the European Community’s suggestion. Parties were already under no real obligation to provide support for capacity building and training to those lacking the means or expertise. Besides, the Parties were not being asked to do so alone as they would have the backing of international organizations. Inserting the word “endeavour” in Article 23 would be contrary to a central theme of the Articles in Part V of the protocol, namely the promotion of international cooperation. It was impossible to cooperate and to endeavour to cooperate at the same time. If the suggestion was accepted for Article 23, it should also, for the sake of consistency, be applied throughout the rest of Part V.
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Dr TOESSI (Benin), making a plea on behalf of Africa, said that it did little for a continent already oppressed by its disease burden and reaching out to developed countries for support, to hear that those partners would merely “endeavour” to cooperate and not to know when the cooperation and support would materialize. Such a reservation would be understandable from the tobacco industry itself, but was inappropriate from those announcing their intention to lift Africa, and poor countries in general, out of poverty. The CHAIR said that he understood the concern expressed by the representative of Benin. He recalled, however, that the Parties had all come to the meeting with a will to cooperate and provide support. Laws might provide means and impose obligations, but those were worthless in the absence of such a will. Besides, whatever wording was used was not set in stone. He did not see the amendment suggested by the European Community as an attempt to avoid an effort and commitment to support, but as a means of achieving the stated objective. Mr BOUCHEDOUB (Algeria) fully supported the comments made by the representatives of Senegal and Benin, and suggested that in order to strengthen regional cooperation, the opening sentence of paragraph 1 should be amended with the insertion of “and regional” before “organizations”. Mr ZOUA (Cameroon), aligning Cameroon with the statements by previous speakers from the WHO African Region, said that the implications of the amendment proposed by the European Community, a long-standing development partner, were that cooperation was not a binding obligation. Parties should, in the interests of public health in Africa and the rest of the world, make a firm commitment to cooperation. He therefore suggested replacing “endeavour to” with “make a commitment to”, or some other wording between the two extremes. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, said that the European Community had intended its proposal as a commitment by the Parties to achieving the stated objectives, with the proviso that they might not be able to guarantee results. Apologizing for any misunderstandings, he suggested that the wording might be changed from “The Parties shall” to “The Parties may”. Dr TOESSI (Benin) urged Parties to work together to find the most appropriate wording and reach a consensus. Mrs ADEYEMO (Nigeria) said that the original wording of Article 23 was satisfactory; inserting the word “endeavour” or, more contentiously, “may” would dilute a commitment; it was the degree of bilateral and multilateral cooperation under the agreements stipulated in paragraph 2 that would dictate achievement of the goals set out in paragraph 1. The proposal by Algeria was therefore unnecessary. Mr FALL (Senegal), speaking on the behalf of the Parties in the WHO African Region and supported by Mr MOHAMEDOUN (Mali), said that any amendment to Article 23 was unacceptable as it was tied to Article 22 of the Framework Convention. Essentially, “cooperation” already implied a voluntary, not a binding, commitment to providing technical assistance to Parties with capacitybuilding needs. He did not see why the European Community, supported by Canada and Japan, should be pressing for an amendment that would dilute the intended outcomes. Mr HOSHINO (Japan) said that Japan supported the European Community proposal since it could not support paragraph 2. Japan could not provide a guarantee to enter into every bilateral, multilateral or other agreement proposed. Only Japan’s National Diet could decide whether a binding treaty would be signed. His Party acknowledged the need to provide cooperation and technical support to countries that required it, and was not seeking to avoid its obligations.
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Mr ALBUQUERQUE E SILVA (Brazil), supporting the position of the Parties in the WHO African Region, urged the European Community to consider the need to keep the protocol consistent with the Framework Convention. Article 22 of the latter set out a commitment: that “The Parties shall cooperate” with a view to achieving a range of objectives. He saw no reason to weaken Article 23 of the protocol by using the wording “The Parties shall endeavour to” or, worse, “may cooperate”. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, in response to Brazil, drew attention to the words “as mutually agreed” in paragraph 1 of Article 22 of the Framework Convention. As a possible way forward, and to remain consistent with the Framework Convention, he withdrew the European Community’s proposal and suggested that the words “as mutually agreed” be inserted after “to achieve the objectives of this Protocol” in paragraph 1. Meanwhile, the language of paragraph 2 needed greater flexibility to allow for the fact that decisions by governments to enter into bilateral agreements were not made in an international instrument. Mr SAINT-DENIS (alternate to Mr Leguerrier, Canada) recalled that the protocol sought to expand and improve on provisions contained in Article 15 of the Framework Convention. The Committee was discussing technical assistance and cooperation when, as correctly observed by Parties in the WHO African Region and Brazil, Article 22 of the Framework Convention already contained clear and comprehensive language on those matters. Article 23 of the protocol should perhaps simply be deleted. Mr BURCI (WHO Legal Counsel) said that the intention in drafting Article 23 had probably been to add substance to paragraph 6 of Article 15 rather than merely duplicate Article 22 of the Framework Convention. Mr DLAMINI (Swaziland), commending the European Community on its flexibility with a view to achieving consensus on paragraph 1, said that, since assistance and cooperation were commonly understood to be voluntary undertakings, the point needed no further emphasis. The CHAIR took it, in the absence of any objections, that the Committee wished to approve paragraph 1 of Article 23. It was so agreed. Mr HOSHINO (Japan) reiterating Japan’s position on entering into “bilateral, multilateral or any other agreements” without the endorsement of Japan’s National Diet, requested that those words in paragraph 2 be preceded by “The Parties shall endeavour to”. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community and supported by Mr HOSHINO (Japan) and Mr FALL (Senegal), suggested that paragraphs 2 and 3 should, drawing on the language of paragraph 6 of Article 15 of the Framework Convention, start with the words “The Parties shall, as appropriate, ”. Mr PADILLA (Philippines) said that adding the words “as appropriate” to paragraph 1 would make the provisions less binding than in every other article in Part V of the protocol. Recalling the comment by Senegal, he suggested that, if those words were added to paragraph 1, the same amendment should be made throughout Part V. Dr RANGREJI (India), speaking on behalf of the Parties in the WHO South-East Asia Region, said that he saw the logic in the comment by the Philippines. If “as appropriate” was used with respect to bilateral and other capacity-building agreements then similar language should be used for more onerous obligations in Articles 20, 21, 22 and 23.
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Mr FALL (Senegal) said that paragraph 2 could be deleted as it contained essentially the same conditions as paragraph 1. Mr LONGOLOMOI (Kenya) said that “as appropriate” expressed optionality and could be removed. Mrs ADEYEMO (Nigeria) said that it was inconsistent to use “as appropriate” in paragraphs 2 and 3 and “as mutually agreed” in paragraph 1. The CHAIR urged the Parties to set aside differences over points of wording and seek to achieve consensus on all the obligations, written and implied, by which they would be bound under the protocol and the overarching Framework Convention. Mr PADILLA (Philippines) said that a sign of mutual trust among the Parties would be to exclude the qualifying language and maintain the original Chairperson’s text for Article 23. Providing assistance and cooperation to developing country Parties should be as strong an obligation as any under Articles 21 and 22. Mr ALBUQUERQUE E SILVA (Brazil) said that Brazil could accept the use of “as appropriate” in paragraph 3. However, if Brazil, China and India, three of the world’s largest tobaccoproducing countries, found the stronger language in the original text perfectly acceptable, he saw no reason why others should wish to weaken it. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, said that the European Community would carefully examine paragraph 3 in the light of the comment by Brazil. The tone of the language in paragraph 2 would require attention: it had been necessary because of the legal aspects of a multilateral protocol stipulating bilateral or other agreements between individual States, but was not an attempt to avoid a commitment. Ms LEI Zhao (China), concurring with the Parties in the WHO African Region and the Philippines, said that China could accept “as appropriate” in paragraph 2 of Article 23 provided that it was also added to the introductory phrase in Articles 20 and 21, which would read: “The Parties shall, subject to national law, and where as appropriate”. The CHAIR, noting that there appeared to be a consensus on paragraph 2 of Article 23 and, bearing in mind the views expressed on bilateral and multilateral agreements, said that he took it that the Committee wished to approve paragraph 3 of Article 23, as a whole, as amended. It was so agreed.
The meeting rose at 18:05.
EIGHTH MEETING Saturday, 4 July, at 10:30 Chair: Mr M. NAVARRETE (Chile)
1.
DRAFTING AND NEGOTIATION OF A PROTOCOL ON ILLICIT TRADE IN TOBACCO PRODUCTS: Item 5 of the Agenda (Documents FCTC/COP/INB-IT/3/3, FCTC/COP/INB-IT/3/INF.DOC./1, FCTC/COP/INB-IT/3/INF.DOC./2, FCTC/COP/INBIT/3/INF.DOC./6 and FCTC/COP/INB-IT/3/INF.DOC./7) (continued)
Part V: International cooperation (continued) • Article 24: Assistance and cooperation: investigation and prosecution of offences The CHAIR invited the Committee’s comments on Article 24 of the draft protocol on illicit trade in tobacco products. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, suggested that the words “and in accordance with national law” be added after “measures, where appropriate,” in the first line of paragraph 1; and that the penultimate line of paragraph 2 be amended to read: “designated authority/authorities to serve”. Mr HOSHINO (Japan) requested that the references to manufacturing equipment be deleted in paragraphs 1 and 2, in keeping with Japan’s position that such equipment should not be included in the scope of the protocol. Dr MUÑOZ PORRAS (Chile) said that the indefinite article “a” before “designated” in the penultimate line of paragraph 2 should be placed in square brackets in view of the European Community’s proposal to insert the plural “authorities”. Dr RADA ESCOBAR (Colombia), referring to the Spanish version of paragraph 1, expressed a preference for “cuando sea apropiado” as a rendering of “where appropriate”, rather than “cuando así proceda”. Mr MOHAMEDOUN (Mali) suggested that paragraph 2 be amended to read: “shall consider the establishment or designation of an authority/authorities to serve”. Parties should be given the option of designating an existing authority instead of having to establish a new one. The CHAIR suggested that the proposal by the representative of Mali should be amended to read: “shall consider the establishment or designation of authorities to serve”; and that the words “or manufacturing equipment used in the manufacture of tobacco products” in paragraphs 1 and 2 should be placed in square brackets to reflect the concerns of Japan. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, explained that the proposal to use both “authority” and “authorities” had been intended to cater for Parties with a federal system, which might need to designate several regional or local bodies. He nevertheless supported the
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suggestion by the Chair and furthermore requested that the words “in consistency with its national legal system” be added to the end of paragraph 2, after “and with other Parties”. Mr LEGUERRIER (Canada), supported by Mrs DEMUNI DE SILVA (Sri Lanka), questioned the need for the additional wording proposed by the European Community since paragraph 2 already contained the phrases “where permitted under domestic law” and “within the conditions prescribed by its domestic law”. Furthermore, it might avoid confusion to split that paragraph into two, with the new one beginning “The Parties shall consider the establishment or designation”. Mr LONGOLOMOI (Kenya) said that he had reservations in regard to the proposal by the representative of Canada as the issues dealt with in paragraph 2 were interrelated. As to the request by the representative of Japan, references to manufacturing equipment should not be deleted in paragraph 1 or 2. Since the focus was on equipment used for illicit rather than legal purposes, he suggested that the wording be amended to read: “illicit trade in tobacco, tobacco products and manufacturing equipment”. Finally, the words “where appropriate” weakened paragraph 1 and should be deleted, with the beginning of the paragraph amended to read: “The Parties shall take appropriate measures to strengthen cooperation”. Mr DLAMINI (Swaziland), concurring with Kenya, said that Swaziland could not accept the deletion of either reference to manufacturing equipment in Article 24. Meanwhile, the word “shall” appeared to be missing from the beginning of paragraph 1, which should read: “The Parties shall agree to take”. Dr TOESSI (Benin) said that the wording of the reference to manufacturing equipment proposed by the representative of Kenya was consistent with the language approved in previous articles of the protocol. Mrs ROBINSON (Seychelles) said that the new paragraph proposed by the representative of Canada should begin with wording similar to that of paragraph 2: “The Parties shall ensure the establishment”. The CHAIR said that, in the absence of any further opposition, he took it that the Committee wished to approve paragraph 2, as amended. It was so agreed. • Article 25: Protection of sovereignty Mr ZOUA (Cameroon) suggested that the term “non-intervention” in paragraph 1 should be replaced by “non-interference”, as intervention had much more to do with physical than with legal aspects; and that the words “by its domestic law” at the end of paragraph 2 should be replaced by “as specified in its domestic law”. Dr RANGREJI (India), supported by Mr ALBUQUERQUE E SILVA (Brazil) and Ms JAQUEZ (Mexico), said that for the sake of consistency Article 25 should remain unchanged. The language was identical to that agreed for Article 4 of the United Nations Convention against Transnational Organized Crime, and consistent not only with customary international law on the subject but also with the Charter of the United Nations. Ms HACOHEN (Israel), observing that legislation in Israel allowed the authorities to exercise jurisdiction and perform functions in certain specific cases but did not specify that any such jurisdiction or functions were reserved exclusively for them, requested that the words “as specified in its domestic law” in paragraph 2 be deleted or replaced by “as per international law”, for example.
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Mr ZOUA (Cameroon) agreed, at the request of the CHAIR, to withdraw both his proposals. Mrs ADEYEMO (Nigeria) requested clarification from the WHO Legal Counsel on what would happen if a State affected by illicit trade at the domestic level in a neighbouring State was prevented from pursuing the perpetrators there on the grounds that it would infringe the principle of “nonintervention in the domestic affairs of other States” under paragraph 1. She asked where the line was drawn between one State’s domestic affairs and a transnational crime. Mr BURCI (WHO Legal Counsel) said that the answer lay in the protocol itself. A Party facing the injurious effects of unlawful forms of conduct in a neighbouring State could seek to curb them through recourse to Article 12, which criminalized certain conduct, to the articles on international cooperation in Part V, and ultimately to Article 39 on the settlement of disputes. Article 25 did not deny the international relevance of illicit activity at the domestic level. It was simply a safeguard clause referring back, as noted by India, to language in the Charter of the United Nations. Mr KARRAGI (Iraq) suggested that the title of Article 25 should be amended to read: “Respect for sovereignty”. Mr ZOUA (Cameroon), further to the proposal by the representative of Iraq, said that it might be wiser to entitle the Article “Respect for and protection of sovereignty”, in order to meet the concerns of all Parties. Dr RANGREJI (India), supported by Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, said that “Protection of sovereignty” was perfectly adequate on its own. It was the same title as had been agreed for Article 4 of the United Nations Convention against Transnational Organized Crime. Ms HACOHEN (Israel) requested that the phrase “by its domestic law” in paragraph 2 be deleted or replaced because Israel could not rewrite its law to specify what jurisdiction and functions were to be reserved exclusively for its authorities. Responding to a comment by Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, she said that Israel had indeed agreed to identical language in signing and ratifying the United Nations Convention against Transnational Organized Crime, but that it had been a mistake and should not at present be seen as an estoppel. The CHAIR said that, in the absence of any objection, he took it that the Committee agreed to approve Article 25, taking note of the proposals for the title and placing the words “by its domestic law” in square brackets to reflect the concerns of Israel. It was so agreed. • Article 26: Jurisdiction Mr FALL (Senegal) requested clarification from the WHO Legal Counsel on the thinking behind subparagraph 1(b) and how the competence of the State could be exercised in that respect. Mr BURCI (WHO Legal Counsel) said that it was a common clause in international law, which had long regarded ships and aircraft as parts of the territory of the flag State, thereby allowing that State to exercise jurisdiction over offences committed on board those vessels, including the transportation of contraband goods. Mrs ROBINSON (Seychelles) said that the clarification by the WHO Legal Counsel did not take account of the provisions of the United Nations Convention on the Law of the Sea, which allowed a coastal State to exercise criminal jurisdiction aboard a ship passing through its territorial sea. Given
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the violence and other problems faced by Seychelles in connection with the many ships entering its territorial sea each day, the opening words of subparagraph 1(b), “the offence is committed on board a vessel that is flying the flag of that Party”, should be placed in square brackets. Mr MOHAMEDOUN (Mali), acknowledging the link between the provisions in subparagraph 1(b) and international law, as mentioned by the Legal Counsel, said that those provisions should remain in Article 26. Alternatively, a reference should be inserted to Article 39 of the protocol, on settlement of disputes. He further suggested that subparagraph 2(c)(i) should refer to both paragraphs 1 and 2 of Article 12. Mrs ADEYEMO (Nigeria), recalling that the forms of conduct listed in paragraph 1 of Article 12 were no longer to be established as “criminal” but as “unlawful”, asked whether paragraph 1 of Article 26 should be amended accordingly, and whether the protocol contained any other provisions elsewhere for criminalizing the types of conduct in question since Article 12 was no longer to serve that purpose. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, said that Article 26 was linked to Article 12 and that his Party would have difficulty in discussing it before the Committee had completed its consideration of the latter Article. The CHAIR said that he believed the time had come to return to Article 12 and finalize the concept of what constituted a criminal offence. The Committee could move on to Article 27 but, as observed during its earlier consideration of Article 12, unless the last remaining problem preventing it from reaching consensus was resolved, namely whether to remove the word “serious” from “serious criminal offence” in paragraph 2 of Article 12, progress on other articles in Part V of the protocol would be hindered. He therefore suggested that the meeting should be suspended to allow the Parties in the WHO African Region to consult with a view to reassessing their refusal to countenance the deletion of that word. It was so agreed. The meeting was suspended at 11:25 and resumed at 11:45. Part IV: Offences and sanctions (continued from the seventh meeting) • Article 12: Offences (continued from the seventh meeting) Mr DLAMINI (Swaziland), speaking on behalf of the Parties in the WHO African Region and supported by Mrs ROBINSON (Seychelles), said that the Parties had decided to stand by their original position in favour of keeping the word “serious” in paragraph 2 so as to trigger the provisions of the United Nations Convention against Transnational Organized Crime in the area of mutual legal assistance. Given the importance of having that option, in the light of the shortcomings of the system established under Article 30 of the protocol, paragraph 2 should remain in square brackets pending further deliberations at a later date. Mr PADILLA (Philippines) supported the position taken by the Parties in the WHO African Region both for the reasons given and because “serious” was the best adjective to distinguish between the criminal, administrative and civil offences covered by “unlawful conduct” in paragraph 1. Mrs ADEYEMO (Nigeria) said that the Parties in her Region had been determined to keep the word “serious” in paragraph 2 because paragraph 1, the hub of the protocol, had been so weakened by the decision to describe the forms of conduct listed therein as “unlawful” instead of “criminal”.
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(Resumed below, following discussion of Articles 31, 32 and 33) Part V: International cooperation (resumed) • Article 27: Joint investigations Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, fully supported Article 27 as it stood. Dr MORI (Japan) requested that Article 27 be deleted on the ground that joint investigations should be conducted locally, through bilateral cooperation, and not under the protocol. Mr DLAMINI (Swaziland), expressing support for the view of the representative of the European Community on Article 27, said that Swaziland would have preferred to have the word “consider” removed from the phrase “Parties shall consider concluding”. He further noted that that phrase seemed to meet the concern expressed by the representative of Japan. Mr HOSHINO (Japan) explained that Japan found it very difficult to accept Article 27 since its legal system did not, as a matter of principle, permit investigations by the authorities of a foreign State on Japanese territory. Japan agreed to keep the Article as it stood provided that the Committee took note of its strong reservations and the fact that it reserved its position pending further discussion at a later date. The CHAIR, supported by Mr MOHAMEDOUN (Mali), said that Japan’s concern also appeared to be covered by the last sentence of the paragraph: “The Parties involved shall ensure that the sovereignty of the Party on the territory of which such investigation is to take place is fully respected”. He nevertheless suggested that Article 27 should be approved as it stood yet placed in square brackets to reflect the concern of Japan. It was so agreed. • Article 28: Law enforcement cooperation Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, fully accepted Article 28 as it stood, bearing in mind that legal clarification would be required at some stage to confirm that it complied with international standards of data protection. The CHAIR said that, in the absence of any objection, he took it that the Committee wished to approve Article 28. It was so agreed. • Article 29: Mutual administrative assistance Mr GRÖNLUND (Sweden), speaking on behalf of the European Community and supported by Mr LEGUERRIER (Canada), supported the content of Article 29, with the exception of subparagraph (d), which should be deleted. Once again, confirmation would be required that it complied with international standards of data protection. Mr HOSHINO (Japan) requested that the words “Consistent with their respective domestic legal and administrative systems,” be added before “Parties shall provide” at the beginning of Article 29, in keeping with its position at previous meetings of the Intergovernmental Negotiating Body.
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Supported by Mr KANG Nam-il (Republic of Korea), he said that it should be left to individual States to decide whether to lend administrative assistance, given the sensitivity of some types of information and forms of cooperation. Mr DLAMINI (Swaziland) said that he could not see why the European Community wished to delete subparagraph (d) of Article 29. Swaziland approved of the Article as it stood, and requested the Intergovernmental Negotiating Body to consider setting up a working group to recommend provisions for the requisite information sharing. Dr ABASCAL (Uruguay) supported the proposal by the European Community to delete subparagraph (d) as its scope was so broad that it might affect the rights of persons “suspected of being about to commit” an offence listed in Article 12.1. Bringing proceedings against citizens on such grounds could lead to legal disputes between countries. The CHAIR agreed that it was a complex matter, bearing in mind that criminal law considered a person innocent until proven guilty. It involved sensitive information which, if leaked, might be highly damaging for the individuals concerned and each country took special measures to protect such data. There consequently seemed to be reasonable grounds for concern about subparagraph (d). Mrs ADEYEMO (Nigeria) said that subparagraph (d) should be retained as it tied in with forensic analysis, which determined the illicitness of the trade in tobacco and tobacco products. If it was deleted, other provisions that concerned forensic analysis or joint investigations should be removed from the protocol as well. Mr PINTO NUNES (Brazil) said that Brazil supported the proposal by the European Community and could accept the amendment suggested by the representative of Japan. Dr RANGREJI (India), speaking on behalf of the Parties in the WHO South-East Asia Region, supported Article 29. He did not see why other Parties should object to subparagraph (d) when they considered conspiracy, which according to his country’s laws was regarded as an attempt by a legal person to plan, commit or merely intend to commit an offence, to be a substantive offence under Article 12.1(h). Dr TOESSI (Benin) believed that subparagraph (d) must remain in Article 29 as it opened the way for dialogue between two States with a view to dissuading potential offenders from following an intended course of action. In other words, it tied in with other provisions in the protocol aimed at deterring and, ultimately, eliminating illicit trade in tobacco and tobacco products. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, explained that the European Community had requested the deletion of subparagraph (d) because some of the offences listed in Article 12.1 were criminal offences. Those could never be subject to mutual administrative assistance, not even in the framework of the reference document used to draft Article 29 by the Chairperson of the Intergovernmental Negotiating Body, namely the World Customs Organization’s Johannesburg Convention. The European Community fully supported the tone of the Article’s introductory part. If subparagraph (d) was not to be deleted, however, it would need to be redrafted since, even with the additional wording suggested by the representative of Japan, it imposed a strong obligation on Parties to provide the specified information. Ultimately, the only aim of the proposal had been to ensure that the Article complied with international law. Dr WIDAD YOUSIF (Sudan) said that the main problem with subparagraph (d) lay in the word “suspected”. People were innocent until proven guilty, and merely suspecting them of committing a crime did not constitute sufficient grounds for bringing them to justice.
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Mr MOHAMEDOUN (Mali) suggested it might facilitate consensus on Article 29 if the provisions in subparagraph 1(c)(i) of Article 28, as well as in Articles 30 and 31, were examined to determine whether they covered the elements of cooperation that would be removed by deletion of subparagraph (d). Mrs ROBINSON (Seychelles) said that subparagraph (d) should remain in Article 29 as the information in question would serve to further the “prevention, detection, investigation, prosecution and combating” of illicit trade in tobacco and tobacco products. Dr MOUSSA (Niger) said that he agreed with the comment by the representative of Seychelles. Parties needed to share information on natural or legal persons known to have committed offences so as to be able to take measures to prevent them from continuing to offend at the domestic level. He suggested that the words “natural or legal” be inserted before “persons known to have” at the beginning of subparagraph (d); and deleting “or suspected of being about to commit such an offence” at the end, given that the Committee had already agreed to delete the term “when committed intentionally” in Article 12.1. Mr AL-JAHDAMI (Oman), aligning himself with the other speakers in favour of keeping subparagraph (d) as it stood, supported the proposal by the representative of Niger to delete the words “or suspected of being about to commit such an offence”. Information on offenders must be shared but a person must be considered innocent until proven guilty. Article 29 appeared to provide sufficient safeguards, such as deeming the information in question to be “confidential and for restricted use”. Dr ABASCAL (Uruguay) said that, should it decide to keep subparagraph (d) as it stood, the Committee would have to approve the proposal by the representative of Japan. Uruguay would find it hard to agree to share information on the grounds that a person was suspected of “being about to commit” an offence. The CHAIR, summing up the two opposing positions on subparagraph (d), asked whether the Parties could agree to keep it as it stood and to approve the proposal by the representative of Japan, which would allow them to decide whether they were in a position to provide the relevant information. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, stressed that, if subparagraph (d) was not to be deleted, the European Community would reserve the right to propose additional safeguards for inclusion in the proposal by the representative of Japan, which, given the quality of the language drafted by the Chairperson of the Intergovernmental Negotiating Body, would be highly regrettable. Besides, the content of subparagraph (d) was, as suggested by the Chair, covered by Article 28, which the Committee had approved by consensus, and any overlapping would be inappropriate. Mrs ROBINSON (Seychelles), in response to a query by the CHAIR, said that the language in subparagraph (d) was clearer and more specific, and that she stood by her position that it should be retained. The CHAIR said that Article 29 would remain as it stood, with both subparagraph (d) and the proposal by Japan placed in square brackets to reflect the reservations expressed by the European Community. • Article 30: Mutual legal assistance Mr DEMPSEY (alternate to Mr Leguerrier, Canada), while supporting the principles set out in paragraph 1, said that use of the word “victim” in paragraph 3 exemplified why it might be inappropriate for a protocol on illicit trade in tobacco and tobacco products to use language from the
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Convention on the Safety of United Nations and Associated Personnel, an international instrument dealing with the crimes of murder and kidnapping. If the protocol must draw on other instruments, it should be consistent and confine itself to the United Nations Convention against Transnational Organized Crime; that instrument’s detailed provisions for mutual legal assistance seemed more relevant to the nature of the offences listed in paragraph 1. Canada suggested that the Intergovernmental Negotiating Body should, in the period leading up to its fourth session, consider a more appropriate way of including such provisions into the protocol. Mr MOSSOP (alternate to Ms Hefford, Australia) said that Australia, too, had reservations about Article 30 since it involved communicating information rather than providing evidence in a form admissible at trial. Furthermore, Parties seemed to be under an obligation to provide mutual legal assistance at an inappropriate juncture, before legal proceedings had been instituted or even considered. Australia was also concerned about the overarching and as yet unresolved problem of determining what constituted an offence under Article 12. Mr DLAMINI (Swaziland), expressed support for the inclusion of measures to ensure mutual legal assistance in the areas set out in paragraph 1. He sought clarification from the WHO Legal Counsel on the relationship between the objectives of Article 30 and of Article 12 of the Convention on the Safety of United Nations and Associated Personnel. Mr BURCI (WHO Legal Counsel) agreed that there was a need to reconsider Article 30, given the discrepancy between the usual scope of a clause on mutual legal assistance and the language taken from an article in the Convention on the Safety of United Nations and Associated Personnel, which dealt with a somewhat different matter. Meanwhile, several articles in Part V of the protocol referred back to Article 12 because it contained forms of conduct that the Parties, according to the Chairperson’s original text, were expected to criminalize. But that Article had been restructured and revised, and some of the forms of conduct might no longer constitute criminal offences in some States. That would raise doubts about the feasibility of provisions for mutual legal assistance, establishing jurisdiction and other matters that the Intergovernmental Negotiating Body would probably need to discuss at its next session. Mr HOSHINO (Japan), sharing the concern expressed by the representative of Australia, supported the proposal by the representative of Canada. It was a sensitive matter that must be scrutinized with care. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, supported the proposal by Canada and reserved the European Community’s position pending further consideration of Article 30. Mr DLAMINI (Swaziland) supported the proposal to discuss Article 30 further at a later stage. The CHAIR said that, given the clear consensus on the matter, the discussions on Article 30 should be resumed at the next session of the Intergovernmental Negotiating Body, or at an intersessional meeting. The Committee should meanwhile take note of the reservations voiced by the various Parties. It was so agreed.
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• Article 31: Measures to ensure prosecution or extradition • Article 32: Prosecution of alleged offenders • Article 33: Extradition of alleged offenders The CHAIR requested the Parties to refrain from entering into the details of Articles 31, 32 and 33. That subject matter was highly complex and a full discussion would take place at a later stage. He further requested that all proposals be submitted in writing to the Convention Secretariat. Mr PADILLA (Philippines) said that the Philippines considered only serious transnational crimes committed by organized criminal groups to be extraditable offences. It therefore regarded extradition as a matter for the United Nations Convention against Transnational Crime; and if any other offences listed in Article 12.1 and not covered by Article 12.2 were to be extraditable under Articles 31, 32 and 33, it would propose that all three be deleted. Mr HOSHINO (Japan), concurring with the comment by the representative of the Philippines, said that Japan permitted extradition only in exceptional cases, on a bilateral basis and subject to many conditions. It had strong reservations about including articles on the matter in the protocol. Mr MOSSOP (alternate to Ms Hefford, Australia) expressed broad agreement with the Philippines over what constituted an extraditable offence. Bearing in mind the comment by the representative of Canada on Article 30, Australia believed that a single instrument, the United Nations Convention against Transnational Organized Crime, should serve as a model for shaping extradition practices under the protocol. Mrs ADEYEMO (Nigeria) said that the viability of Article 31 would need to be assessed in the light of the domestic law of the Parties from which extradition was sought. The effectiveness of its measures would hinge on whether it regarded double criminality as a prerequisite, for example, or what criteria might be used to extradite those found guilty of forms of conduct listed in paragraph 1 of Article 12, yet not classified as criminal offences. Ms LEI Zhao (China), sharing the views expressed by the Philippines and Australia, said that Articles 31, 32 and 33 should be considered as a whole, and that the relationship between those Articles and the United Nations Convention against Transnational Organized Crime needed closer examination. Mr DLAMINI (Swaziland) fully aligned himself with the view that Articles 31, 32 and 33 were correlated. Involvement in illicit trade in tobacco and tobacco products must be established as a serious criminal offence in order to extradite and prosecute offenders under Article 31. That might be why such importance had been attached to certain qualifiers in the text. He urged other Parties to give the matter serious consideration. Dr RANGREJI (India) said that India set much store by the section of the protocol on international cooperation, and its use by Parties without bilateral agreements as a legal basis for the extradition or prosecution of offenders found on their territory. He did not see why some Parties were trying to limit the scope to the definition of serious crime under the United Nations Convention against Transnational Organized Crime, which was punishable by a minimum term of four years’ imprisonment, when the offences listed in paragraph 1 of Article 12 could carry anything from a oneyear to a seven-year term, depending on domestic law. It would be more appropriate to consider the principle of double criminality under the widely adhered to United Nations Model Law on Extradition. India believed that Articles 31, 32 and 33 should be retained, subject to amendment. Ms GARCÍA (Bolivarian Republic of Venezuela) requested clarification from the WHO Legal Counsel on the words “if it does not extradite that person” in Article 32. Her country’s Constitution
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prohibited the extradition of nationals of Venezuela, and those words did not provide legal certainty or any parameters for granting extradition. Mr BURCI (WHO Legal Counsel) explained that Article 32 provided for situations where a Party was not in a position to extradite. May international agreements followed the approach “extradite or prosecute” to ensure that a person committing an offence did not go unpunished. Normally it was a matter for national law, but in cases where the latter did not permit extradition, or when a country had the choice but decided against extradition, that country would be compelled to hand over the offender to its own authorities for prosecution, thereby avoiding gaps in the criminal justice system and the possibility of impunity. Mr GRÖNLUND (Sweden), speaking on behalf of the European Community, in view of the discussion on Article 12, reserved the European Community’s position on Articles 31, 32 and 33 pending consideration at a later stage. Ms MELKOM (Bolivarian Republic of Venezuela) suggested that the Spanish version of paragraph 1 of Article 33 should be amended to read: “Los delitos enumerados en el Artículo 12.1, deberán incluirse en los tratados de extradición vigentes, de acuerdo a la legislación nacional, de cada Estado Parte”; and that the words “Toda Parte que subordine la extradición a la existencia de un tratado, si recibe una petición de” at the beginning of paragraph 2 of Article 33 should be deleted, in which case the Article would open with the words: “Si recibe una petición de otra Parte en la que no tenga tratado de extradición”. She further drew attention to the words “it may at its option” in the Article 33, which appeared to leave the Parties free to ignore the protocol, and sought clarification on whether it was really necessary to retain paragraph 3 of Article 33 since it seemed to be stating the obvious. Part IV: Offences and sanctions (resumed) • Article 12: Offences (resumed) The CHAIR, in response to a query from Dr MORI (Japan) regarding the list of forms of conduct in paragraph 1 of Article 12, which had yet to be dealt with, said that it would be taken up at the next session of the Intergovernmental Negotiating Body. Japan could nevertheless, if it wished, request the Chairperson of the Intergovernmental Negotiating Body to set up an intersessional working group to examine that list and prepare a firm proposal as a basis for the future discussions. The Committee would meanwhile take note of Japan’s request to place paragraph 1 of Article 12 in square brackets in the draft report on its work to be presented to the plenary that afternoon. It was so agreed.
2.
CLOSURE OF THE SESSION After the customary exchange of courtesies, the CHAIR declared closed the work of Committee B.
The meeting rose at 13:05.
LIST OF PARTICIPANTS PARTIES ALBANIA Delegate(s) Mr R. Shuperka National Coordinator, Tobacco Control, Institute of Public Health ALGERIA Chief delegate M. I. Jazaïry Ambassadeur, Représentant permanent, Genève Delegate(s) M. B. Chebihi Ministre conseiller, Représentant permanent adjoint, Mission permanente, Genève Dr Y. Terfani Sous-directeur, Ministère de la Santé de la Population et de la Réforme hospitalière Dr Y. Laid Epidémiologiste, Chargé de la Santé et de l’Environnement, Institut National de la Santé publique M. M.F. Bouchedoub Secrétaire diplomatique, Mission permanente, Genève ANGOLA Adviser(s) Chief delegate Dr M.F. Wilson Manuel Head, Health Promotion, Directorate of Public Health, Minstry of Health Ms E. Mae Bowes Counsellor, Department of Foreign Affairs and Trade, Permanent Mission to the World Trade Organization, Geneva Mr S. Singh Commar Delegate(s) Mrs N.M. Saraiva Assistant, Health Issues, Permanent Mission, Geneva ARMENIA Delegate(s) Dr A. Bazarchyan Coordinator, Tobacco Control Programme, Ministry of Health AUSTRALIA Chief delegate Ms J.S. Hefford Department of Health and Ageing Alternate(s) Mr T.E. Fitzgerald Counsellor, Customs Service, Australian High Commission to Great Britain and Northern Ireland Mr P.J. Kimpton First Secretary, Department of Foreign Affairs and Trade, Permanent Mission, Geneva Mr D.J. Mossop Attorney-General’s Department, Australian Government
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Minister Counsellor, Health, Permanent Mission, Geneva Ms P.J. Marshall Department of Health and Ageing Mr S.R. Wilson Attorney-General’s Department, Australian Government AUSTRIA Chief delegate Dr H. Heller Director, Federal Ministry of Finance Deputy chief delegate Mr J. Gasser Federal Ministry of Justice Alternate(s) Ms C. Rafling Federal Ministry of Health Mr G. Zehetner First Secretary, Permanent Mission, Geneva AZERBAIJAN
Delegate(s) Mrs N. Begum Deputy Secretary, Ministry of Health and Family Welfare Mr F.M. Kazi First Secretary, Permanent Mission, Geneva BARBADOS Chief delegate Mr B. Gibbs Permanent Secretary, Ministry of Economic Affairs, Empowerment, Innovation, Trade, Industry and Commerce Delegate(s) Ms N. Burke First Secretary, Permanent Mission, Geneva BELGIUM Chief delegate Mme B. Minart Représentant permanent adjoint, Genève Delegate(s)
Delegate(s) Dr S. Sevdimaliyeva Medical Advisor, Ministry of Health BAHRAIN Delegate(s) Dr K.J. Al-Halwaji Consultant Family Physician, Ministry of Health BANGLADESH Chief delegate Dr R. Sultana Joint Secretary, Administration, Ministry of Health and Family Welfare Mme M. Debauche Attaché, Service public fédéral Justice M. L. Leysen Directeur, Service public fédéral Finances, Douanes et Accises, Direction nationale des Recherches de l’Administration des Douanes et Accises M. M. Capouet Expert, Service public fédéral Santé publique, Sécurité de la Chaîne alimentaire et Environnement Mme M. Deneffe Conseiller, Représentation permanente, Genève
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BENIN Chief delegate Dr J.C. Toessi Chef, Service de Promotion de la Santé, Point focal de la Lutte antitabac, Direction nationale de la Protection sanitaire, Ministère de la Santé Delegate(s) Mme S. Madougou Directrice générale, Commerce intérieur, Ministère du Commerce BHUTAN Chief delegate Mr U. Namgyel Regional Commissioner, Regional Revenue and Customs Office Delegate(s) Mr Phuntsho Norbu Second Secretary, Permanent Mission, Geneva BRAZIL
Mr M. Fisch Berredo Menezes General Coordinator of Inspection, Secretariat of the Federal Revenue, Ministry of Finance Mr L. Luiz Viegas Head, Division of Multilateral Affairs, Ministry of Health Mr R. Estrela de Carvalho First Secretary, Permanent Mission, Geneva Mr J. Pinto Nunes Department of the Federal Police, Ministry of Justice Mr F.A.M. de Campos Ribeiro Department of Human Rights and Social Issues, Ministry of Foreign Affairs Mr H.J. Coelho Martins National Agency of Sanitary Surveillance (ANVISA) Ms A.P.S. Juca da Silveira Silva National Agency of Sanitary Surveillance (ANVISA) BULGARIA Chief delegate
Chief delegate Ms M.N. Farani Azevedo Ambassador, Permanent Representative, Geneva Delegate(s) Mr A. Parola Minister-Counsellor, Permanent Mission, Geneva Mr S. J. Albuquerque e Silva Minister, Head of Division on Social Issues, Ministry of Foreign Affairs Mr H.J. Freitas da Silva Secretary of Inspection, Secretariat of the Federal Revenue, Ministry of Finance Mr F. Florov Junior Expert, International Cooperation and European Affairs Directorate, Ministry of Justice Mrs N. Krasteva Second Secretary, Permanent Mission, Geneva BURKINA FASO Chief delegate M. P. Vokouma Ambassadeur, Représentant permanent, Genève Mrs A. Angelova-Todorova Counsellor, Permanent Representation to the European Union, Brussels Delegate(s)
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Delegate(s) Mme E. Balima Attaché, Mission permanente, Genève Dr N.M. Nare Médecin de Santé publique, Responsable du Service Enfant/Adolescent/Jeune, Direction de la Santé de la Famille, Ministère de la Santé BURUNDI Delegate(s) Dr T. Gahungu Médecin, Point focal Tabac, Ministère de la Santé publique CAMBODIA Delegate(s) Dr Ung Phyrun Secretary of State, Ministry of Health CAMEROON Chief delegate M. A.F.M. Nkou Ambassadeur, Représentant permanent, Genève Delegate(s) M. D. Sibetcheu Directeur, Promotion de la Santé, Ministère de la Santé publique M. M.L. Zoua Conseiller technique n°4, Ministère des Relations extérieures Mme F. Monebenimp Directeur, Santé universitaire et Activités socio-culturelles, Ministère de l’Enseignement supérieur Mme R. Gambo Inspecteur, Vérification des Prix, Direction de la Protection des Consommateurs, Ministère du Commerce
CANADA Chief delegate Mr Y. Leguerrier Chief, National Strategies Division, Policing, Law and Interoperability Branch, Public Safety Canada Delegate(s) Mr P. Bertrand Director-General, Legislative Policy and Regulatory Affairs Branch, Canada Revenue Agency Mr D. Simmonds Director, Customs and Excise, Royal Canadian Mounted Police Alternate(s) Mr P. Oldham Counsellor, Permanent Mission, Geneva Ms L. Hernandez Senior Advisor, International Health Division, Health Canada Ms S. Leclaire Manager, Excise Duty Operations – Tobacco, Legislative Policy and Regulatory Affairs Branch, Canada Revenue Agency Mr G. Coulombe Tax Policy Analyst, Finance Mr J.-M. Piché Senior Policy Analyst, Customs and Excise, Royal Canadian Mounted Police Mr M. Judd Policy Analyst, National Strategy Division, Policing, Law and Interoperability Branch, Public Safety Mr P. Saint-Denis Senior Counsel, Criminal Law Policy Section, Department of Justice
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Mr G. Dempsey Legal Office, UN, Human Rights and Humanitarian Law Section, Department of Foreign Affairs and International Trade CAPE VERDE Delegate(s) Mme L.E. Vaz Almada Monteiro Sous-directrice, Direction générale de la Douane CENTRAL AFRICAN REPUBLIC Delegate(s) Dr J. Ngaba Pharmacien-Colonel, Directeur des Services pharmaceutiques, des Laboratoires et de la Médecine traditionelle, Point focal de la Lutte antitabac CHAD Delegate(s) Mr N.G. Donbe Point focal national antitabac, Alcool et Drogues, Ministère de la Santé publique CHILE Chief delegate Sr. A. Rogers Ministro Consejero, Representante Permanente Alterno, Ginebra Delegate(s) Srta. S. Figueroa Abogada, Ministerio de Salud Sr. M. Navarrete Abogado, Servicio de Impuestos Internos Sr. C. Escudero Representante, Servicio Nacional de Aduanas
Dr. F. Muñoz Porras Agregado Científico, Misión Pemanente, Ginebra Sr. J. Godoy Asesor, Misión Permanente, Ginebra Sr. C. Fresard Consejero, Misión Permanente, Ginebra CHINA Chief delegate Mr Gao Xingzhi Deputy Director-General, Department of Monopolization Supervision, State Tobacco Monopoly Administration Delegate(s) Mr Yang Jie Deputy Director, Chinese Centre for Disease Control and Prevention Ms Lei Zhao Programme Officer, Department of Treaty and Law, Ministry of Foreign Affairs Ms Tu Xiaohua Director, Bureau of Suppression of Smuggling, General Administration of Customs Ms Du Changhong Deputy Director, Bureau of Equity Bargaining, State Administration for Industry and Commerce Ms Zheng Suping Deputy Director, General Office, State Tobacco Monopoly Administration Mr Lu Yonghua Section Chief, Department of Monopolization Supervision, State Tobacco Monopoly Administration Miss Li Wan-in Assistant Secretary, Food and Health Bureau, Hong Kong Special Administrative Region
LIST OF PARTICIPANTS
187
Dr Chong Yuhoi Senior Medical Officer, Department of Health, Hong Kong Special Administrative Region Mr C. Lam Assistant Staff Officer, Customs and Excise Department, Hong Kong Special Administrative Region Ms Liu Hua Counsellor, Permanent Mission, Geneva Mr Teng Fei Attaché, Permanent Mission, Geneva Ms Li Yunyan Mr Zhuang Yukai Mr Lin Zhiqiang Mr Hang Jiaying COLOMBIA Chief delegate Sr. A. GARZON Embajador, Representante Permanente, Ginebra Delegate(s) Sra. M.I. Alarcon Ministro, Misión Permanente, Ginebra Dr. C.V. Rada Escobar Director, Instituto Nacional de Cancerología Sr. R.A. Torres Martin Director, Instituto Nacional de Cancerología Sr. F. Estefan Pasante, Misión Permanente, Ginebra
COMOROS Delegate(s) M. A. Chaibou Bedja Conseiller technique, Point focal national pour la Lutte antitabac, Ministère de la Santé, de la Solidarité et de la Promotion du Genre CONGO Chief delegate M. L.-J. Okio Ambassadeur, Représentant permanent, Genève Delegate(s) M. J.A. Onanga Directeur général, Douanes et Droits indirects M. J.-M. Megot Premier Conseiller, Mission permanente, Genève Mme F. M’Vila Conseiller, Mission permanente, Genève Mme R. Likibi-Boho Point focal de la Lutte antitabac, Ministère de la Santé, des Affaires sociales et de la Famille Mr J.-B. Yomo Chef de Service antidrogue, Direction des Enquêtes douanières COOK ISLANDS Delegate(s) Dr J. A. Herman Director, Hospital Health Services, Ministry of Health COSTA RICA Chief delegate Sra. L. Thomson Embajadora, Representante Permanente, Ginebra
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Delegate(s) Srta. E. Gutiérrez Ministra Consejera, Misión Permanente, Ginebra Sr. L. Guanziroli Misión Permanente, Ginebra CYPRUS Delegate(s) Ms E. Fantidou Customs Officer, Department of Customs and Excise, Ministry of Finance DEMOCRATIC REPUBLIC OF THE CONGO Chief delegate
Delegate(s) Ms M. V. Azzam Fiscal Attaché, Ministry of Taxation DJIBOUTI Chief delegate M. I. Moussa Roble Directeur adjoint, Douane, Ministère de l’Economie et des Finances ECUADOR Chief delegate Sr. M. Montalvo Embajador, Representante Permanente, Ginebra Delegate(s)
M. A. Mindua Kesia-Mbe Ambassadeur, Représentant permanent, Genève Delegate(s) M. R. Kabwebwe Tshilombo Chef de Division, Chargé d’Etudes, Planification et Recherche, Programme National de Lutte Contre les Toxicomanies et les Substances Toxiques (PNLCT), Ministère de la Santé Publique M. B. Kebea Directeur, Accises, Office des Douanes et Accises (OFIDA) M. S. Bin Saleh Inspecteur, Accises, Office des Douanes et Accises (OFIDA) DENMARK Chief delegate Mr C. Thomsen Senior Counsellor, Ministry of Taxation
Dr. H. Noboa Director Ejecutivo, Consejo Nacional de Salud Sr. J. Holguin Representante Alterno, Ginebra Sr. C. Santos Consejero, Misión Permanente, Ginebra Sr. L. Vayas Primer Secretario, Misión Permanente, Ginebra Sra. M. Del Carmen Vivar Tercer Secretario, Misión Permanente, Ginebra EUROPEAN COMMUNITY Chief delegate Mr M. Rajala Minister Counsellor, Permanent Delegation of the European Commission, Geneva Delegate(s) Mr I. Walton-George Director, Investigations and Operations II, European Anti-Fraud Office (OLAF)
LIST OF PARTICIPANTS
189
Mr L. Kuhl Head of Unit, European Anti-Fraud Office Mr A. Rowan Head of Unit, Customs II, Directorate of Investigations and Operations II, European Anti-Fraud Office Mr K. Mc Michael Investigator, European Anti-Fraud Office Mr Y. Hermans Investigator, European Anti-Fraud Office Mr C. Docksey Counsellor, European Anti-Fraud Office Mr M. Mavrinac Policy Officer, European Anti-Fraud Office Mr J.-P. Keppenne Policy Officer, European Anti-Fraud Office Ms S. Tucker Policy Officer, European Anti-Fraud Office Ms T. Peetso Administrator Unit, Public Health Law and International Directorate General for Health and Consumers Ms K. Laurent Adviser, European Commission Delegation, Geneva FIJI Chief delegate Dr I. Tukana National Adviser, Non Communicable Diseases FINLAND Chief delegate Mr E. Lahtinen Counsellor, Permanent Mission, Geneva
Delegate(s) Mr J. Lempiäinen Counsellor, Permanent Representation to the European Union, Brussels Mr I. Mäenpää Minister Counsellor, Ministry of Finance Mr S. Kiriakos Senior Officer, Ministry of Justice FRANCE Chief delegate M. C. Guilhou Représentant permanent adjoint, Mission permanente, Genève Delegate(s) Mme M. Ferrante Direction générale des Douanes et Droits indirects, Ministère du Budget, des Comptes publics et de la Fonction publique M. E. Louis Direction générale des Douanes et Droits indirects, Ministère du Budget, des Comptes publics et de la Fonction publique M. F. Stoliaroff Direction des Affaires criminelles et des Grâces, Ministère de la Justice Mme G. Bonnin Bureau international Santé et Protection sociale, Délégation aux Affaires internationales et européennes, Ministère de la Santé et des Sports M. F. Poinsot Conseiller Santé, Mission permanente, Genève M. A. Allo Conseiller pour les Affaires financières, Mission permanente, Genève M. G. Angles Attaché Santé, Mission permanente, Genève
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GAMBIA Delegate(s) Mr Y. Bah Focal Point for Tobacco Control, Ministry of Health and Social Welfare GEORGIA Delegate(s) Mr A. Gamkrelidze Deputy Director-General, National Center for Disease Control and Public Health, Ministry of Labour, Health and Social Affairs GERMANY Chief delegate Mr K. Scharinger Deputy Permanent Representative, Geneva Delegate(s) Mrs V. Weyand Advisor, Permanent Representative, Brussels Mr B. Hess Head of Division, Federal Ministry of Finance Mr T.C. Heuwinkel Advisor, Federal Ministry of Finance Mrs C. Tzimas Advisor, Federal Ministry of Health Ms J. Heydemann Desk Officer, Permanent Mission, Geneva Ms J. Schicklinski Advisor, Permanent Mission, Geneva Mr T. Ramhorst Advisor, Permanent Mission, Geneva
GHANA Chief delegate Ms M. Amoah Chargé d’Affaires, Permanent Mission, Geneva Delegate(s) Dr J. Amankwa Director, Public Health Service, Ghana Health Service Mrs L. Asiedu First Secretary, Permanent Mission, Geneva Mrs E.K. Wellington Focal Point for Tobacco Control, Ghana Health Service Mr G.N.T. Tagoe Assistant Commissioner, Legal, Customs Excise and Preventive Service Mrs P. Akiwumi Siriboe Principal State Attorney, Attorney General’s Department, Food and Drugs Board Mrs A.O. Amartey Head, Tobacco and Substances Abuse Department, Food and Drugs Board Mr P. Hodo Legal Officer, Environmental Protection Agency GREECE Chief delegate Mr F. Verros Ambassador, Permanent Representative, Geneva Delegate(s) Mr A. Cambitsis Minister Counsellor, Permanent Mission, Geneva
LIST OF PARTICIPANTS
191
Ms A. Damigou Counsellor for Health Affairs, Permanent Mission, Geneva Mr O. Pylalis Director, Customs Office Ms V. Vasilantonopoulou Customs Officer GUATEMALA Chief delegate
GUINEA-BISSAU Chief delegate Dr F. Aleluia Lopes Director, Hospital Services, Ministry of Health Delegate(s) Mr W.M. Fernandes Dias Director, Trade and Prices Department, Ministry of Trade HONDURAS
Sr. C.R. Martínez Embajador, Representante Permanente, Ginebra Delegate(s) Sra. S. Hochstetter Ministro Consejero, Misión Permanente, Ginebra Sra. A.C. Fabián Segundo Secretario, Misión Permanente, Ginebra Sra. C.P. Barillas Morales Analista de Procesos, Unitad de Tratados y Convenios Internacionales, Superintendencia de Administración Tributaria Sr. A. Pimentel Consejero, Misión Permanente, Ginebra Sra. M. Guerra Consejera, Misión Permanente, Ginebra Sr. J.P. Deveaux Miinsterio de Agricultura GUINEA Delegate(s) M. A.B. Barry Conseiller, Chargé de la Législation sanitaire, Point focal national pour la Lutte antitabac, Ministère de la Santé et de l’Hygiène publique
Chief delegate Sr. J. Delmer Urbizo Embajador, Representante Permanente, Ginebra Delegate(s) Dra. L.S. Mejía Velásquez Directora General, Instituto Hondureño para la Prevención del Alcoholismo, Drogadiccion y Farmaco Dependencia (IHADFA) Sr. F. Zuniga Garcia Agregado HUNGARY Chief delegate Mr L. Székely Deputy Permanent Representative, Geneva Delegate(s) Mr Z. Pozsgai Expert, Department of Indirect Taxation, Customs and Excise, Ministry of Finance INDIA Chief delegate Mr B.K. Prasad Joint Secretary, Ministry of Health and Family Welfare
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Delegate(s) Dr V.M. Prasad Director, Ministry of Health and Family Welfare Mr K. Ramakrishnan Deputy Secretary, Department of Customs, Ministry of Finance Dr L. Rangreji Legal Officer, Ministry of External Affairs Mr P. Satpathy Minister, Permanent Mission, Geneva IRAN (ISLAMIC REPUBLIC OF) Chief delegate Dr M. Ghaffari Director-General, Environmental and Occupational Health, Ministry of Health and Medical Education Delegate(s) Mr K. Ahmadi First Counsellor, Permanent Mission, Geneva Mr S. Shakerian Expert, Ministry of Foreign Affairs IRAQ Chief delegate Mr A.J. Karragi Manager, Tobacco Free Programme, Primary Health Care Section, Public Health Department, Ministry of Health Delegate(s) Mr F.S. Al-Khazraji Head, Legal Department, Directorate of Administration, Finance and Legal Directorate, Ministry of Health Mr U. Ibrahim Third Secretary, Permanent Mission, Geneva
IRELAND Chief delegate Mr D. Godwin Principal Officer, Office of the Revenue Commissioners Delegate(s) Mr N. O’Grady Customs Attaché Mr D. O’Ceallaigh Ambassador, Permanent Representative, Geneva Mr M. Gallagher Second Secretary, Permanent Mission, Geneva ISRAEL Chief delegate Mr A. Leshno-Yaar Ambassador, Permanent Representative, Geneva Delegate(s) Mr R. Adam Deputy Permanent Representative, Geneva Mr R. Azoff Legal Advisor for International Affairs, Customs Ms N. Hacohen First Senior Deputy to State Attorney, Ministry of Justice Mrs R. Langer Advisor, Permanent Mission, Geneva ITALY Chief delegate Mr E. Vicenti First Counsellor, Permanent Mission, Geneva
LIST OF PARTICIPANTS
193
Delegate(s) Mr S. Romagnoli Senior Officer, Ministry of Economy and Finance Ms C. Di Girolamo Permanent Mission, Geneva JAMAICA Chief delegate
Mr D. Hoshino Deputy Director, Specialized Agencies Division, International Cooperation Bureau, Ministry of Foreign Affairs Ms M. Toyota-Imamura First Secretary, Permanent Mission, Geneva Mr N. Ooka Deputy Director, Tobacco and Salt Industries Office, Financial Bureau, Ministry of Finance JORDAN
Dr E. Lewis-Fuller Director, Health Promotion and Protection, Ministry of Health and Environment Delegate(s) Mrs A. Dubidad Dixon First Secretary, Permanent Mission, Geneva JAPAN Chief delegate Mr A. Isomata Minister, Permanent Mission, Geneva Delegate(s) Mr H. Genshin Director, Research Office, Financial Bureau, Ministry of Finance Mr O. Hayakawa Director, Specialized Agencies Division, International Cooperation Bureau, Ministry of Foreign Affairs Mr K. Nagatomo Director, Tobacco and Salt Industries Office, Financial Bureau, Ministry of Finance Dr J. Mori Technical Officer, Office for Lifestyle Related Disease Control, General Affairs Division, Health Service Bureau, Ministry of Health, Labour and Welfare
Delegate(s) Dr H.S. Ayub Head, Tobacco Control, Ministry of Health Delegate(s) Mr G. Al Quda Third Secretary, Permanent Mission, Geneva KAZAKHSTAN Chief delegate Dr Z. Karagulova Counsellor, Permanent Mission, Geneva KENYA Chief delegate Mr I. Longolomoi Head, Division of Occupational Health and Safety, Ministry of Public Health and Sanitation Delegate(s) Mrs N.M. Wachira Senior Principal State Counsel, Department of Treaties and Agreements, State Law Office Mr E.G.N. Mbugua Senior Assistant Commissioner, Domestic Excise, Domestic Tax Department, Kenya Revenue Authority
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Dr T.M. Okeyo Ambassador, Deputy Permanent Representative, Geneva Mr E. Manyara Principal Counsellor, Permanent Mission, Geneva Ms D.J. Kiptui Desk Officer, Tobacco Control, Ministry of Public Health and Sanitation Dr S.K. Muleshe Assistant Director, Medical Services in Charge of International Health Relations (IHR), Ministry of Medical Services KIRIBATI Delegate(s) Dr R. Kirition Acting Director Public Health, Ministry of Health and Medical Service KYRGYZSTAN Delegate(s) Dr N. Esengulova National Tobacco Coordinator, Ministry of Health LAO PEOPLE’S DEMOCRATIC REPUBLIC Delegate(s) Mr T. Luangraj Chief, Legislation Section, Legislation Division, Customs Department, Ministry of Finance LESOTHO Chief delegate Dr M.A. Maruping Ambassador, Permanent Representative, Geneva
Deputy chief delegate Mrs N. Mosala National Tabacco Control Focal Person Delegate(s) Mr T. Makong LIBYAN ARAB JAMAHIRIYA Chief delegate Mr I.S. Daganee Director-General, Information and Documentation Centre, General People’s Committee for Health and Environment Delegate(s) Mrs S.M. Abdullah Health Affairs, United Nations Department, General People’s Committee for Foreign Liaisons and International Cooperation Brigadier General A.O. Said Director, Territorial Borders Department, General People’s Committee for Security Major F.S.M. El Zatel Customs Service, General People’s Committee for Finance Dr H. Gashut Minister Counsellor, Permanent Mission, Geneva Mr M. Ibrahim-Salah Mrs S.M. Jouki LITHUANIA Chief delegate Mr P. Majauskas Head, Tax Administration, Ministry of Finance Delegate(s) Mr J. Bersekerskas Chief Officer, Tax Administration Division, Ministry of Finance
LIST OF PARTICIPANTS
195
LUXEMBOURG Chief delegate M. J. Feyder Ambassadeur, Représentant permanent, Genève Delegate(s) Mme C. Goy Représentant permanent adjoint, Genève M. J.-C. Weishaar Attaché, Ministère des Finances M. J. Pundel Premier Secrétaire, Mission permanente, Genève MADAGASCAR
MALI Chief delegate M. S.L. Sow Ambassadeur, Représentant permanent, Genève Delegate(s) M. O.A. Mohamedoun Conseiller technique, Ministère de la Santé M. A. Maiga Deuxième Conseiller, Mission permanente, Genève M. S. Kasse Premier Secrétaire, Mission permanente, Genève MALTA
Chief delegate Delegate(s) Dr M.J. Andrianomenjanaharinirina Directeur, Office national de Lutte antitabac Delegate(s) Dr C. Razafindrazaka Attaché, Mission permanente, Genève MALAYSIA Chief delegate Mrs Wong Mee Ling Senior Federal Counsel, Ministry of Health Delegate(s) Mr Ooi Poh Keong Environmental Health Officer, Disease Control Division, Ministry of Health MALDIVES Delegate(s) Mr H. Mohamed Deputy Director, Ministry of Health and Family Mr S. Sammut Senior Principal Environmental Health Officer, Department of Environmental Health, Ministry of Social Policy MAURITANIA Delegate(s) Dr A.O.M. Ould Bouhabib Chef, Service des Maladies non transmissibles, Point focal national de Lutte antitabac, Ministère de la Santé MEXICO Chief delegate Sr. L.A. De Alba Góngora Embajador, Representante Permanente, Ginebra Deputy chief delegate Sra. M. Madrazo Reynoso Directora Adjunta, Oficina Nacional para el Control del Tabaco, Secretaria de Salud
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Delegate(s) Sra. M. Del Pilar Gómez Oliver Embajadora, Representante Permanente Alterna, Ginebra Sr. J.L. Cervantes Martinez Titular, Unidad Especializada en Investigación de Delitos contra Derechos de Autor y la Propiedad Industrial, Procuraduria General de la República Sr. J.R. Pineda Jefe, Oficina Nacional para el Control del Tobaco, Secretaria de Salud Sra. A.P. Cedillo González Encargada de la Coordinación General Juridica y Consultiva, Comisión Federal para la Protección contra Riesgos Sanitarios, Secretaria de Salud Sra. T.N. Zemeño Temores Subadministradora, Regulación Aduenera 4, Servicio de Administración Tributaria, Secretaria de Hacienda y Crédito Público Sr. E.J. Navarrete Coordinador, Estrategia de Migrantes, Secretaria de Salud Sra. M.A. Jaquez Primer Secretario, Misión Permanente, Ginebra MICRONESIA (FEDERATED STATES OF) Delegate(s) Mr W. Hadley Chairman, National Tobacco Coalition MONGOLIA Chief delegate Mr D. Boldbaatar Ambassador, Permanent Representative, Geneva
Delegate(s) Dr G. Tsetsegdari Senior Officer-in-Charge, Non-Communicable Disease, Prevention and Control, Policy Planning Department, Ministry of Health Mr T. Munkh-Ulzii Third Secretary, Permanent Mission, Geneva MONTENEGRO Chief delegate Ms B. Bozovic Director, National Tobacco Agency Delegate(s) Ms J. Gogic Senior Adviser, National Tobacco Agency MYANMAR Delegate(s) Dr N.N.N. Shein Assistant Director, Department of Health, Ministry of Health NAMIBIA Chief delegate Mr B. Maloboka Chief, Health Programmes, Ministry of Health and Social Services Delegate(s) Ms V. Du Preez Social Worker, Ministry of Health and Social Services Mr T. Kapofi Health Inspector, Ministry of Health and Social Services Mr T.G. Shipanga Chief Inspector, Criminal Investigation Directorate, Ministry of Safety and Security
LIST OF PARTICIPANTS
197
NEPAL Delegate(s) Mr B.K. Baniya Under-Secretary (Law), Ministry of Health and Population NETHERLANDS Chief delegate Mr L.A. De Blieck Customs Counsellor, Permanent Representation to the European Union, Brussels Delegate(s) Mr J.J. Mesu Justice Counsellor, Permanent Representation to the European Union, Brussels Mr J. Volleman Health Attaché, Permanent Representation to the European Union, Brussels Ms G. Vrielink First Secretary, Permanent Mission, Geneva Ms L. De Boer Advisor, Permanent Mission, Geneva NEW ZEALAND
NICARAGUA Chief delegate Sr. C. Robelo Raffone Embajador, Representante Permanente, Ginebra Delegate(s) Dr. J.A. Orochena Santana Medico Especialista, Administración de Servicios de Salud Sr. N. Cruz Toruño Consejero, Misión Permanente, Ginebra Sr. N. Somarriba Fonseca Primer Secretario, Misión Permanente, Ginebra NIGER Chief delegate Dr S. Moussa Directeur, Hygiène publique et Education pour la Santé, Point focal de la Lutte antitabac, Ministère de la Santé publique Delegate(s) M. R. Issaka Moussa Conseiller, Mission permanente, Genève NIGERIA
Chief delegate Chief delegate Ms W. Hinton Deputy Permanent Representative, Geneva Delegate(s) Ms K. Evison Manager, National Program Tobacco Control, Ministry of Health Dr A. Bloomfield Director, National Program Tobacco Control, Ministry of Health Ms L. Cassels Second Secretary, Permanent Mission, Geneva Dr M.E. Anibueze Head of Division, Non-Communicable Diseases,Tobacco Control Focal person, Federal Ministry of Health Delegate(s) Mrs J. Balami Non-Communicable Disease, Tobacco control, Federal Ministry of Health Mrs G.O. Adeyemo Controller of Customs, Head Strategic Research and Policy, Nigerian Custom Service
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Mr L. Njoku Director, Laboratory Service, Supervisor, Cigarette Standards Regulation, Standards Organization Mrs E. Ofili Chief Scientific Officer, Tobacco Standards, Standard Organization Mr R.A. Fashina Head, Public Relations, Coordinator, Awareness Campaign against Illicit Trade, Standards Mrs C. Yahaya Minister, Permanent Mission, Geneva NIUE Delegate(s) Mr M. Nosa Tobacco Control Focal Point, Health Department, Ministry of Health NORWAY Delegate(s)
Mr S. Zadjaly Director Quality, Ministry of Trade and Industry PAKISTAN Chief delegate Mrs S. Masud Director-General, Tobacco Control Initiative, Ministry of Health Delegate(s) Mr Z. Akram Ambassador, Permanent Representative, Geneva Mr S.A.A. Gillani Counsellor, Permanent Mission, Geneva Mr A.A. Baloch Chief, Sales Tax and Federal Excise, Federal Board of Revenue Ms S. Raza Permanent Mission, Geneva PANAMA Chief delegate
Mr T.E. Lindgren Counsellor, Permanent Mission, Geneva OMAN Chief delegate
Sra. R.G. Roa Rodríguez Técnica del Departamento de Anális y Tendencias de Salud, Ministerio de Salud, Punto Focal del Control del Tabaco Delegate(s)
Dr J.A.J. Al-Lawati Director, Department of Non-Communicable Disease Prevention and Control, Ministry of Health Delegate(s) Mr O.F. Al-Jahdami Director, Consumer Protection Department, Ministry of Commerce and Industry Mr S.M.S. Al-Zadjali Director, Department of Standards and Specifications, Ministry of Commerce and Industry
Sr. R. Samuda Jefe, Departamento de Propiedad Intelectual de la Autoridad Nacional de Aduanas Sr. L. Yanes Técnico, Departamento de Propiedad Intelectual de la Autoridad Nacional de Aduanas Sra. U. Alfú de Reyes Embajadora, Representante Adjunta, Ginebra Sr. A. Mendoza Segundo Secretario, Consejero, Misión Permanente, Ginebra
LIST OF PARTICIPANTS
199
PAPUA NEW GUINEA Delegate(s) Dr T.D.Y. Vinit Technical Advisor, Lifestyle Diseases Unit, National Focal Point on Tobacco Control, Department of Health PARAGUAY
Sr. I. Zavallos Aguilar Segundo Secretario, Misión Permanente, Ginebra Sr. C.S. Rivera Segundo Secretario, Misión Permanente, Ginebra PHILIPPINES Chief delegate
Chief delegate Sr. R. Gauto Embajador, Representante Permanente, Ginebra Delegate(s) Dr. V. San Martín Director, Programa Nacional de Control de Tabaquismo, Ministerio de Salud Pública y Bienestar Sr. J.L. Gaona Director General de Grandes Contribuyentes, Subsecreataria de Estado de Tributación, Ministerio de Hacienda Sra. M. Moreno Ministra, Misión Permanente, Ginebra PERU Chief delegate Sr. E. Schialer Representante Permanente alterno, Ginebra Delegate(s) Dr F.A. Campos Alcazar Jefe de Gabinete de Asesores, Ministerio de Salud Dra. D. Leon Chempen Secretaria General, Ministerio de Salud Sr. C.C. Burga Ministro Consejero, Misión Permanente, Ginebra Mr A. Padilla Under-Secretary, Department of Health Delegate(s) Mr D.Y. Lepatan Deputy Permanent Representative, Geneva Mr R. Nicolas Deputy Commissioner, Bureau of Customs Mrs M.T.C. Lepatan Minister, Permanent Mission, Geneva Mr R. Batac Attaché, Mission to World Trade Organization, Geneva Ms K.F. Ondiano Attaché, Permanent Mission, Geneva Adviser(s) Ms D. Sy Executive Director, Health Justice POLAND Chief delegate Mr Z. Rapacki Ambassador, Permanent Representative, Geneva Mr E.F. Basilio Ambassador, Permanent Representative, Geneva Deputy chief delegate
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Delegate(s) Mr T. Parchimowicz Chief Expert, Public Health Department, Ministry of Health Mr B. Bednarski Chief Expert, Customs-Excise Control and Gambling Control Department, Ministry of Finance Ms M. Nojszewska-Dochev First Secretary, Permanent Mission, Geneva PORTUGAL Chief delegate M. R. Pracana Représentant permanent adjoint, Geneva Delegate(s) M. A. Valadas da Silva Conseiller, Mission permanente, Genève Mme C.M. Coelho Expert, Ministère des Finances Mme C. Lourenço Expert, Ministère des Finances et de l’Administration publique QATAR Chief delegate Dr M.G. Al-Kauwary Senior Consultant, Public Health Department, National Health Authority Delegate(s) Mr A.A. Al-Sulaity Legal Researcher, Ministry of Justice REPUBLIC OF KOREA Chief delegate Mr Lee Young-chan Minister Counsellor, Permanent Mission, Geneva
Delegate(s) Mr Kang Nam-il Counsellor, Permanent Mission, Geneva Mr Park Mun-bae Public Entreprise Management Division, Ministry of Strategy and Finance Ms Yun Mi-ran Treasury Division, Ministry of Strategy and Finance ROMANIA Chief delegate Ms M. Ciobanu Ambassador, Permanent Representative, Geneva Delegate(s) Mr D. Pulbere Director of Cabinet, Customs National Authority Ms T. Brega Expert, Ministry of Public Finance Ms L. Constantin Commissioner, Financial Guard Ms M. Marinica Advisor, National Agency for Fiscal Administration, Ministry of Economy and Finances Ms P. Craioveanu Expert, Ministry of Agriculture and Rural Development Dr. M. Ciobanu Coordinator, Pneumoftiziology Institute “Marius Nasta” Mr F. Pironea Second Secretary, Permanent Mission, Geneva
LIST OF PARTICIPANTS
201
RUSSIAN FEDERATION Chief delegate Mr V.A. Nebenzia Deputy Permanent Representative, Geneva Alternate(s) Mr V.M. Zimyanin Senior Counsellor, Permanent Mission, Geneva Mr O.Yu. Sazanov Director, Department of State Regulation of Domestic Trade, Ministry of Industry and Trade Adviser(s) Mrs V.V. Oseledko Deputy Director, Department of State Policy on Technical Regulation and Identity of Measurements, Ministry of Industry and Trade Mr N.N. Sikachev Senior Adviser, International Organizations Department, Ministry of Foreign Affairs Dr N.A. Kostenko Head of Division, Department of Health Protection and Sanitary-Epidemiological Human Well-being, Ministry of Health and Social Development Mr O.O. Salagai Deputy Head, Legal Department, Ministry of Health and Social Development Mrs O.V. Galagan Deputy Head, Department of Budget Policy in Social Field and Science, Ministry of Finance Mrs A.N. Lozovaia Adviser, Department of Taxation, Customs and Tariff Policy, Ministry of Finance Mr V.A. Marshalkin Senior Officer, Criminal Investigation Department, Ministry of Internal Affairs
Mr Yu.V. Zaitsev Officer, Main Department for Fight against Smuggling, Federal Customs Service Ms N.A. Kuleshova Chief Specialist, Department of International Cooperation, Ministry of Health and Social Development Dr A.V. Pavlov Counsellor, Permanent Mission, Geneva Mr A.V. Markov First Secretary, Permanent Mission, Geneva Mr D.A. Khudov Attaché, Permanent Mission, Geneva RWANDA Chief delegate Mme V. Sebudandi Ambassadeur, Représentant permanent, Genève Delegate(s) M. A. Kayitayire Premier Conseiller, Mission permanente, Genève Mme C. Kamikazi Cadre, Service Multilatéral, Mission permanente, Genève SAMOA Delegate(s) Dr D.P.G. Meredith Health Education and Promotion Officer, Ministry of Health SAO TOME AND PRINCIPE Delegate(s) Dr C. Neto de Barros Conseiller technique, Point focal antitabac, Ministère de la Santé
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SAUDI ARABIA Chief delegate Mr K.J. Al Jehani Legal Advisor, Saudi Customs, Ministry of Finance Delegate(s) Mr S. Al Nofaie First Secretary, Permanent Mission, Geneva SENEGAL Chief delegate M. B.C. Mbaye Ambassadeur, Représentant permanent, Genève Delegate(s) M. M. Mbaye Secrétaire général, Ministère de la Santé, de la Prévention et de l’Hygiène publique M. M. Cisse Inspecteur, Affaires administratives et financières M. O. Ndao Point focal Lutte antitabac, Ministère de la Santé, de la Prevention et de l’Hygiène publique M. B.M. Fall Chef, Bureau de la Réglementation et des Relations internationales, Direction des Douanes, Ministère de l’Economie et des Finances Mme R. Aw Aidara Commissaire, Enquêtes économiques, Ministère du Commerce Mme M. Sy Conseiller, Chargée des Questions de Santé, Mission permanente, Genève
SERBIA Chief delegate Mr S. Vukcevic Ambassador, Permanent Representative, Geneva Delegate(s) Ms S. Jelaca Director, Directorate on Tobacco, Ministry of Finance Mr B. Vidovic Senior Customs Inspector, European Integration and International Customs Cooperation Section, Ministry of Finance Ms V. Despotovic Head, Market Inspection Division, Ministry of Trade and Services Mr V. Ceklic Advisor, EU Harmonization Unit, Ministry of Justice SEYCHELLES Chief delegate Mrs F. Robinson Principal Legislative Drafter, Attorney General’s Office Delegate(s) Dr P. Bovet Consultant, Non-communicable Disease Section, Public Health Department SINGAPORE Chief delegate Dr A. Ling Director, Adult Health Division, Health Promotion Board
LIST OF PARTICIPANTS
203
Delegate(s) Ms J. Taylor Deputy Director, Substance Abuse Programme, Health Promotion Board Mr Yeo Sew Meng Head, Operations Management Branch, Customs Mr K. Boo Kia Twuan Senior Operations Management Officer, Customs SLOVAKIA Chief delegate Mr S. Budayová First Secretary, Permanent Mission, Geneva Delegate(s) Mr V. Stasko Second Secretary, Customs and Fiscal issues, Permanent Delegation to the European Union, Brussels SLOVENIA Chief delegate Mr B. Franjga Customs Attaché, Permanent Mission to the European Union, Brussels Delegate(s) Ms A. Mravlja Under-Secretary, Ministry of Finance Mr L. Kremzar Under-Secretary, Ministry of Justice SOLOMON ISLANDS Delegate(s) Dr C. Alependava Under-Secretary, Ministry of Health and Medical Services
SOUTH AFRICA Chief delegate Ms N. Matsau Deputy Director-General, International Affairs, Department of Health Deputy chief delegate Ms N. Dladla Health Representative, Minister, Permanent Mission, Geneva Delegate(s) Mr R. Morewane Cluster Manager, Department of Health Ms V. Moodley Director, Department of Health Mr H. Kleynhans Director, Legal Services, Department of Health Ms L. Van Zyl Director, Department of Trade and Industry Mr S. Mathate Deputy Director, Department of Trade and Industry Mr A. Jonas Revenue Services Mr C. Lebepe Counsellor of Customs, South African Embassy, Brussels SPAIN Chief delegate Dr. J. Garrigues Embajador, Representante Permanente, Ginebra Deputy chief delegate Dr. M.B. Montesino Embajador, Representante Permanente Adjunto, Ginebra
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Delegate(s) Dr. F.J. Aparicio Alvarez Consejero, Misión Permanente, Ginebra Dr. M. Goizueta Sanchez Consejero de Finanzas, Misión Permanente, Ginebra Dra. I. Rodriguez Subdirectora General de relaciones Internacionales, Departamento de Aduanas Dr. J.L. Fernandez Ranz Consejero de Finanzas, Representación Permanente ante la Union Europea, Bruselas Dr. J. Catalan Gonzáles Jefe de Area de Investigaciónes, Subdireccion General de Operaciones, Dirección General Adjunta de Vigilancia Aduanera Dr. P. Rodriguez López Coordinador, Area de Control del Mercado, Comisionado para el Mercado de Tabacos Sr. D.A. Carpintero Consejero, Medio Ambiente, Medio Rural y Marino, Misión Permanente, Ginebra SRI LANKA Chief delegate Dr D. Jayatilleka Ambassador, Permanent Representative, Geneva Delegate(s) Mrs I. Demuni de Silva Deputy Solicitor General, Attorney General’s Department, Minister of Healthcare and Nutrition Mr T.R.N.M. Liyanaarachchi Government Analyst, Government Analyst’s Department, Ministry of Foreign Affairs Mr U.L.M. Jauhar Minister, Permanent Mission, Geneva
Mr S. Ekanayake Minister Counsellor, Permanent Mission, Geneva Ms M. Mallikaratchy Second Secretary, Permanent Mission, Geneva SUDAN Delegate(s) Dr M.A. Widad Yousif Tobacco Coordinator SURINAME Chief delegate Ms E.L. Martodikromo Chair, National Board on Tobacco Control, Ministry of Health Delegate(s) Mr A. Jadoenathmissier Member, National Board on Tobacco Control, Head, Department of Import, Export and Currency, Ministry of Trade and Industry SWAZILAND Chief delegate Dr T.A. Dlamini Ambassador, Permanent Mission, Geneva Delegate(s) Mr V. Dlamini Legal Advisor, Ministry of Health and Social Welfare Mr S.L. Msibi Counsellor, Permanent Mission, Geneva SWEDEN Chief delegate Mr H. Dahlgren Ambassador, Permanent Representative, Geneva
LIST OF PARTICIPANTS
205
Deputy chief delegate Ms E.M. Hellstrand Legal Adviser, Ministry of Justice Delegate(s) Ms A. Molin Hellgren Counsellor, Permanent Mission, Geneva Mr M. Grönlund Counsellor, Permanent Mission, Brussels Ms A. Ekman Senior Advisor, National Board of Health and Social Affairs Mr J. Falkman Senior Customs Adviser, Swedish Customs Ms G. Kalm Counsellor, Permanent Mission to the European Union, Brussels Ms S. Jerneck Head of Section, Ministry of Health and Social Affairs Mr B. Legnetstedt Deputy Director, Ministry of Finance Ms U. Lindblom Head of Section, Ministry of Health and Social Affairs Mr K. Persson Senior Customs Advisor, Swedish Customs Mr T. Ragnas Senior Customs Advisor, Swedish Customs Ms K. Wessman Senior Customs Advisor, Swedish Customs Ms H. Widstam First Secretary, Permanent Mission, Geneva Miss L. Andersson Attaché, Permanent Mission, Geneva
Mr D. Iliopoulos Ambassador, General Secretariat of the Council of the European Union, Head, Liaision Office, Mr B. Hanses General Secretariat of the Council of the European Union, Liaision Office, Geneva Mr P. Lefébure Administrator, General Secretariat of the Council of the European Union Ms I. Horváthová General Secretariat of the Council of the European Union, Liaision Office, Geneva Ms I. Simantoni Principal Administrator, General Secretariat, Council of the European Union, Brussels SYRIAN ARAB REPUBLIC Delegate(s) Dr B. Abou Al Zahab Director, Tobacco Control Programme, Ministry of Health THAILAND Chief delegate Mr Sihasak Phuangketkeow Ambassador, Permanent Representative, Geneva Delegate(s) Mr Chayan Ekarohit Minister, Office of Customs Counsellor, Royal Thai Embassy, Brussels Professor Prakit Vathesatogkit Consultant, Tobacco Control, Department of Disease Control, Ministry of Public Health Dr Panuwat Panket Director, Bureau of Non-communicable Diseases, Department of Disease Control, Ministry of Public Health
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Professor Nuntavarn Vichit-Vadakan Dean, Faculty of Public Health, Thammasat University Mr Poonsak Suvannarat Senior Expert, Excise Audit, Bureau of Law Enforcement, Excise Department, Ministry of Finance Miss Tanyarat Mungkalarungsi First Secretary, Permanent Mission, Geneva Mr Thanawat Manathat Third Secretary, Treaty Division, Department of Treaties and Legal Affairs, Ministry of Foreign Affairs TOGO Delegate(s) Professeur O. Tidjani Chef de Service, Maladies infectieuses au Chu Tokoin TONGA
Mr E.S. Yüksel Counsellor, Permanent Mission, Geneva Mr K. Demirbilek Head of Group, Ministry of Finance, Revenue Administration Mr Y. Özbek Legal Counsellor, Permanent Mission, Geneva Dr P. Altan Head of Section, Ministry of Health, General Directorate of Primary Health Care Mr A. Korkmaz Senior Controller, Undersecretariat of Customs TUVALU Chief delegate Mr K. Kaitu Permanent Secretary, Ministry of Health UGANDA Delegate(s)
Delegate(s) Dr P. Vivili Senior Medical Officer, Ministry of Health TRINIDAD AND TOBAGO Delegate(s) Ms S. Young First Secretary, Permanent Mission, Geneva TURKEY Delegate(s) Chief delegate Mr I. Hatipoglu Vice President, Ministry of Finance, Revenue Administration Delegate(s) Mr H. Görün Advisor, Tobacco, Tobacco Products and Alcoholic Beverages Market Regulatory Authority Mrs A. Shliakotina Second Secretary, Permanent Mission, Geneva UNITED ARAB EMIRATES Chief delegate Dr E. Al Mansoori Director, International Relations and Organizations Department, Ministry of Health Mr O.J. Edule Chargé d’Affaires a.i., Permanent Mission, Geneva UKRAINE Chief delegate Ms A. Grygorenko Deputy Director, Department for National Health and Epidemiological Surveillance
LIST OF PARTICIPANTS
207
Delegate(s) Mrs A.M. Al Suwaidi Head, Tax Section, Income Development Department, Ministry of Finance Mr A.M. Al Baker Federal Customs Authority Mr M.M. Abdel Rahman Sharja Customs Mr O.H. Al Housain Customs Mr F.A. Al Mansouri Director, Income Development Department, Ministry of Finance Mr H. Al Dhaheri Officer UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND Chief delegate
UNITED REPUBLIC OF TANZANIA Chief delegate Mr M.Y.C. Lumbanga Ambassador, Permanent Representative, Geneva Deputy chief delegate Dr J. Mbatia Acting Director, Hospital Services, Ministry of Health and Social Welfare Delegate(s) Dr G. Kiangi Assistant Director, Health Education Section, Ministry of Health and Social Welfare Mr B.H. Luvanda First Secretary, Permanent Mission, Geneva Mr D.B. Kaganda First Secretary, Permanent Mission, Geneva URUGUAY
Mrs J. Kelly Tobacco Strategy Project Manager, Her Majesty’s Revenue and Customs Delegate(s) Mrs C. Goodman Criminal Investigation Strategy and Planning, Her Majesty’s Revenue and Customs Mr R. Taylor Tobacco Strategy Delivery Group Leader, Her Majesty’s Revenue and Customs Mr A. Baldrick Criminal Investigation Strategy and Planning, Her Majesty’s Revenue and Customs Ms A. Shallard-Brown Permanent Representation to the European Union, Brussels
Chief delegate Dr. W. Abascal Director, Programa de Control Tabaco Delegate(s) Sr. R. Prato Director Nacional de Aduanas Sr. C. Schiaffino Custom Officer, Customs Sra. L. Trucillo Representante Permanente Alterno, Ginebra VANUATU Delegate(s) Mr L. Tarivonda Director, Public Health
208 INB: PROTOCOL ON ILLICIT TRADE IN TOBACCO PRODUCTS – THIRD SESSION
VENEZUELA (BOLIVARIAN REPUBLIC OF) Chief delegate Sra. N. González Gerencia de Contraloria Aduanera, Servicio Nacional Integrado de Administración Aduanera y Tributaria, SENIAT Delegate(s) Sr. G. Mundaraín Hernández Embajador, Representante Permanente, Ginebra Sr. L. Arias Palacio Embajador, Representante Permanente Alterno, Ginebra Sra. R. Melkom Coordinadora de Regulación y Control de Tabaco, Servicio Autónomo de Contraloria Sanitaria, Ministerio del Poder Popular para la Salud y Protección Social Sr. J. García Contraloria Aduanera, Servicio Nacional Integrado de Administración Aduanera y Tributaria, SENIAT Sr. R. Gelvez Gerencia de Contraloria Aduanera, Servicio Nacional Integrado de Administración Aduanera y Tributaria, SENIAT Sra. S. Negrin Psicóloga de Reducción de la Demanda, Oficina Nacional Antidrogas, ONA Sr. E. Bitetto Gavilanes Primer Secretario, Misión Permanente, Ginebra Sra. O. Tacoa Salas Segundo Secretario, Coordinación de Asuntos Políticos Multilaterales del Ministerio del Poder para Relaciones Exteriores Sra. A. García Asesora de la Oficina de Relaciones Internacionales, Oficina Nacional Antidrogas, ONA
Sr. J.L. Lobo Funcionario de Apoyo del Sector Político, Misión Permanente, Ginebra VIET NAM Chief delegate Mr Nguyen Hung Dung Director-General, Market Control Department, Ministry of Industry and Trade Delegate(s) Mr Phan Van Lay Deputy Director-General, C15 Department, General Department of Police, Ministry of Public Security Mr Vo Van Quyen Deputy Director-General, Domestic Market Department, Ministry of Industry and Trade Mr Do Van Dung Deputy Director-General, Complaint and Anticorruption Department, Office of the Government Mr Hoa Huu Long Deputy Director-General, International Law Department, Ministry of Justice Mr Trieu Quang Thin Head, General Affairs and Cooperation Division, Market Control Department, Ministry of Industry and Trade Mr Duong Xuan Sinh Deputy Chief, Enforcement Division, General Department of Customs, Ministry of Finance Mr Tran Ngoc Anh Deputy Chief, Vietnam Tobacco Association Mr Le Hai Trieu Third Secretary, Permanent Mission, Geneva Mr Pham Kien Nghiep Secretary General, Vietnam Tobacco Association
LIST OF PARTICIPANTS
209
YEMEN Delegate(s) Dr M.M.A. Al-Khawlani Director, National Tobacco Control Programme, Ministry of Public Health and Population ZAMBIA Chief delegate Mr D. Mwape Ambassador, Permanent Representative, Geneva Delegate(s) Mr J. Mayeya Expert, Mental Health, Ministry of Health Mr C.M. Sitwala First Secretary, Legal, Permanent Mission, Geneva REPRESENTATIVES OF STATES NON-PARTIES ANDORRA Chief delegate Mme M. Gessé Représentant permanent adjoint, Mission permanente, Genève Delegate(s) Mme J. Sala Branchadell Mission permanente, Genève ARGENTINA Delegate(s) Sr. P. Cavaleri Consejero, Misión Permanente, Ginebra
COTE D’IVOIRE Chief delegate M. G.-A. Gauze Ambassadeur, Représentant permanent, Genève Delegate(s) M. K. Kouadio Premier Conseiller, Mission permanente, Genève Mme B. Quacoe Conseiller, Mission permanente, Genève CUBA Chief delegate Sr. J.A. Fernández Embajador, Representante Permanente, Ginebra Deputy chief delegate Sr. J. Ferrer Rodríguez Ministro Consejero, Misión Permanente, Ginebra Delegate(s) Sr. F. Ortega Pérez Consejero, Misión Permanente, Ginebra Sr. C.F. Martín Funcionario de la Dirección de Organismos Internacionales, Ministerio del Comercio Exterior y la Inversión Extranjera Sr. R. Pino Álvarez Segundo Secretario, Misión Permanente, Ginebra Sra. G. Díaz Rodríguez Tercera Secretaria, Misión Permanente, Ginebra
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CZECH REPUBLIC Chief delegate Mr T. Husák Ambassador, Permanent Representative, Geneva Delegate(s) Mr J. Volf Third Secretary, Permanent Mission, Geneva Ms B. Soušková Third Secretary, Permanent Mission, Geneva Mr L. Mynár Customs Attaché, Permanent Representation to the European Union, Brussels Mr D. Chovanec Customs Vice-Attaché, Permanent Representation to the European Union, Brussels Mr K. Lukeš National Coordinator, Customs Union Working Party, Customs Administration Mr T. Slovácek Customs Supervision Expert, General Directorate of Customs Ms L. Kresslová Lawyer, International Department for Criminal Law, EU Criminal Law Unit, Ministry of Justice Ms H. Sovinová Head, Coordination, Monitoring and Research Unit for the European Alcohol and Tobacco Action Plan, Ministry of Health Ms A. Chalupová Attaché, Permanent Mission, Geneva Ms K. Chobotová Attaché, Permanent Mission, Geneva Ms M. Špillingová Permanent Mission, Geneva
Mr J. Štepánek Permanent Mission, Geneva Mrs L. Wondrichová International Relations and European Union, Department of the Ministry of Health DOMINICAN REPUBLIC Chief delegate Sr. H.L. Hernández Sánchez Ambajador, Representante Permanente, Ginebra Delegate(s) Sr. C. Segura Ministro Consejero, Misión Permanente, Ginebra HAITI Delegate(s) M. J.B. Alexandre Ministre Conseiller, Mission permanente, Genève HOLY SEE Chief delegate Archevêque S.M. Tomasi Nonce Apolistique, Observateur permanent du Saint-Siège Delegate(s) Mgr. E. Scirpoli MOROCCO Chief delegate M. M. Mahfoudi Chef, Division des Maladies non transmissibles, Ministère de la Santé Delegate(s) M. A. Samri Ministre, Mission permanente, Genève
LIST OF PARTICIPANTS
211
SWITZERLAND Chief delegate M. A. Von Kessel Section Organisations internationales, Office fédéral de la Santé publique, Département fédéral de l’Intérieur Delegate(s) M. S. Schmidt Section Imposition du Tabac et de la Bière, Administration fédérale des Douanes, Département fédéral des Finances M. J.-D. Bieler Section Organisations internationales, Office fédéral de la Santé publique, Département fédéral de l’Intérieur M. M. Anderegg Collaborateur spécialisé, Programme national Tabac, Division Sécurité alimentaire, Office fédéral de la Santé publique (DFI) Alternate(s) M. P. Vuilleme Section Alcool et Tabac, Office fédéral de la Santé publique, Département fédéral de l’Intérieur M. T. Schuler Juriste, Division Droit, Office fédéral de la Santé publique, Département fédéral de l’Intérieur Mme S. Vollenweider Mission permanente, Genève TUNISIA Chief delegate M. A. Jemal Ambassadeur, Représentant permanent, Genève
Delegate(s) Dr M. Nabli Inspecteur divisionnaire, Ministère de la Santé M. B. Masmoudi Premier Secrétaire, Mission permanente, Genève UNITED STATES OF AMERICA Chief delegate Mr B. Beckwith Tobacco Programme Manager, Alcohol and Tobacco Tax and Trade Bureau, US Department of the Treasury Delegate(s) Mr D. Hohman Health Attaché, Permanent Mission, Geneva Mr J. Lom Deputy Chief Counsel, Alcohol and Tobacco Tax and Trade Bureau, US Department of the Treasury Adviser(s) Ms S. Goodson Program Manager, International Affairs, Customs and Border Protection ZIMBABWE Mr C. Chipaziwa Ambassador, Permanent Representative, Geneva Delegate(s) Mr E. Mafemba Deputy Permanent Representative, Geneva Mrs P. Nyagura Counsellor, Permanent Mission, Geneva Mr C. Mucheka Counsellor, Permanent Mission, Geneva
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REPRESENTATIVES OF THE UNITED NATIONS AND RELATED ORGANIZATIONS UNITED NATIONS OFFICE OF DRUGS AND CRIME Dr B. Leroy Senior Interregional Legal Adviser, Organized Crime and Criminal Justice Section, Division for Treaty Affairs Ms V. Lebaux Chief, Organized Crime and Criminal Justice Section, Treaty and Legal Assistance Branch REPRESENTATIVES OF INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS AFRICAN UNION Mrs K. Masri Permanent Representative, Geneva Ms B. Naidoo First Secretary, Permanent Mission, Geneva ORGANIZATION OF THE ISLAMIC CONFERENCE Dr S. Alpay Director-General, Statistical, Economic and Social Research and Training Centre for Islamic Countries (SESRIC) Mr E. Bakimh Researcher, Statistical, Economic and Social Research and Training Center for Islamic Countries (SESRIC) SECRETARIAT OF THE PACIFIC COMMUNITY Ms J. Mckenzie Non-communicable Diseases Advisor, Tobacco and Alcohol WORLD CUSTOMS ORGANIZATION Ms A. Menon Technical Officer
REPRESENTATIVES OF NONGOVERNMENTAL ORGANIZATIONS AND ACADEMIC INSTITUTES Corporate Accountability International Ms M. Brown Mr Y.F.D. Mazorra Mr B. Hirsch Mr P. Jakpor Ms K. Mulvey FDI World Dental Federation Dr D. Alexander Mr J. Crail Framework Convention Alliance on Tobacco Control Mr B. Agarwal Miss S. Ahmed Mr A. Akinremi Dr H. Algouhmani Mr I. Ali Ms D. Arnott Dr M. Assunta Dr G. Bakhturidze Ms E. Beguinot Mr T. Beutler Dr E. Bianco Mr E. Blecher Mr N. Boister Ms C. Cagnat-Lardeau Ms M.-A. Cardenas Ms M. Carter Ms S. Cavanagh Mr J. Colledge Ms A. Cox Mr F. Damphousse Dr R. Daynard Mr P. Diethelm Dr U. Dorotheo Mr H. El Rouby Dr F. Fouad Mr S. Garçon Mr F. Grogna Dr O. Gunasekera Dr G. Heydari Ms M. Heyward Mr L. Huber
LIST OF PARTICIPANTS
213
Mrs T. Huber Mr W. Hunte Mr R. Iglesias Ms S. John Ms P. Johns Mr A. Kerr Ms D. Khaltourina Ms R. Kitonyo Mr E. Kodjo Ms P. Kumari Ms P. Lambert Ms I. Leal Mr J. Liberman Ms B. Little Ms A. Lyman Mr I. Masud Dr B. Mcgrady Mr H. Mersmann Dr M. Mohamed Dr M. Mohamed Ould Sidi Mr S. Mulmi Dr P. Musavuli Luhindi Ms S. Nasrin Dr A. Oluwafemi Dr L. Onigbodi Dr H.A. Pham Thi Mr C. Radu-Loghin Mr A. Ramos Ms S. Rushton Ms L. Salgado Dr Y. Saloojee Mr N. Schneider Ms L. Sferrazza Ms M. Silva Ms A. Singkouson Ms N. Thaker Mr F. Thompson Ms M. Tilson Ms N. Toropova Ms L. Tsoneva Mr S. Vaite Mr J. Verovic Mr I. Wilmore Ms X. Yu
Professor J. Towsend Mr A. Saifuddin Mr P. Johnson Mrs F. Bertzletti Kemp International Federation of Pharmaceutical Manufacturers and Associations Mr A. Bonser International Organization for Standardization Mr T.J. Hancox International Union against Cancer Mr L. Joossens Mr R. Cunningham Mrs S. Moreira International Union against Tuberculosis and Lung Disease Mrs S. Jones Mrs S. Ratte Mrs M. Molinari Mr G. Sonora Mr D. Medlev Mr P. Lal Mrs A. Ellison-Barnes Mr P. Galatis Mr R. Singh Mr U. Nguyen World Heart Federation Ms G. Gasser World Trade Institute Professor T. Cottier Managing Director
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