Conference of the Parties Intergovernmental Negotiating Body on a Protocol on Illicit Trade in Tobacco Products Third session Geneva Switzerland, 28 June – 5 July 2009
Provisional agenda item 4
FCTC/COP/INB-IT/3/INF.DOC./2 23 April 2009
Revised Chairperson’s text for a protocol on illicit trade in tobacco products Note by the Chairperson
1. In accordance with the request of the Intergovernmental Negotiating Body at its second session, I have elaborated a revised Chairperson’s text1 for consideration by the Negotiating Body at its third session. For this revision, as requested by the Negotiating Body, I have taken into account the discussions and proposals made at the second session, including the texts and opinions submitted by its committees and the “Working Group on the scope” and the results of the expert reviews and legal advice received subsequently. In this revision, I was supported by the Convention Secretariat, the Bureau and experts. 2. The intention of this note is to provide a brief overview of the revision, focusing on the most substantial changes, to facilitate the review of the text and discussions at the third session of the Intergovernmental Negotiating Body. This note also contains a list of references to other treaties from which specific language was taken in drafting the revised Chairperson’s text (see annex).
Structure 3. The revised Chairperson’s text maintains, in general, the structure of the text discussed by the Intergovernmental Negotiating Body at its second session. The provisions contained in the text are, however, now numbered as Articles to make the text more reader-friendly and to bring it into line with the structure used in other international treaties. Additionally, the title of Part IV was changed from “Enforcement” to “Offences and sanctions”, which appeared better to reflect the content of this Part.
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Document FCTC/COP/INB-IT/3/3.
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Preamble 4. The preamble has been revised and substantially amended on the basis of the discussions held by the Intergovernmental Negotiating Body at its second session and especially the textual submissions received from Parties during the session.
Scope of the Protocol 5. At the second session of the Intergovernmental Negotiating Body, there was a substantive discussion about the proposed inclusion in the initial Chairperson’s text1 of the topics ”tobacco”, “key inputs” and “manufacturing equipment”. 6. The review of the scope of the Protocol, conducted at the request of the Intergovernmental Negotiating Body, concluded that, from a legal point of view, key inputs could be included in the draft Protocol.2 In addition, I requested expert advice on the technical aspects of the scope of this Protocol. As I was advised that there are no “key inputs” that are used only for the manufacture of tobacco products, I therefore decided not to include “key inputs” in the revised Chairperson’s text. On the basis of legal and technical advice, however, I have maintained the references to “tobacco” and “manufacturing equipment used in the manufacture of tobacco products”. 7. As requested by the Intergovernmental Negotiating Body, I have also included a draft provision addressing the scope of the Protocol (Article 3).
Tracking and tracing 8. As a result of the discussions and requests made during the Intergovernmental Negotiating Body at its second session, the provisions on tracking and tracing were substantially changed. I based my revision on the conclusions of the expert review as well as on a number of discussions I had with experts during the intersessional period. 9. The revised provisions are based on the idea that certain key data – those listed in paragraph 4 of Article 7, Tracking and tracing – are accessible to all Parties in the event of seizure of products covered by the Protocol from an international database, which I have named the “clearing-house” database. I have proposed that this database be maintained by the Convention Secretariat. 10. At the domestic level, each Party is required to establish a national central point for the collection of information for the Party, with liaison with the clearing house, as outlined in Article 7. In this connection, I also requested the Convention Secretariat to assess, in selected countries, the technological and resource requirements which will be needed to implement such a system at national level, particularly in a lower resource environment, with a view of presenting the results to the Intergovernmental Negotiating Body at its third session.
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Document FCTC/COP/INB-IT/2/3. Document FCTC/COP/INB-IT/3/INF.DOC./6.
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Relationship with the United Nations Convention against Transnational Organized Crime 11. During the general discussions at the Intergovernmental Negotiating Body at its second session on provisions the language of which was based on that of provisions of the United Nations Convention against Transnational Organized Crime, and, in particular, of Parts IV and V, Enforcement and International cooperation, Parties raised concerns about possible overlaps and conflicts. Moreover, the feeling was expressed that the provisions concerning international criminal law, such as Mutual legal assistance and Extradition, outweighed the core substantive parts of the text, which are found mainly in Part III, Supply chain control. 12. In the light of these deliberations and in close consultation with the Secretariat of the United Nations Convention against Transnational Organized Crime and with other legal experts, I have revised the relevant provisions of the text. First, to avoid any overlap between the offences established under our draft Protocol and those established under the United Nations Convention against Transnational Organized Crime, the new paragraphs 3 and 4 of Article 2 of the revised Chairperson’s text refer directly to that treaty. This reference is designed mainly to avoid a possible overlap regarding offences that are serious crimes, transnational in nature and involve an organized criminal group1 and would therefore already fall within the scope of the United Nations Convention against Transnational Organized Crime.2 13. Second, in relation to the criminal justice provisions on mutual legal assistance (see Article 30) and extradition (see Articles 31 and 33), I have proposed provisions that are more concise than in the initial Chairperson’s text but which still provide adequate detail. 14. Third, I have introduced a definition of “serious crime” in Article 1, Use of terms, in line with the definition in the United Nations Convention against Transnational Organized Crime.
Internet sales 15. In Article 10, I have amended the title of the provision to capture possible future technological changes and advances by including the phrase “or any other evolving technology-based” (modes of sale). 16. As I did not receive a clear indication at the second session of the Intergovernmental Negotiating Body about whether Parties wished to ban sales via the Internet, I have proposed two options for this provision, each presented in square brackets. The first option contains only minor amendments to the provision that was contained in the initial Chairperson’s text. 17. The second option is a draft provision to ban all sales of tobacco products via the Internet, telecommunication or other evolving technology-based mode of sales. The outcome of the expert
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For definitions, see Article 2 of the United Nations Convention against Transnational Organized Crime. Article 3 of the United Nations Convention against Transnational Organized Crime.
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review on this matter,1 as well as the advice I received from a number of experts, led me to propose this provision.
Free-trade areas and duty-free sales 18. The proposed provision in Article 11 is based on the textual proposals submitted during the second session as well as the outcome of the expert review on this matter.2 As requested by the Intergovernmental Negotiating Body at its second session, I have also included free-trade areas (sometimes referred to as ”free-trade zones”).
Title of the draft protocol 19. During the second session of the Intergovernmental Negotiating Body, a number of delegations expressed concern about the title of the draft protocol. Parties suggested that it be changed in such a way as to also reflect the objective of the protocol, for example by adding ”the elimination of” or ”to combat”, so that the title would read ”Protocol on the elimination of illicit trade in tobacco products” or ”Protocol to combat illicit trade in tobacco products”. Although I agree with such a revision, particularly with the option to revise the title to ”Protocol on the elimination of illicit trade in tobacco products”, I deem that it would be more appropriate for the Negotiating Body to take this key decision at its third session.
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Document FCTC/COP/INB-IT/3/INF.DOC./4. Document FCTC/COP/INB-IT/3/INF.DOC/3.
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ANNEX Reference document This annex contains a list of the Articles in the revised Chairperson’s text for a protocol on illicit trade in tobacco products1. When a provision in the revised Chairperson’s text is based on language from international treaties or other sources, the sources are indicated below the Article title. References marked as “modified” indicate that language from the agreement was used with modifications. References that are not marked as “modified” indicate that the language has been used without changes, with few exceptions such as replacing “State Party” with “Party”, “Convention” with “Protocol” or “Secretariat” with “Convention Secretariat”.
Preamble PART I: INTRODUCTION Article 1 (Use of terms) 4. 5. 8. 12. 13. 14. 16. “Confiscation” “Illicit trade” “Seizure” “Serious crime” “Tobacco products” UNTOC,2 Art. 2 (g), modified WHO FCTC,3 Art. 1 (a) UNTOC, Art. 2 (f), modified UNTOC, Art. 2 (b) WHO FCTC, Art. 1 (f) “Controlled delivery” UNTOC, Art. 2 (i), modified “Proceeds of crime” UNTOC, Art. 2 (e), modified
Article 2 (Relationship with the W HO Framework Convention on Tobacco Control and other agreements and legal instruments) Article 3 (Scope of the Protocol)
PART II: GENERAL OBLIGATIONS Article 4 (General obligations) Paragraph 6 1 2 3
WHO FCTC, Art. 5.6, modified
Document FCTC/COP/INB-IT/3/3. United Nations Convention Against Transnational Organized Crime. WHO Framework Convention on Tobacco Control.
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Annex
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 9 (Security and preventive measures) Article 10 (Sale by internet, telecommunication or any other evolving technology) Article 11 (Free-trade areas and duty free sales)
PART IV: OFFENCES AND SANCTIONS Article 12 (Offences) Paragraph 1 (chapeau) Paragraph 2 (chapeau) UNTOC, Art. 23 (chapeau), modified UNTOC, Art. 23 (chapeau), modified
Article 13 (Liability of legal persons) Paragraph 1 Paragraph 2 Paragraph 3 Article 14 (Sanctions) Paragraph 2 Paragraph 3 Paragraph 4 Paragraph 5 UNTOC, Art. 10.4, modified UNTOC, Art. 11.2, modified UNTOC, Art. 11.5, modified UNTOC, Art. 11.6 UNTOC, Art. 10.1, modified UNTOC, Art. 10.2 UNTOC, Art. 10.3, modified
Article 15 (Search of premises and seizure of evidence) Article 16 (Confiscation and seizure of assets) Paragraph 1 (a) (b) Paragraph 2 Paragraphs 3–4 Paragraph 5 Paragraphs 6–7 Paragraphs 8–9 UNTOC, Art. 12.1 UNTOC, Art. 12.1 (a), modified UNTOC, Art. 12.1 (b), modified UNTOC, Art. 12.2 UNTOC, Art. 12.3–4, modified UNTOC, Art. 12.5 UNTOC, Art. 12.6–7, modified UNTOC, Art. 12.8–9
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Article 17 (Seizure payments) Article 18 (Destruction) Article 19 (Special investigative techniques) Paragraphs 1–2 Paragraph 3 UNTOC, Art. 20.1–2, modified UNTOC, Art. 20.3
PART V: INTERNATIONAL COOPERATION Article 20 (Information sharing: statistical data) Paragraph 1 (a) (b) (c) (d) Report of the expert group1, Paragraph 55 (b), modified Report of the expert group, Paragraph 55 (a), modified Report of the expert group, Paragraph 55 (c), modified Report of the expert group, Paragraph 55 (d), modified
Article 21 (Information sharing: operational data) (b) (c) Report of the expert group, Paragraph 59 (b), modified Report of the expert group, Paragraph 59 (c), modified
Article 22 (Information sharing: confidentiality and protection of information) Paragraph 2 Report of the expert group, Paragraph 62, modified
Article 23 (Assistance and cooperation: training, technical assistance and cooperation in scientific, technical and technological matters) Paragraph 1 Report of the expert group, Paragraph 63, modified
Article 24 (Assistance and cooperation: investigation and prosecution of offences) Paragraph 1 Report of the expert group, Paragraph 66, modified
Article 25 (Protection of sovereignty) Paragraphs 1–2 Article 26 (Jurisdiction) Paragraphs 1–4 Paragraphs 5–6 UNTOC, Art. 15.1–4, modified UNTOC, Art. 15.5–6 UNTOC, Art. 4.1–2
Article 27 (Joint investigations) UNTOC, Art. 19
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Document FCTC/COP/INB-IT/1/4, Annex.
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Article 28 (Law enforcement cooperation) Paragraph 1 (a) (c) (d) (e) (f) (g) Paragraph 2 Paragraph 3 UNTOC, Art. 27.1 (a), modified UNTOC, Art. 27.1 (b), modified UNTOC, Art. 27.1 (c) UNTOC, Art. 27.1 (d), modified UNTOC, Art. 27.1 (e), modified UNTOC, Art. 27.1 (f), modified UNTOC, Art. 27.2, modified UNTOC, Art. 27.3, modified
Article 29 (Mutual administrative assistance) (d) Johannesburg Convention1, Art. 5 (d), modified
Article 30 (Mutual legal assistance) Paragraph 1 Paragraph 2 Paragraph 3 UNTOC, Art. 18.1, modified Convention UN and Associated Personnel2, Art. 12.1, modified Convention UN and Associated Personnel, Art. 12.2, modified
Article 31 (Measures to ensure prosecution or extradition) Paragraph 1 Paragraph 2 (chapeau) (a) (b) Convention UN and Associated Personnel, Art. 13.1 Convention UN and Associated Personnel, Art. 13.2 (chapeau), modified Convention UN and Associated Personnel, Art. 13.2 (a) Convention UN and Associated Personnel, Art. 13.2 (b)
Article 32 (Prosecution of alleged offenders) Convention UN and Associated Personnel, Art. 14 Article 33 (Extradition of alleged offenders) Paragraph 1 Paragraphs 2–3 Paragraph 4 Convention UN and Associated Personnel, Art. 15.1, modified Convention UN and Associated Personnel, Art. 15.2-3 Convention UN and Associated Personnel, Art. 15.4, modified
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International Convention on Mutual Administrative Assistance in Customs Matters (Johannesburg Convention). Convention on the Safety of United Nations and Associated Personnel.
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PART VI: REPORTING Article 34 (Reporting and exchange of information) Paragraph 1 Paragraph 2 Paragraph 3 (a) (b) (c) (d) Paragraph 4 Paragraph 5 WHO FCTC, Art. 21.1, modified WHO FCTC, Art. 21.2 (1), modified WHO FCTC, Art. 21.1 (a) WHO FCTC, Art. 21.1 (b) WHO FCTC, Art. 21.1 (c), modified WHO FCTC, Art. 21.1 (e), modified WHO FCTC, Art. 21.3, modified WHO FCTC, Art. 21.4., modified
PART VII: INSTITUTIONAL ARRANGEMENTS AND FINANCIAL RESOURCES Article 35 (Meeting of the Parties) Paragraph 1 Paragraph 3 Article 36 (Secretariat) Paragraph 2 (a) (b) (c) (d) (e) (f) (h) WHO FCTC, Art. 24.3 (a), modified WHO FCTC, Art. 24.3 (b), modified WHO FCTC, Art. 24.3 (c), modified WHO FCTC, Art. 24.3 (d), modified WHO FCTC, Art. 24.3 (e), modified WHO FCTC, Art. 24.3 (f), modified WHO FCTC, Art. 24.3 (g), modified WHO FCTC, Art. 23.1, modified WHO FCTC, Art. 23.2, modified
Article 37 (Relations between the Meeting of the Parties and intergovernmental organizations) WHO FCTC, Art. 25, modified Article 38 (Financial resources) Paragraphs 1–2 Paragraph 3 Paragraph 5 Paragraph 6 WHO FCTC, Art. 26.1 – Art. 26.2 WHO FCTC, Art. 26.3, modified WHO FCTC, Art. 26.4 WHO FCTC, Art. 26.5, modified
PART VIII: SETTLEMENT OF DISPUTES Article 39 (Settlement of disputes)
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PART IX: DEVELOPMENT OF THE PROTOCOL Article 40 (Amendments to this Protocol) Paragraph 1 Paragraph 2 Paragraphs 3–5 WHO FCTC, Art. 28.1 (1) WHO FCTC, Art. 28.2, modified WHO FCTC, Art. 28.3 – Art. 28.5
Article 41 (Adoption and amendment of annexes to this Protocol) Paragraph 2 Paragraph 3 WHO FCTC, Art. 29.3 WHO FCTC, Art. 29.1, modified
PART X: FINAL PROVISIONS Article 42 (Reservations) WHO FCTC, Art. 30 Article 43 (Withdrawal) Paragraphs 1–2 Paragraph 3 Article 44 (Right to vote) WHO FCTC, Art. 32 Article 45 (Signature) WHO FCTC, Art. 34, modified Article 46 (Ratification, acceptance, approval, formal confirmation or accession) WHO FCTC, Art. 35 Article 47 (Entry into force) Paragraph 1 Paragraph 2 Paragraph 3 Article 48 (Depositary) WHO FCTC, Art. 37, modified Article 49 (Authentic texts) WHO FCTC, Art. 38 = = = WHO FCTC, Art. 36.1 WHO FCTC, Art. 36.2, modified WHO FCTC, Art. 36.4 WHO FCTC, Art. 31.1 - Art. 31.2 WHO FCTC, Art. 31.3, modified
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