WHO Framework Convention on Tobacco Control Conference of the Parties to the WHO Framework Convention on Tobacco Control
Third session Durban, South Africa, 17–22 November 2008 Agenda item 5.3.1 FCTC/COP/3/B/INF.DOC./1 20 November 2008
Note regarding legal implications of the proposal for a standing compliance body contained in the draft decision proposed by India 1. Committee B, during its consideration of item 5.3.1, discussed issues relating to compliance with the Convention. Issues related to compliance can arise in different ways. In particular, a proposal was made to establish a standing compliance body. The Secretariat was requested to advise on the legal implications of that proposal, in terms of amending the Convention. 2. Whether the establishment of such a body requires an amendment of the Convention within the meaning of Article 28 is a question involving law, policy and fact. 3. In a basic definitional sense, an amendment is an agreed change to an instrument. As a legal matter, however, an amendment is a change of a sufficiently substantial nature that its adoption properly falls within the scope of an instrument’s formal amendment procedures. 4. It may not be obvious whether a proposed change to a treaty is a minor alteration or constitutes a major adjustment. Modifications that relate only to administrative or technical matters have been characterized as changes that fall outside formal amendment procedures, as are modifications that may be authorized or mandated by existing provisions of a treaty. On the other hand, modifications that establish changes that, as a domestic matter for treaty Parties, require approval or authorization at a national legislative or parliamentary level, in line with that which applied to the treaty itself, have been characterized as changes subject to formal amendment procedures. 5. Thus, in addressing the question of the legal implications of the proposal to establish a standing compliance body, as well as issues relating more in general to compliance with the Convention, Parties may wish to reflect on a number of relevant Articles of the Convention, in addition to Article 28 on amendments. 6. These articles include: Article 21 on reporting and exchange of information; Article 23 on the Conference of the Parties (particularly concerning the authorities thereof with respect to the establishment of subsidiary bodies under paragraph 5(f) and residual authorities under paragraph 5(g)); as well as Article 27 as further discussed below.
FCTC/COP/3/B/INF.DOC./1
7. Would, for example, a standing compliance body, as has been discussed in Committee B, be properly understood as an administrative matter in connection with the processing and review of reports under Article 21? Would it be understood as a subsidiary body authorized under Article 23(5)(f) as “necessary to achieve the objective of the Convention”? 8. The answers will depend on the function and role of such a body within the framework of the Convention. With additional consideration of that role, conclusions about the legal implications may be clearer. 9. With respect to Article 27, questions about compliance with the Framework Convention naturally arise in case of a dispute between two or more Parties concerning the interpretation or application of the Convention. Pursuant to paragraph 1 of Article 27 of the Convention, Parties shall seek to settle their disputes through a variety of peaceful means of a non-binding nature of their own choice. 10. Paragraph 2 of Article 27 provides that Parties may accept, as compulsory, ad hoc arbitration to solve disputes which they have been unable to solve through the means envisaged in paragraph 1. Such ad hoc arbitration shall be conducted in accordance with procedures to be adopted by consensus by the Conference of the Parties. 11. The procedures referred to in Article 27 have not yet been adopted. The Conference of the Parties may therefore consider whether it wishes to request the Secretariat, or alternatively to establish an expert working group, to elaborate draft procedures for compulsory arbitration under Article 27, taking into account relevant precedents under other international conventions.
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