My personal view is that the FCTC is an imperfect document produced by a deeply flawed process. That is not to say that the United States should not join the treaty. But the FCTC is, and was from the outset destined to be, a largely symbolic document, the primary benefit of which is the raising of worldwide awareness about the public health epidemic caused by tobacco consumption. For an international treaty, the FCTC has remarkably little to do with international relations, and primarily covers matters pertaining purely to domestic law. Virtually every provision of the treaty could be enacted into law by willing countries even in the treaty's absence. Indeed, many countries, such as Canada, Australia, and the United States, had all but a few of the treaty's provisions in place before the negotiations began and went into the negotiations with the goal of bringing the rest of the world up to their standards. The United States, which already has just about the best tobacco control system in the world, thus stands to gain very little for itself by joining the Convention. Nevertheless, the signature of the United States on the FCTC would likely have an important and desirable symbolic effect in encouraging tobacco control efforts elsewhere in the world, and so long as the costs of joining do not appear to be too great, there is little reason why its signature should be withheld. The process by which the treaty was created, however, is another matter. As a member of the United States delegation that negotiated the FCTC, I observed first-hand the process by which the treaty was created. That process proved to be broken, inefficient, and generally inimical to United States interests. The United States may have managed to dodge a bullet this time around insofar as the document created by that process-the FCTC-is relatively benign, and may even prove to be somewhat helpful. In considering whether to join the treaty, however, the United States ought to be leery of taking any actions that might be seen as implicitly endorsing the underlying negotiation process or as sending a signal that the United States would be willing to participate in a similar negotiation process with respect to other treaties in the future. In this piece, I will discuss several of the FCTC's more controversial provisions while highlighting key features of the negotiations that I believe the United States should strive to avoid being repeated in the future.
Jacob, Gregory F.
Chicago Journal of International Law:
1, Article 19.
Available at: http://chicagounbound.uchicago.edu/cjil/vol5/iss1/19