• end game
• human rights
• litigation
• secondhand smoke
• tobacco industry

Children’s human rights are of paramount importance in discussions on tobacco control. Children are regularly exposed to second-hand smoke (SHS), and as approximately 90% of smokers start before the age of 18, the tobacco industry views children as replacement smokers.1 At the recent Conference of States Parties (COP7) held in India (7–12 November 2016), the 180 States Parties of the WHO Framework Convention on Tobacco Control (FCTC) unequivocally reinforced the link between human rights and tobacco control measures.2 Despite this pronouncement, a child-rights approach was under-emphasised in the COP7 reporting, which is a missed opportunity as this provides important—hitherto largely unused—legal tools to protect the health and well-being of children. Rights-based reasoning has, in general, prompted changes in social rights and health policy, and this approach therefore offers considerable potential in protecting the rights of children in the context of tobacco control.3

The Convention on the Rights of the Child (CRC) is the most widely endorsed human rights treaty in the world. It is legally binding on 196 states parties. Notably, the CRC obliges governments and third parties to protect and promote a range of rights relevant to tobacco control, including two central tenets: children’s right to health (Article 24 CRC) and the general norm that children’s best interest shall be a primary consideration in the application and implementation of the Convention (Article 3 CRC) (for a comprehensive overview of relevant rights, see table 1). In this commentary, we set the stage by elaborating on these two ‘umbrella norms’ as relevant to smoking and cessation and exposure to SHS in children.

This child-specific human rights framework is reinforced by the FCTC, which explicitly recognises and reinforces the importance of the CRC in tobacco control (see box 1).

The CRC committee, the monitoring body of the CRC, clarifies the content and scope of the Convention in authoritative general comments. Through multiple references to tobacco control in these comments, the committee has clearly identified tobacco control as falling within the remit of the CRC. Governments, therefore, have a legal obligation to protect children against the harmful effects of tobacco.4

On the basis of children’s right to health specifically, governments should provide appropriate information to protect children against the harmful effects of tobacco use.5 6 While access to health related information is part of the right to health as such, the specific obligations on part of states should be explored in the context of the nature and scope of the right to information for children (Article 17 CRC).7 Governments must also protect children from tobacco and take appropriate measures to reduce its use among children.5 Furthermore, they are urged to regulate the tobacco industry by limiting the advertisement, marketing and sale of tobacco to children.4 5 Research demonstrates that adolescents are more susceptible to tobacco marketing than adults.8 The government responsibility to protect children against tobacco marketing should therefore also be explored in light of the protection against exploitation as included in Article 36 CRC.

The CRC committee further stipulates that the best interest of the child shall be taken into account when a ‘decision will have a major impact on a child or children’.6 This principle has received little systematic attention in a health law context. However, given the clear evidence indicating specific health benefits of tobacco control policies for children, the best-interest norm is very important in relation to tobacco control.9–11 This norm implies that governments have a legal obligation to ensure that children’s best interests are consistently implemented in every tobacco-related action taken by administrative and legislative bodies as well as public or private welfare institutions.6 Prevention of tobacco-related health infirmity is in children’s best interest as this contributes to creating these conditions relevant to the cumulative healthy development and well-being of the child. The latter should be further analysed in light of the right to life, survival and development (Article 6 CRC) and the right to an adequate standard of living (Article 27 CRC), to mention just two aspects.

At the policy level, an array of multisectoral approaches is available for governments to minimise tobacco use and exposure in children’s living environments. These approaches include introducing plain packaging and display bans for tobacco products that have been associated with reduced smoking-related behaviours among youth.12 13 Raising tobacco taxes, raising the minimum age for purchasing tobacco and prohibiting smoking in public spaces have also been associated with significant health benefits.14 15 Implementation of these domestic responses, in the context of a ‘tobacco endgame’ strategy, dovetails with the human rights obligation of working progressively, within a set timeline, toward full realisation of the CRC.16 17 An important remaining research question is whether the full realisation of the CRC requires adoption of such endgame strategies as adopted in various forms around the world.

The international human rights framework includes a range of accountability mechanisms complementary to the FCTC to challenge governments and other actors for their failure to live up to their obligations.18 19 An important accountability mechanism for children is the CRC individual complaint procedure.20 Its potential should be further explored in light of protecting children’s rights in a tobacco control context.

The same international human rights framework also establishes responsibilities for the tobacco industry. Based on the UN Guiding Principles on Business and Human Rights, businesses have a responsibility to respect human rights in order to avoid causing adverse impact on human rights protection.21 Arguably, the tobacco industry is violating its responsibility to respect children’s rights by designing and selling tobacco products with flavours, additives and attractive packaging to target children in particular. As we demonstrated, the protection against which is part of at least children’s right to health and best interest and their right to access information and to be protected against exploitation. The fact that Philip Morris International has joined the UN Global Compact, a voluntary initiative based on chief executive officer commitments to ensure, among others, human rights protection and sustainable development throughout its entire value chain, does not necessarily change this picture as long as it produces, sells and markets a product that is—according to the WHO—‘deadly in any form or disguise’.22

At the above-mentioned COP7, FCTC member states reinforced the importance of establishing the civil liability of the tobacco industry for the serious health consequences of persistent use of its products and its obstruction of effective tobacco control policies.2 At the domestic level, civil society organisations and individuals are increasingly challenging the role and responsibilities of governments and the tobacco industry in relation to tobacco in court to establish civil liability. However, these actors also try to enforce public health protection more generally and other forms of accountability via domestic court cases.

In the Netherlands, for example, the close ties between the Dutch government and the tobacco industry were challenged in a claim based on Article 5.3 FCTC.23 The article stipulates that governments shall protect their public health policies relevant to tobacco control from the commercial interests of the tobacco industry, such as using child-focused marketing techniques. The applicants stated that Article 5.3 FCTC is a specification of the human rights to life and health. Although the claim was unsuccessful, the Dutch government still took measures to limit its interaction with the tobacco industry. This is a clear example of how human rights can ultimately inspire and support claims to a tobacco-free environment.23 Such precedents of legal challenges can catalyse the move to a tobacco-free environment, which, in different ways, may form part of every child’s human rights.