Abstract
Corporate businesses can enhance human rights protection. The formulation of investment treaties can also be supportive in implementing the ICESCR. However, the life-threatening nature of tobacco businesses will pose a significant impact upon the enjoyment of the right to health. From the perspective of policy coherence, granting market access to tobacco industry investment through bilateral investment treaties (BITs) presents a particular challenge for ICESCR compliance. The Taiwan government paid insufficient attention to its ICESCR obligations when it adopted an open permission policy for foreign tobacco industry investment in BITs. As argued in this chapter, the Taiwan government can achieve little to redress this problematic market access commitment. In the case of withdrawing market access commitments through treaty amendments, for instance, existing tobacco investors’ rights would still remain intact and continue to be protected. The Taiwan government has a duty to create a condition in which people can enjoy good health. Individuals’ right to health in the ICESCR can never be “fully” respected and be “adequately” protected in the context of tobacco business activities. Nor can the government live up to its ICESCR duties while it still encourages tobacco investments through BITs. To bridge the gaping hole between these two regimes, the ICESCR norms might accelerate the reform of Taiwan’s tobacco investment policy and its BIT formulation. However, the success of these reforms ultimately depends on the Taiwan government’s willingness to effectively implement the ICESCR for its people.
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Notes
- 1.
The ICESCR together with the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights constitutes the International Bill of Human Rights.
- 2.
See infra Section II of this chapter.
- 3.
For instance, the U.S.–Rwanda BIT sets out a specific provision on investment and labor in Article 13.2, which reads: “For purposes of this Article, ‘labor laws’ means each Party’s statutes or regulations, or provisions thereof, that are directly related to the following internationally recognized labor rights: (a) the right of association; (b) the right to organize and bargain collectively; (c) a prohibition on the use of any form of forced or compulsory labor; (d) labor protections for children and young people, including a minimum age for the employment of children and the prohibition and elimination of the worst forms of child labor; and (e) acceptable conditions of work with respect to minimum wages, hours of work, and occupational safety and health.” Treaty Between the Government of the United States of America and the Government of the Republic of Rwanda Concerning the Encouragement and Reciprocal Protection of Investment, US–Rwanda, art 13.2, 19 Feb 2008, http://investmentpolicyhub.unctad.org/Download/TreatyFile/2241.
- 4.
For instance, Article 16 (Corporate Social Responsibility) of the Canada–Benin FIPA reads: “Each Contracting Party should encourage enterprises operating within its territory or subject to its jurisdiction to voluntarily incorporate internationally recognized standards of corporate social responsibility in their practices and internal policies, such as statements of principle that have been endorsed or are supported by the Contracting Parties. These principles address issues such as labor, the environment, human rights, community relations and anti-corruption.” Agreement Between the Government of Canada and the Government of the Republic of Benin for the Promotion and Reciprocal Protection of Investments, Can–Benin, art 16, 8 Jan 2013, http://internationall.gc.ca/trade-commerce/trade-agreements-accords-commerciaux/agr-acc/benin/fipa-apie/index.aspx?lang=eng#a19.
- 5.
- 6.
Notably, tobacco is lethal in nature, killing up to one-half of its users. As estimated by the WHO, more than 7 million deaths result from tobacco-related illnesses each year, which include direct tobacco users and non-smokers who are exposed to second-hand smoke. See Tobacco. WHO. http://www.who.int/mediacentre/factsheets/fs339/en/. Accessed 24 Sept 2017.
- 7.
The International Review Committee of Independent Experts on the ICESCR was created subsequently to oversee the government’s compliance with the obligations it has undertaken.
- 8.
Article 2.1 states that “Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.” International Covenant on Economic, Social and Cultural Rights, art. 2.1, opened for signature 16 Dec 1966, http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx (entered into force 3 Jan 1976). Regarding the historical development and interpretation of the ICESCR, see generally Desierto (2015), pp. 70–150.
- 9.
UN Econ. & Soc. Council, Comm. on Econ., Soc. & Cultural Rights, Statement on the Obligations of States Parties Regarding the Corporate Sector and Economic, Social and Cultural Rights, UN Doc. E/C.12/2011/1 (12 July 2011).
- 10.
Id.
- 11.
See Human Rights Council Res. 17/4, UN Doc, A/HRC/RES/17/4 (6 June 2011).
- 12.
Id.
- 13.
Id.
- 14.
Id.
- 15.
See Olivier De Schutter (Special Rapporteur on the Right to Food), Report on the right to food: Addendum on guiding principles on human rights impact assessments of trade and investment agreements, UN Doc. A/HRC/19/59/Add.5 (19 Dec 2011).
- 16.
Id.
- 17.
UN Econ. & Soc. Council, Comm. on Econ., Soc. & Cultural Rights, General Comment on State Obligations under the International Covenant on Economic, Social and Cultural Rights in the Context of Business Activities: draft prepared by Olivier De Schutter and Zdzislaw Kedzia, Rapporteurs, UN Doc. E/c.12/60/R.1 (17 Oct 2016). General Comments serve as an important legal instrument reflecting the reading of treaty rights and obligations by the supervisory human rights bodies in the various conventions. Although the General Comments do not constitute an authentic interpretation of the relevant treaties, they are believed to represent considerable authority for States Parties to consider in good faith.
- 18.
Id.
- 19.
Id.
- 20.
UN Econ. & Soc. Council, Comm. on Econ., Soc. & Cultural Rights, Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, UN Doc. E/C.12/2000/4 (11 Aug 2000).
- 21.
Id., at paras. 15, 44(c).
- 22.
Id., at para. 50.
- 23.
Id.
- 24.
Id., at para. 51.
- 25.
The U.S. Model BIT, for instance, refers to certain activities or matters in its Annex, to which the obligations to provide national treatment and most-favored-nation do not apply.
- 26.
In Annex II of the Taiwan–Japan BIT, Japan provides that “[i]n the event where the supply of telegraph services, postal services and betting and gambling services, manufacture of tobacco products, which are restricted to designated enterprises or governmental entities, are liberalized to those other than the designated enterprises or governmental entities, or in the event where such designated enterprises or governmental entities no longer operate on a noncommercial basis, any measure relating to those activities may be adopted or maintained” (emphasis added). Arrangement Between the Association of East Asian Relations and the Interchange Association for the Mutual Cooperation on the Liberalization, Promotion and Protection of Investment, Taiwan–Japan, annex II of the Interchange Association, 22 Sept 2011, http://www.moea.gov.tw/CWS/tji/content/wHandMenuFile.ashx?menu_id=6694.
- 27.
Regarding discussion of the JTI case in Taiwan, see Complaint filed over JTI’s planned plant in Taiwan. Tobacco Reporter. https://www.tobaccoreporter.com/…/complaint-filed-over-jtis-planned-p. Accessed 24 Sept 2017; Plans for JTI plant in Taiwan meeting opposition. Tobacco Reporter. https://www.tobaccoreporter.com/2015/07/plans-for-jti-plant-in-taiwan-meeting-opposition/. Accessed 24 Sept 2017.
- 28.
JTI had been considered a high-tech company located within a technological industrial park for not polluting and for the involvement of a technical tobacco production process, thereby it could benefit from the use of the land with lower costs and tax preferences specifically granted to the high-tech industry (Liao et al. (2015)). Ironically, the tobacco company had been considered to be an eligible technological company because it was non-polluting and it introduced a new technology in the tobacco production process. Id.
- 29.
See Gerber (2016).
- 30.
Article 7.1 of the “Statute for Investments by Foreign Nationals” provides that “the investor is prohibited from investing in the following industries: Those which may negatively affect national security, public order, good customs and practices, or national health.” Wai Guo Ren Tou Zi Tiao Li (Statute for Investments By Foreign Nationals), art. 7.1 (1997) (Taiwan). The Ministry of Economic Affairs has classified the tobacco manufacturing sector as an industry in which foreign investors are restricted from investing, not prohibited from investing.
- 31.
In the foreword to the FCTC, the WHO recognizes that “foreign direct investment” is one of the various complex factors with cross-border effects, which facilitate the spread of the tobacco epidemic. Tobacco companies’ investment activities would aggravate the globalized tobacco epidemic. See Lin (2013).
- 32.
- 33.
Tobacco use remains the leading preventable cause of premature death in the United States. The WHO states that tobacco use is “the single most preventable cause of death in the world today.” See U.S. Department of Health and Human Services (2010), at p. 647.
- 34.
FCTC Article 5.3 guidelines provide that “the tobacco industry should not be granted incentives, privileges or benefits to establish or run their businesses.” WHO Framework Convention on Tobacco Control, art. 5.3, opened for signature 21 May 2003, 2302 U.N.T.S. 166, http://apps.who.int/iris/bitstream/10665/42811/1/9241591013.pdf?ua=1.
- 35.
Arrangement Between the Association of East Asian Relations and the Interchange Association for the Mutual Cooperation on the Liberalization, Promotion and Protection of Investment, Taiwan–Japan, art. 12.3, 22 Sept 2011, http://www.moea.gov.tw/CWS/tji/content/wHandMenuFile.ashx?menu_id=6692 [hereinafter Taiwan–Japan BIT].
- 36.
Id., art. 5.1.
- 37.
Canada Model BIT, annex B.13(1)(c) (2004), http://investmentpolicyhub.unctad.org/Download/TreatyFile/2820.
- 38.
El Paso Energy International Co. v. The Argentina Republic, ICSID Case No. ARB/03/15, Award, para. 241 (31 Oct 2011).
- 39.
In 2007, the Britain-based Imperial Tobacco Group, the world’s fourth-largest tobacco company, began construction of a tobacco manufacturing and logistics center in Miaoli county, in the central part of Taiwan. The plant was built on 1.9 ha of land at the Kuan-Yuan Science Park in Zhunan and construction was completed in 2008, starting mass production the same year. Reportedly, the total cost of this tobacco investment amounted to US$85 million, which was expected to create around 300 job opportunities. According to a more recent report, the Imperial Tobacco investment project did not create as many jobs as expected. Instead, Imperial Tobacco engaged in unlawful promotional activities, such as delivering free samples and lotteries at night markets and shrimp finishing pools in Taiwan.
- 40.
Taiwan–Japan BIT (2011), supra note 35, art. 18.1(a).
- 41.
VCLT Article 31(3)(c) provides that “[t]here shall be taken into account, together with the context: […] any relevant rules of international law applicable in the relations between the parties.” Vienna Convention on the Law of Treaties, art. 31(3)(c), opened for signature 23 May 1969, 1155 U.N.T.S. 331.
- 42.
Taiwan–Japan BIT (2011), supra note 35, art. 26.5.
- 43.
Article 11 of the Czech and Malaysian BIT states: “This Agreement may be amended by mutual consent of both Contracting Parties at any time after it is in force. Any alternation or modification of this Agreement shall be done without prejudice to the rights and obligations arising from this Agreement prior to the date of such alternation or modification until such rights and obligations are fully implemented.” Agreement Between the Czech Republic and Malaysia for the Promotion and Protection of Investments, Czech–Malay, art. 11, 9 Sept 1996, http://investmentpolicyhub.unctad.org/Download/TreatyFile/957. The Ghana and Malaysia BIT states: “Any alteration or modification of this agreement shall be done without prejudice to the rights and obligations arising from this Agreement prior to the date of such alteration or modification until such rights and obligations are fully implemented.” Agreement Between the Government of the Republic of Ghana and the Government of Malaysia for the Promotion and Protection of Investments, Ghana–Malay, art. 11, 8 Nov 1996, http://investmentpolicyhub.unctad.org/Download/TreatyFile/1456.
- 44.
See Sempra Energy Int’l v. Argentine Republic, ICSID Case No. ARB/02/16, Award, para. 386 (28 Sept 2007), https://www.italaw.com/sites/default/files/case-documents/ita0770.pdf.
- 45.
Notably, the acquired rights of investors in the case of treaty termination can only exist for another 10 or 15 years. But in the case of a treaty amendment, the period of protection of acquired rights seems unlimited until it has been fully implemented.
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Lin, TY. (2019). Tobacco Investment and Human Rights: A Challenge for Taiwan’s ICESCR Implementation in Its Foreign Investment Policy. In: Cohen, J., Alford, W., Lo, Cf. (eds) Taiwan and International Human Rights. Economics, Law, and Institutions in Asia Pacific. Springer, Singapore. https://doi.org/10.1007/978-981-13-0350-0_30
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