At the end of 2018, the Pacific Island nation of Vanuatu put “the fossil fuel industry, and the states that sponsor it, on notice that the climate loss and damages ravaging Vanuatu will not go unchallenged,” as stated by Minister of Foreign Affairs, Ralph Regenvanu.
If the tiny island proceeds with its lawsuit, it will be the first nation to sue the world’s most powerful industry — the fossil fuel industry — for its role in climate change. And it will be part of the groundswell of global actions we see today aimed at holding to account the industries most responsible for the climate disaster we face. And as such, Vanuatu’s actions are rooted in an important precedent in international law. The world’s first corporate accountability treaty, adopted over a decade ago by the World Health Organization, was aimed at the tobacco industry. Today, concepts embedded in this treaty have begun to capture people’s imagination, shining a light on what’s possible in holding harmful industries like Big Polluters accountable.
There are indeed striking similarities between Big Polluters and Big Tobacco. Big Polluters have taken many pages straight from the tobacco industry’s playbook — including muddying the scientific waters, influencing politicians, and creating confusion and distraction.
But for more than a decade, countries around the world have been addressing Big Tobacco’s tactics and curbing its power. They have been able to do so largely thanks to the World Health Organization’s global tobacco treaty (formally known as the Framework Convention on Tobacco Control). And in particular one article — Article 5.3, which serves as the backbone of the treaty — has played a major role in reining in the tobacco industry.
Industry has no role in policymaking
When countries around the world came together in the early 2000s to adopt the global tobacco treaty, Corporate Accountability, in partnership with Global South organizers and courageous government champions, waged a heated campaign. We needed to ensure that the treaty would prevent the tobacco industry from doing what it had been doing for decades: influencing decision-makers and undermining lifesaving policy.
This campaign resulted in Article 5.3: one sentence that obliges governments to protect public health policy from the vested interests of the tobacco industry. That one sentence enshrines into international law the concept that the industry has no role to play in policymaking.
But the question remained: how do governments do this? And that’s where the Article 5.3 guidelines came in. In 2008 — just a little over a decade ago — governments created a roadmap for how they can actually implement the concept of protecting policy from the industry. (Corporate Accountability and our Global South allies, particularly the Network for Accountability of Tobacco Transnationals (NATT), provided pivotal support in the creation and adoption of these guidelines.)
The guidelines are based on the principle that there is a fundamental and irreconcilable conflict between the tobacco industry’s interests and public health policy interests. And therefore tobacco corporations should not be treated as “stakeholders” in public health policy. Nor should they partner with policymakers to achieve health outcomes. Nor use so called Corporate Social Responsibility (CSR) tactics as a way to get in good favor with governments. These and other recommendations have enabled countries to concretely protect their public health policy from tobacco industry influence.
The power of Article 5.3 and its guidelines
Since the global tobacco treaty was adopted, and even more so since the Article 5.3 guidelines came into play, this policy has changed the game for public health protections around the world.
For an entire decade, countries have been able to enact lifesaving public health measures because they’ve been able to keep the tobacco industry at arm’s length. Thailand, once a major target of the tobacco industry, has implemented robust Article 5.3 measures, which has enabled stronger implementation and enforcement of lifesaving public health measures like graphic health warnings on tobacco packaging. Countries such as Uruguay and Australia have enacted plain packaging measures, which have been proven to reduce tobacco addiction. Ad bans, smoke-free places, and many other lifesaving protections have been successfully enacted in countries around the world. Such progress would have been much more difficult, if not impossible, if Big Tobacco had free rein in influencing policy.
Further, with the tobacco industry shunned by policymakers, governments have been able to make stunning progress on another piece of international law: Article 19, which involves liability. In the past several years, legal and policy experts as well as advocates like Corporate Accountability have helped create an interactive toolkit, which provides individualized information on how countries can most effectively make Big Tobacco pay for the harms caused by its products, including healthcare costs. This would simply be unimaginable if the industry had sway in these meetings.
Keeping the fossil fuel industry at bay
For those interested in curbing the power of the fossil fuel industry, the work on Articles 5.3 and 19 of the global tobacco treaty holds great promise.
Recent reports commissioned by the U.N. and even the U.S. government make clear that we have little time to waste in addressing climate issues. These dire warnings have emboldened even more people around the world to take increasingly imaginative and resolute actions to hold Big Polluters accountable — and move governments to implement policy to address this crisis.
And as organizers, advocates, and activists explore effective strategies to challenge the fossil fuel industry, many are seeing the potential in having binding international law regarding conflicts of interest, like Article 5.3. It is becoming increasingly clear that being able to prevent polluting industries and their front groups from interfering in policymaking is essential in advancing the kind of decisive action we so urgently need.
For example, Vanuatu sought to garner support from other island nations at the 2018 U.N. climate treaty meetings. This is a space that, for over 25 years, has been captured by the fossil fuel industry. And, until we launched the climate campaign to kick Big Polluters out nearly four years ago, it was almost unimaginable that it could be any other way. But we’ve helped put the corporate capture of these talks front and center. And it was clear during the latest treaty meetings that the idea of holding the fossil fuel industry legally liable for climate change is gaining traction. So today, Vanuatu’s intention to hold the fossil fuel industry liable has a fighting chance of finding receptive partners and allies in this space.
We know that if we succeed in removing Big Polluters from the policymaking space, other governments will also likely be emboldened to advance liability policies to make Big Polluters pay. That would just be one of many other necessary, effective, and just solutions that could be advanced to actually keep global temperatures below the 1.5 Celsius marker and provide finance and resources to those countries that are currently dealing with the devastating effects of climate change.
A common sense concept
An absolute firewall between an industry driving a global problem, and the policymakers charged with solving that problem.
It’s a common sense concept, but one whose application has been limited to date. However, as we continue to witness the growing harm caused by transnational corporations pursing profit at all costs, it’s a concept the world desperately needs to advance, and quickly.
And indeed, people around the world are taking it up as a rallying cry — not just for climate policy, but in holding corporations accountable for human rights abuses, in addressing the alarming shrinking of biological diversity, and much more.
In Article 5.3 of the global tobacco treaty, we have a tool and precedent that can help turn this concept into a reality for these issues and more. We have an opportunity to make a sea change — and it just might enable us to survive.
