Interlocking world of global health governance: Tobacco industry, bilateral investment treaties and health policy

Background: Over 2,800 bilateral investment treaties (BITs) exist worldwide. Unlike other treaties, BITs are unique in international trade/investment because they grant investors the right to sue States. Recently, these have become challenging with Philip Morris' lawsuits against Uruguay (February 2010) and Australia (November 2011) that their tobacco control policies violated BITs with Switzerland and Hong Kong. This study investigates how tobacco industry utilized BITs to facilitate globalization of tobacco and undermine health policy.

Methods: A standard qualitative research approach was used by triangulating information from tobacco documents' libraries, UN, World Bank, WHO and WTO. Additionally, relevant literature was searched from PubMed, JSTOR and Google Scholar. Hundreds of documents were retrieved and thematically analyzed using Nvivo v9.0 software.

Results: Since mid-1960s, investor-State disputes have been settled mostly through World Bank's ICSID and UN Commission on International Trade Law. The Philip Morris' lawsuits were novel because they were unprecedented use of these fora. In late 1940s, tobacco companies recognized BITs' importance in promoting tobacco and lobbied for them to seek relief from “doubled taxation”. Subsequently, BITs became a means for the industry to globalize tobacco, and challenge States' policy making authority. Particularly, after failing to derail the FCTC, BITs have become the main strategy to stifle progression of global tobacco control.

Conclusion: The study findings suggest the need for either a multilateral treaty or convention on international investment integrating health or at least exclusion of tobacco from BITs and/or BIT-associated tobacco industry privileges such as the right of BITs to sue States.