A Human Rights Approach to
Controlling Tobacco in Taiwan
Professor Richard Kagan
Hamline University, St. Paul, MN USA
rkagan@hamline.edu

ABSTRACT

Objective: To explore the justifications and arguments to apply human rights criterion to tobacco control in Taiwan.

Methods: Review human rights movement in Taiwan, the international human rights law and the impact of human rights on public health policy. They were then applied to tobacco control programs in Taiwan.

Results: By viewing tobacco consumption as a violation of human rights violation, there would be advantages in administrative areas, legal areas and public health areas. There are also advantages to nonsmokers.

Conclusion: The use of a human rights argument would add a powerful dimension to Tobacco Control efforts. Tobacco Control implementation which relies on human rights assumptions would conclude that the use of tobacco should not just be controlled, but should cease. One would then re-define the scope and nature of tobacco control and public health. Raising this debate would help clarify the roles of human rights, international law, and health.

The purpose of this paper is to explore the justifications and arguments to apply human rights criteria to tobacco control in Taiwan. While both tobacco control and human rights have been argued separately, the linking of these two issues is new and requires a presentation of the full nature of the proposed relationship. The conceptual, legal, and administrative advantages of employing this human rights approach will be considerable for policy makers, public health officials, tobacco control workers, and lawyers. The ultimate goals are 1) to make Taiwan one of the leading governments to adopt a human rights concept into its tobacco control efforts, and 2) to establish strategies and priorities for realizing the full potential of such an approach in tobacco control.

Human Rights-Health and Public Health.

The connection between international human rights law and health has existed since the 1920's when the League of Nations established health clinics and facilities throughout many parts of the world. This reform was in response to the perceived need to improve the health conditions of people, especially children, throughout the world. The United Nations has legislated the International Bill of Rights-they include the Universal Declaration of Human Rights, and the two International Conventions on Civil, Political, Economic, Social and Cultural Rights. These three documents form the International Bill of Rights. Article One of the Universal Declaration establishes the tone and norm for these rights: "All human beings are born free and equal in dignity and rights." This statement has justified and legitimized the slogan that the United Nations has established a culture and legislation that promotes the dignity of all human beings. Beyond this, the International Bill of Rights includes the right to life, the right to health, and the right to a healthy environment. In 2000, the United Nations Committee on the Rights of the Child reported that children needed protection from "the alarming rates of tobacco use among persons less than 18 years."

For the last five years, the World Health Organization (WHO) has started a "Tobacco Free Initiative" campaign. In addition the WHO strived to work out "The Framework Convention for Tobacco Control." This represents a marked change in the approach to tobacco because it supplements traditional medical and public health concerns with legal and international trade concerns. It urges governments and NGO's to seek new ways to combat tobacco. Although not in the Framework's language itself, reports on the preliminary meetings, especially in Annam, Jordan, have suggested that international human rights law can be used to advance the campaigns to control tobacco.
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The World Health Organization defines "health" as a "state of physical, mental, and social well being." The practice of public health "ensures the conditions in which people can be healthy." Although this definition does not yet include spiritual health, the World Health Organization promotes a holistic view of health that includes the individual and the community at large. Dr. Jonathan Mann (1947-1998), founder of the Doctors of the World, joined with epidemiologists and lawyers to pioneer in advocating the links between human rights and health. He advocated strongly for the acceptance of the idea that "health [is] an outcome of the operation of law." In other words, law shapes the way we promote or undermine health. Medical science must take account of the larger issues of human rights, and their relationship to international legal systems and obligations. In this way, international human rights law complements and even initiates scientific inquiry.

A lawyer's view is offered by Jonathan Wike who has argued forcefully and uniquely that tobacco plaintiffs and critics "must look . . . to alternative legal regimes and must be creative in their legal strategies" to control and limit tobacco. Once one charges the tobacco companies with the "violation of accepted norms of human rights", then the struggle shifts from national courts to an international forum. At that point, international law becomes "binding on all states."

Is Tobacco a Violation of Human Rights?

If the rights to health (as well as the rights to life and a healthy environment) are indeed covered by international human rights law, then why do we exempt tobacco? Is the protection of human rights limited to only certain types of health problems? Who decides which areas of health legitimately rank in international human rights law?
There are generally three arguments against concluding that tobacco violates human rights:
1) Critics argue that tobacco is an insignificant problem when compared to the deprivation of food, housing, clothing, and basic health care. They justifiably point out that neither the United States Constitution nor Supreme Court acknowledge the right of health or universal health care. Americans and free traders believe that legal products should be marketed without constraint. Thus, the buyer is free to consume processed foods with unhealthy portions of fat and salt. And, it follows that manufacturers have the right to produce and market these "unhealthy" products. How can one expect Americans or consumers worldwide to accuse the tobacco industry of violation of human rights?
2) Public Health professionals fear that the advocacy of human rights would "blur the focus" of the antismoking campaign and would "create some hostility against [the proponents of human rights] as 'extremists,' thus hurting the real cause." According to these medical workers, the application of human rights would not enhance their activities.
3) In the realm of theory, there are those, like Jeremy Bentham, who advocate that human rights are a myth. David M. Smolin, a law professor at Cumberland Law School has argued that the human rights movement threatens "humanity" itself by trying to impose a "new form of totalism" which seeks "control of the total life... of human beings." He argues that human rights law must be "winnowed" down to more relativistic and individualistic norms. For him, smoking is an individual right.

Before beginning the discussion of tobacco and human rights, we need to rebut the above assumptions. We must warn the reader that this debate has been on going for centuries. Clarity and persuasiveness are the standards to use in judging the validity of the argument on either side.
1) Critics fail to realize that the discussion, governance, and extent of human rights are constantly changing. The number of people it protects does not determine the legitimacy of a "right". The human rights culture of "dignity" is constantly developing. The health principles of the Universal Declaration of Human Rights have been absorbed into the Constitutions of Japan, Bangladesh, and the Republic of China. Bangladesh and India have cited their Constitutional Rights to curb smoking. Taiwan can do the same or even more. Currently, the export of fatty foods to Micronesian consumers and the campaigns to provide questionable nutritious foods to the poor has come under attack for human rights violations. Human Rights International Law is often utilized when local laws are not protective enough. Tobacco related illnesses have reached an epidemic proportion of nearly five million deaths per year. The protection of people from death or self-destruction from addictive agents falls under the right to health.
2) Extremism is often in the eye of the beholder. Take the 1994 Toonen vs. Australia case, where the Human Rights Committee "unanimously concluded that a criminal ban on the same-sex consensual sodomy by the Australian state of Tasmania violated the International Covenant on Civil and Political Rights." Surely, legal rights should not be deferred to public opinion, when that opinion is based on illegalities. It is up to the public health establishment to argue in a manner that breaks down, rather than succumbs to, public opinion. People who fear reforms in public health domains and policies need to be reminded of their own history. For instance, public health doctors have not always been popular or accepted. In the 1960's public health doctors were not welcomed in the American Medical Association. In order to fight disease, public health doctors have had to change the cultural perceptions of their patients. The use of the term "cancer " was too frightening to tell a patient. Cancer Hospitals in America, England and France were called "Tumor" Clinics. The writings by Ian Neary relate how the idea for and initiation of "informed consent" grew out of human rights law. The moral of this history lesson is that change is always occurring, and one should focus on a policy rather than the fear of how the truth will be received.
Finally, the reason to re-arm tobacco control with human rights law is that the current controls are not adequate. In Minnesota, there has been a rise in the use of cigarettes, despite a major public health campaign. One of the great problems in using the health tax on tobacco for public health costs is that the tax is often misused. In the United States the tax has gone into the general public fund, not the anti-tobacco fund. Currently, there is a financial policy that allows a bank to buy up the money that tobacco companies are to pay to states, and then pay off the state in one lump sum rather than over time. The bank, in this process of re-securitization, pays itself a generous fee for this operation. The problem is that the current system is too fraught with financial, legal, and governmental problems to be totally effective. A human rights approach can supplement and even simplify the attempt to provide a healthier environment-both individually and socially.
3) The classic refutation of the argument that one has individual rights that trump social rights is John Mill's work "On Liberty." The English philosopher concentrates on the character of the individual and his obligation to society. He assumes that "Human beings owe to each other help to distinguish the better from the worse, and encouragement to choose the former and avoid the latter. They should be forever stimulating each other to increase exercise of their higher faculties, and increased direction of their feelings and aims towards wise instead of foolish, elevating instead of degrading." Mill lists various injurious behavior towards others which should be censured: " [T]he desire to engross more than one's share of advantages" . The misconduct of character not only affects the individual perpetrator but also the health of the society. From this point of view, Mill would surely condemn tobacco as an enemy of liberty. The widespread use of tobacco creates privilege and opportunity for the rich because they can afford health care costs while the poor suffer from poor health and from loss of income due to their smoking habit. Mill's riposte to Smolin is that a culture based on the "dignity" endorsed and explained in the International Bill of Rights, and adjudicated through the due process of international law would not be the harbinger of totalitarianism.

How Human Rights affects Public Health Policy.

Taiwan's Public Health policy recognizes that cigarettes are legal commodity and that smoking is a personal choice. Public Health workers alert the public of the dangers of tobacco consumption through educational campaigns, public service announcements, and public anti-tobacco efforts. Their major goal is to prevent young children from smoking and to treat those addicted to become free from addition. A Human Rights approach would consider "human rights in relation to all public health policies." It would investigate the laws, the corporations, the social norms, and the cultural mores to reveal how to promote positive social change. By making Human Rights Law the standard, protection of a healthy environment would take precedence over the alleged rights of the individual. Consequently, public health workers would consider smoking a chronic addictive disease and the smokers a disadvantaged group so that smoking cessation programs would be subsidized-- not just warnings to children and education of adults about the dangers of addiction.

In sum, Taiwan's public health approach urges prevention and works with the scientific community to focus on the medical and epidemiological causes and consequences of smoking; while the human rights approach to tobacco sensitizes healers to the application of universal rights to other health issues in a socially holistic manner that includes law, rights, and social change. Protection of rights to life, health, and a healthy environment would be the driving factor for the control of tobacco.

Why should society view tobacco use as a violation of human rights?

Here are a few facts:
1) Tobacco companies manufacture products which when used in the recommended manner prove fatal for almost half the addicted smokers. The manufacturers have manipulated the addictive factor in tobacco to ensure that a smoker is "hooked." This factor is not involved in other commodities. Addiction to alcohol, fatty foods, and gambling is not built into the physical and chemical composition of these products. Tobacco manufacturers claim that the use of a "warning" about the hazards of smoking on their cigarette products should absolve them from individual tort litigation, and should allow smokers to choose whether to smoke or not. The problem with this defense is that it does not take into consideration the effect on non-smokers, and on the environment.
2) Smokers have exhausted medical resources at the expense of society, wasting limited resources of Taiwan's National Health Insurance Program, which receives contributions from smokers and nonsmokers alike. In this case, smokers have intruded on non-smokers' financial resources. The use of tobacco weakens and limits health coverage for other illnesses.
3) It is hard to convince a smoker that he or she is violating another's right. A person physically as well as psychologically addicted to any behavior finds it difficult to reform. Try to convince a child abuser that his or her actions are illegitimate or wrong. One great problem with spousal abuse is that the spouse often refuses to leave the abuser. Public health professionals need a complex and varied assortment of arguments, skills, and empowerments to create a health society. Not always is the "will" or "compliance" of the patient acceptable to define the problem. Dealing with the social effect of a health issue sometimes takes priority over convincing the person to recognize the etiology of one's condition.
Whether or not one feels that cigarettes are a threat to human rights, there are numerous advantages in using human rights to implement tobacco reform. The current efforts of public health workers would be greatly enhanced with a human rights policy.
Administrative Advantages: the government does not need to go through excessive legal expense and time if it uses human rights law to justify the legislation of a tobacco free environment. In Taiwan, tort law, or compensation for damages is not as well developed as in the United States. Thus it is harder to win a case for relief or other forms of compensation for a breach of faith or intentional harm. Furthermore, any compensation would be for an individual and would not help the society at large. Litigation for criminal behavior of tobacco companies is very expensive. In Taiwan, there are no foreign companies that manufacture cigarettes within Taiwan's territory. Thus, litigation is limited and improbable.

The primary benefit of using International Human Rights Law is that it depends on effect more than on intent. One does not need to prove that the tobacco companies are being deceitful or causing pain and damage. The courts of Taiwan do not have to accuse anyone of intentionally violating a human rights law. The effect of smoking is the standard for reform and change. All the government has to do is show that a human rights principle or norm has been violated: whether directly or indirectly is not an issue.

Legal Advantages: to enforce human rights, the anti-tobacco advocates are not required to provide as much scientific proof to make their cause as in tort law or litigation. The argument to control tobacco is not based on how tobacco has harmed people in the past, but how to create a healthier, non-polluted society in the future. The government could make its own laws, policies and injunction based on the effects of marketing a harmful product. For example, in the issue of smuggling, the prosecution would charge that the smuggling of tobacco is in the felonious category of selling a hazardous item without a license, and of endangering the lives of the users. The smugglers would be accused of a felony, and the trial might be in an international rather than a domestic court. An international court would be less likely than a domestic court to be corrupt, or to protect the smugglers. The Government could initiate legal cases against tobacco companies for criminal conspiracy, and crimes against international human rights laws. Currently, the prosecution of smuggling is only a misdemeanor with a punishment of a small fine for avoiding the tobacco tax. Traditional legal actions against smuggling are quite ineffective.
Local governments could also legitimate their policies by appealing to international law. For example, a city can declare itself smoke free on the basis that the citizenry has a right to a healthy environment. This right would take priority over the rights of free trade and commerce. Current legislation has either been successful or debated in Bangladesh, the United States, Ireland, and the European Union. Taiwan could witness the self-proclamation of smoke free cities such as Kaohsiung, Taichung, I Lan, and, of course, Taipei.

Public Health Advantages: with a human rights approach public health workers can align with NGOs, private foundations, international organizations, humanitarian societies, and the whole field of human rights practitioners in their tobacco control programs. International organizations can seek for liability action under international obligations such as the Charter of the United Nations, the Universal Declaration of Human Rights, the Constitution of WHO, the United Nations Convention on the rights of the Child, and the Framework convention on Tobacco Control. Taiwan could become the center of Asian NGO activity in the campaigning for more thorough tobacco control policies.

Advantages to Nonsmokers: A human rights approach avoids the counter-argument that smoking is a personal or individual right. A person's right to smoke must be balanced against the needs of the society and the health of the individual. The apotheosis or the exaltation of the word "dignity" in the human rights culture is not a legal term. Rather the word "dignity" means that a person is "valued as irreplaceable." One cannot just argue that our "dignity" is maintained by good health care, or by access to health facilities. Our "dignity," or our "irreplaceable" existence is preserved by creating conditions in which health care is the regrettable but necessary outcome of our human condition to fade and die. We are to be protected as much as possible from being herded into health facilities. We do not have the right to savage ourselves with habits and actions that are destructive to those around us and to ourselves. Clearly, the rights to health, a clean environment, and life itself take priority over the so-called right to smoke.

Conclusion.

Tobacco Control that relies on human rights assumptions would conclude that the use of tobacco should not just be controlled, but should cease. A human rights approach suggests that public health policy be placed within a National Human Rights Health Commission that would be in charge of creating a Smoke Free Taiwan. The Commission would organize insurers, public health doctors, community leaders, communication experts, international associations and institutions in a joint effort to connect International Human

Rights Law with Tobacco Control.

The Commission would not dictate a specific policy to fit all approaches. It would seek criteria to assess how human rights could be applied to public health concerns. Intellectually, it could hold a series of international conferences on the topic of public health, ethics, and human rights. To accomplish this, one must re-define the scope and nature of public health. Raising this debate would help clarify the roles of human rights, international law, and health. 10 If Taiwan were to take up this mantle, it would encourage other governments and their citizens to discuss creative and powerful ways to address the health of our world. Taiwan would become a major innovator and reformer not only in creating new approaches to tobacco control, but also in linking human right to public health.

1. Carey V. Johnson. "Human Rights and Public Health: A New Dynamic for Social Change." Internet: www.mountainairpridemedia.org or e-mail: Careymsm@sover.net

2. Book Review by Mary Guinan, M.D. Ph.D. Journal of Law, Medicine, and Ethics. Winter 2002. V30, i. 4. p. 498.

3. Wike, Jonathan, "The Marlboro Man in Asia: US Tobacco and Human Rights," Vanderbilt Journal of Transnational Law, 29: 329-361 (1996). Fn. 172. p.358.

4. These critiques come from an anonymous reviewer of an earlier paper.

5. David M. Smolin, "Will International Human Rights Be Used as a Tool of Cultural Genocide? The Interaction of Human Rights Norms, Religion, Culture, and Gender," Journal of Law and Religion. XII, 1, 1995-96. Pp. 143-172. Quotations are from pp. 171, 144, 143.

6. See Greg Critser's Fat Land How Americans became the Fattest People in the World. Houghton Mifflin. 2003. This book provides an excellent argument for why human rights criteria should be applied to fast foods that harm the poor with high rates of diabetes, and poor health. In Micronesia, the importation of fatty foods has greatly increased the mortality rates and the ill health of the inhabitants who cannot metabolize the saturated fats successfully. Imports of these legal foods, like the legally cutting of rain forests, results in consequences that raises questions about cultural genocide. (See the oft-published sociological definitions of genocide by Israel Charney, Executive Director of the Institute of the Holocaust and Genocide, Jerusalem, Israel.)

7. Laurence R. Helfer, "Will the United Nations Human Rights Committee Require Recognition of Same-Sex Marriages?" Legal Recognition of Same-Sex Partnerships: A Study of National, European, and Internal Law. Eds. Robert Wintemute and Mads Andenaes. Oxford and Portland: Hart Publishing, 2001. p. 734.

8. John Stuart Mill, On Liberty. Originally published 1859. Chapter 4, lines 54 ff.

9. Carolynne Shinn. "The Right to the Highest Attainable Standard of Health: Public Health's Opportunity to Reframe a Human Rights Debate in the United States," Health and Human Rights. Vol. 4, #1. Pp. 115-133. Also, see citation of Elizabeth Maclaren, footnotes 42-43.

10. For an argument on how Americans are over-weight and how the most affected are the poor who consequently develop high rates of debilitating diabetes, see Greg Critser, Fat Land: How Americans Became the Fattest People in the World. Houghton Mifflin. 2003. One could make an argument that the known effects o

11. A discussion could build on two articles: Sofia Gruskin & Bebe Loff. "Do human rights have a role in public health work?" The Lancet. Dec. 7, 2002. v. 30, i9348, p1880; L. Gostin. "Public Health, ethics, and human rights: a tribute to the late Jonathan Mann. Journal of Law, Medicine & Ethics, 2001., pp.1-15.