For years, tobacco interests have played an important role in developing international law. Recently, cooperation among nations concerned with the risks and health consequences of smoking tobacco has resulted in the adoption of international treaties, regional directives, and common administrative and regulatory practices. As a result, a wave of litigation before international courts and tribunals, including the European and Andean Courts of Justice, Investor-State Tribunals, and the World Trade Organization’s dispute settlement body, has led to novel legal questions.
This Article is the first to trace, survey, and recount the history of tobacco litigation before international courts and tribunals and to assess its contribution to international law. In particular, it pays new attention to recent efforts by tobacco interests to challenge compelled speech by exporting the far-reaching Free Speech Clause of the United States into international law, especially in the context of marketing controls, mandatory graphic warnings, and “plain packaging” labels.
This Article shows that, contrary to conventional wisdom, international courts and tribunals can play a central role in advancing and enhancing complex national, regional, and global regulations rather than eroding sovereign regulatory space. Complete deference to states’ policies, however, can also be risky as it may perpetuate the use of economic and political influence to distort the functioning of government. Hence, the history of international tobacco litigation reveals a more complex interrelationship between domestic institutions and international law than many scholars acknowledge.