I’ve been researching how elements of two international treaties—each adopted by the General Assembly of the United Nations in 1966—might enable a legal challenge to damaging prohibitions, which deny millions of people ways to improve their health.

Such an effort might draw upon the successful 1990s challenge to anti-gay laws in Australia, using the First Optional Protocol to the International Covenant on Civil and Political Rights.

A legal challenge might also invoke the First Optional Protocol to the International Covenant on Economic, Social, and Cultural Rights, particularly in light of the evolving landscape of nicotine consumption and harm reduction strategies.

This effort could center on the human rights to health and self-determination under these treaties. But before we get ahead of ourselves, let’s take a closer look at the specifics.

What Is an Optional Protocol?

An Optional Protocol provides individuals and groups with an avenue to enforce their rights under a treaty. It extends the jurisdiction of the treaty’s supervisory body, typically a human rights committee or commission, to receive and consider complaints from those who believe their rights have been violated by their own government.

This useful pathway can give people access to international justice mechanisms when domestic remedies are exhausted or unavailable. It serves as a supplement to national courts, providing an alternative forum for adjudicating human rights claims.

People have previously exercised their right to complain under an Optional Protocol with dramatic success.

By lodging complaints under an Optional Protocol, people can bring international attention to human rights violations and hold governments accountable for actions that might otherwise go unaddressed.

Of the two treaties we’re discussing, the International Covenant on Civil and Political Rights (ICCPR) came into force in 1976, with 174 parties, or countries that have ratified it; its Optional Protocol applies to 116 parties. Implementation of the ICCPR is the responsibility of the UN Human Rights Committee (UNHRC), which is also tasked with receiving applicable complaints from individuals.

The International Covenant on Economic, Social and Cultural Rights (ICESCR) also took effect in 1976, with 172 parties; its Optional Protocol of 2013 has 46 signatories (countries that have signed up to it in principle) and 29 parties. The Committee on Economic, Social and Cultural Rights oversees implementation and receives applicable communications from individuals.

People have previously exercised their right to complain under an Optional Protocol with dramatic success.

Historical Precedent

In the 1990s, Tasmania had some of the harshest anti-gay laws in Australia. These laws criminalized consensual sexual activity between adult men.

In 1992, Tasmanian citizens Nicholas Toonen and Rodney Croome lodged a communication with the UNHRC under the First Optional Protocol to the ICCPR. They argued that Tasmania’s laws violated their rights to privacy, equality and freedom from discrimination under Articles 2, 17 and 26 of the ICCPR Covenant.

The UNHRC first conducted an admissibility review of the communication to determine if it met the criteria outlined in the First Optional Protocol. After finding that it did, the UNHRC proceeded to consider the merits of the complaint, before issuing its views in 1994, which resulted in the landmark case Toonen v. Australia.

The UNHRC concluded that Tasmania’s laws violated Article 17 (right to privacy) of the ICCPR. Following that decision—which was not legally binding, but exerted substantial international pressure—Australia repealed its anti-gay laws in 1997.

The Toonen case had broader legal and social implications beyond Australia, and influenced global legal reforms around similar discriminatory laws. It underscored the role of international human rights mechanisms in promoting equality and non-discrimination worldwide. And it exemplified how individuals and advocacy groups can leverage those mechanisms to challenge harmful legislation and advance human rights at the domestic level.

How might these lessons apply to nicotine?

The Right to Health 

It isn’t hard to envisage a comparable path to challenging measures like vape bans today. There’s clear potential to leverage similar mechanisms against public health policies perceived as violating individuals’ rights to health and access to harm reduction.

Article 12 of the ICESCR Covenant states that its parties “recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”

Plaintiffs could very plausibly argue that restricting access to less harmful nicotine alternatives constitutes a breach of their human right to health.

With this in mind, the First Optional Protocol to the ICESCR could potentially enable the initiation of a human rights case, under Article 12 of the Covenant, against governments that prohibit vaping. In this scenario, plaintiffs could very plausibly argue that restricting access to less harmful nicotine alternatives constitutes a breach of their human right to health.

Scientific evidence establishes beyond credible doubt that vapes, heated tobacco products and oral nicotine products are vastly less harmful than the cigarettes these products can replace.

It would follow, under this argument, that access to safer nicotine products is essential for protecting public health and fulfilling the right to health. Individuals could argue that governments have a duty under Article 12 to promote and facilitate access to effective harm reduction.

While cases focused solely on Article 12 are uncommon, its principles and provisions are often integrated into broader human rights advocacy efforts related to health. Arguments typically emphasize the indivisibility and interdependence of human rights, highlighting how the right to health intersects with other rights such as non-discrimination, access to information, and participation in decision-making processes affecting health.

Article 2 of the ICESCR Covenant, meanwhile, prohibits discrimination in the enjoyment of rights, including the right to health. If governments allow smoking while banning vaping—as many do—individuals could argue that this constitutes unjustifiable discrimination against people who choose vaping as the safer alternative—especially if there is evidence of disparate impact on marginalized communities.

While governments are regarded as having a legitimate interest in regulating potentially harmful products, they must do so in a manner that respects people’s rights to health and non-discrimination. A vaping ban shown to be disproportionate or arbitrary compared to the regulation of smoking could therefore be vulnerable under ICESCR Covenant Articles 12 and 2.

But those aren’t the only relevant rights at stake.

The Right to Self-Determination

Both the ICCPR and the ICESCR provide for the human right to self-determination—which concerns “the fundamental right of people to shape their own lives.”

In a practical sense, self-determination means that we have the freedom to live well, and to determine, according to our own values and beliefs, what it means to live well. It means that we have a choice in how our lives are governed; that we participate in decisions that affect our lives; and that we have a degree of control over our lives and future.

Individuals might well argue, under either treaty, that restrictions on access to less harmful alternatives to cigarettes infringe upon rights to self-determination—particularly if they can demonstrate that such restrictions disproportionately limit their freedom to make autonomous choices regarding their health and well-being.

It might be asserted that the right to make autonomous choices about one’s health and lifestyle is inherent to the principles of self-determination and personal autonomy protected under these covenants.

Individuals could contend that restrictions disproportionately impact certain groups, and thereby violate ICCPR principles of equality and non-discrimination.

Although the ICCPR does not explicitly recognize a right to health, it encompasses broader principles on the protection of people’s physical and mental well-being. Individuals could argue that access to tobacco harm reduction products is essential for promoting their health and well-being.

Individuals could additionally contend that restrictions disproportionately impact certain groups—such as people seeking to quit smoking, people who rely on safer nicotine alternatives for harm reduction, and members of communities overrepresented in these categories—and thereby violate ICCPR principles of equality and non-discrimination. The success of such efforts would depend on the details of the case, and on the interpretation and application of ICCPR rights by the UNHRC.

Speaking more generally, international human rights law encompasses a broad range of other rights that could be relevant.

One example is the right to freedom of expression—which might apply if people who use vapes or other safer nicotine options consider their use a form of personal expression or lifestyle choice.

Bans could also raise concerns about privacy rights, if they involve intrusive surveillance or monitoring of individuals’ habits.

Restrictions on purchasing certain products may also engage individuals’ rights to privacy and autonomy. While governments are regarded as having a legitimate interest in regulating sales of certain products to protect public health, such measures should not unduly intrude upon individuals’ personal autonomy or decision-making processes. Restrictions should be proportionate and respect individuals’ rights to make informed choices about their health and well-being.

Such arguments could support legal challenges to contest vaping bans and promote alternative regulatory approaches that respect individuals’ rights and promote public health.

Now that we’ve established the key rights potentially in play, how could advocates proceed?

How to Move Forward

Bringing a case along these lines against governments that ban vapes or other safer nicotine products would involve several steps. But it would first require the government in question to be a party to either the ICCPR or the ICESCR, and a party to the relevant First Optional Protocol.

Relatively few governments (29) are parties to the First Optional Protocol to the ICESCR Covenant, so the Article 12 route is limited. However, most governments (116) are party to the First Optional Protocol to the ICCPR, so complaints based on the human right to self-determination could be more widely applicable.

For either pathway, the first step involves gathering evidence and documentation to support the case. This includes compiling information on the restrictions, on the impact on individuals’ rights, and on any relevant domestic legal remedies that have been pursued or exhausted. This UN guide is helpful in determining what might constitute and meet the exhaustion requirements.

Individuals affected by the restrictions—such as vapers, vape shop owners, public health advocates or organizations representing their interests—would need to be identified as petitioners in the case.

The petitioners would then formally submit a complaint, or communication, to either the UNHRC (under the ICCPR) or the Committee on Economic, Social and Cultural Rights (under the ICESCR), outlining the alleged violation.

The government in question would be expected to provide a response, and to take appropriate measures to remedy the human rights violation identified.

Upon receiving the communication, the relevant committee would conduct an admissibility review, and then—if the communication is deemed admissible—consider the merits of the case before issuing its views on the matter.

Those views would not, in themselves, force a government to change course. But coming from the United Nations, they would carry substantial moral and political weight for any government signed up to the relevant treaty. The government in question would be expected to provide a response, and to take appropriate measures to remedy the human rights violation identified.

Invoking international human rights mechanisms to fight for access to tobacco harm reduction would certainly face obstacles and counterarguments. But depending on the arguments used, they might be informed and supported by a variety of other international bodies, principles and legal resources.

It might be necessary, in all cases, to draw on the Vienna Declaration on the Law of Treaties 1969, in which Articles 31 and 32 concern the interpretation of treaties.

It should be noted that the 1948 Constitution of the World Health Organization recognizes “enjoyment of the highest attainable standard of health” as “one of the fundamental rights of every human being.” While it does not explicitly define this right or elaborate on its scope, this foundational principle is meant to guide the WHO in promoting global health and addressing health inequalities. (When it comes to tobacco harm reduction, of course, the WHO has fallen disastrously short.)

The Framework Convention on Tobacco Control meanwhile came into force in 2005. It explicitly recognises the right to health as a guiding principle in its preamble and provisions, recalling both Article 12 of the ICESCR and the WHO Constitution. The FCTC objectives align with the broader human rights framework that recognizes health as a fundamental human right. Most significantly, it explicitly defines “tobacco control” programs to include harm reduction strategies.

In May 2024, the UN special rapporteur on the right to health, an independent expert appointed by the UNHRC, issued a call for inputs on “harm reduction for sustainable peace and development” as part of a thematic report to be presented to the General Assembly in October 2024. The aim is to gather information on harm reduction practices, policies, and their impact on public health and human rights, particularly in the context of drug use and related laws.

Successfully leveraging such mechanisms would be guaranteed to lead to international scrutiny, and the kind of pressure—and likely, embarrassment—that makes policy change probable.

The special rapporteur’s responsibilities are significant in terms of efforts to protect the right to use less harmful nicotine alternatives. The special rapporteur assesses global implementation of the right to health, identifying challenges, best practices, and gaps, and submits annual reports to the UN Human Rights Council and the General Assembly. The rapporteur also investigates allegations of violations of the right to health, including discrimination.

Successfully leveraging human rights mechanisms through the ICCPR or ICESCR in support of tobacco harm reduction would be guaranteed to lead to international scrutiny, and the kind of pressure—and likely, embarrassment—that makes policy change probable.

Anyone pursuing this will need a strategic, well-coordinated approach, involving thorough understanding of the legal frameworks, collaboration with local and international experts, meticulous documentation, and persistent advocacy for implementation. 

But it could be a means for advocates, led by consumers, to create a powerful coalition—not only fighting against bans of safer nicotine products, but also promoting broader recognition of harm reduction as a fundamental human right.

Photograph of Palais des Nations by United States Mission Geneva via Flickr/Creative Commons 2.0

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