Regime Shifting by Multinational Corporations within Constitutional Courts in Developing Countries: Analysing Tobacco Litigation

Abstract

Increasing awareness of the harms associated with tobacco led governments around the world to introduce a range of measures, from smoke free laws to restrictions in the advertisement of tobacco products, especially in the wake of signing the Framework Convention on Tobacco Control (FCTC). The tobacco industry began challenging this growth of regulation in international courts and courts in developed countries. More recently, they have brought the fight to low- and middle-income countries. Using constitutional case analysis from tobacco litigation in South Africa, India, Uganda and Kenya, this article argues that there is increasing evidence that tobacco companies are engaged in vertical forum shifting through a reappropriation of constitutional rights from corporations. This we argue, has had an adverse impact on human rights in low- and middle-income countries. We end this article by boldly calling on courts to find (and limit) the kinds of rights that are to apply to corporations.