The International Covenant Betrayal: How Australia’s Vaping Ban Undermines the Right to Health

Human rights are often spoken of in lofty and inspiring terms. Governments invoke them when discussing equality, dignity, healthcare, justice and the protection of vulnerable people. Australia has long presented itself as a nation committed to these ideals, proudly signing international treaties and declaring its support for the protection of fundamental human rights. These commitments are regularly cited in political speeches and international forums as evidence of Australia’s moral leadership and its respect for the rules-based international order. Yet there is an extraordinary contradiction at the heart of Australia’s tobacco and nicotine policy that receives almost no public attention. While governments proclaim their commitment to protecting the right to health, they have simultaneously erected barriers that make it increasingly difficult for millions of adult smokers to access products that a growing body of scientific evidence suggests are substantially less harmful than continuing to smoke combustible cigarettes. This contradiction raises a profound question that extends well beyond tobacco policy. It asks whether Australia is honouring not only the spirit of its international human rights obligations but also the principles that underpin them.

Australia is a signatory to the International Covenant on Economic, Social and Cultural Rights, one of the world’s most important human rights treaties. Article 12 recognises “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” These are not empty or symbolic words. The Covenant represents a solemn commitment by governments to create the conditions that enable individuals to achieve the best health outcomes reasonably possible. It recognises that health is not merely the absence of disease but the product of social conditions, access to healthcare, education, information and the ability of individuals to make decisions that improve their own wellbeing. Importantly, the right to health has never been interpreted as requiring governments to guarantee perfect health or eliminate every possible risk from society. Instead, it requires governments to progressively realise conditions that enable people to protect themselves from avoidable illness and reduce preventable harm. It is fundamentally about empowerment rather than control.

The United Nations Committee responsible for interpreting the Covenant has repeatedly explained that the right to health includes the availability, accessibility and acceptability of health-related goods and services while respecting personal autonomy and informed decision-making. In other words, governments are expected to remove unnecessary obstacles that prevent individuals from protecting their own health. They are expected to provide accurate information, ensure that products are appropriately regulated for safety and quality, and allow people to make informed choices based upon the best available evidence. This principle has become a cornerstone of modern public health because it recognises that individuals are not passive recipients of government protection but active participants in managing their own health risks throughout their lives.

This is where Australia’s vaping policy enters deeply uncomfortable territory. Smoking remains one of the leading causes of preventable disease and premature death around the world. The overwhelming scientific consensus is that the vast majority of smoking-related illnesses arise not from nicotine itself but from the thousands of toxic chemicals generated through the combustion of tobacco. For decades, public health campaigns have urged smokers to quit because inhaling burning tobacco is extraordinarily dangerous. Yet when technologies emerged that allowed nicotine to be delivered without combustion, many governments viewed them not as one of the greatest opportunities to reduce smoking-related disease, but as a new threat requiring aggressive suppression.

The scientific question surrounding vaping is no longer whether it is safer than smoking, but by how much. Cigarette smoke is created by combustion, a process that generates thousands of toxic chemicals and is responsible for the overwhelming burden of smoking-related disease and death. Vaping removes combustion altogether. That single distinction fundamentally changes the toxicological profile of nicotine use. Biomarker studies consistently show that smokers who switch completely to vaping substantially reduce their exposure to many of the chemicals known to cause cancer, cardiovascular disease and respiratory illness. This is precisely why many scientists, clinicians and public health experts regard vaping as one of the most significant harm reduction innovations in tobacco control. No public health intervention is judged against perfection. It is judged against the alternative that people would otherwise choose. For millions of smokers who cannot or do not quit nicotine, the alternative is not breathing clean air; it is continuing to smoke cigarettes. When viewed through that lens, restricting access to a substantially lower-risk alternative becomes increasingly difficult to reconcile with a government’s obligation to help citizens achieve the highest attainable standard of health.

This principle is neither radical nor unique. It is simply harm reduction, an approach that has become one of the defining achievements of modern medicine and public health. Society routinely accepts interventions that reduce risk without eliminating it. Seatbelts do not prevent every road fatality, yet no one argues they should be prohibited because they are imperfect. Bicycle helmets do not eliminate head injuries, but governments encourage their use because reducing risk saves lives. Condoms do not prevent every sexually transmitted infection, yet they are promoted because lowering risk is preferable to ignoring it. Methadone and buprenorphine do not eliminate opioid dependence, but they have saved countless lives by reducing overdose deaths and improving health outcomes. Needle and syringe programs do not endorse drug use; they acknowledge reality and seek to minimise avoidable harm. Across countless areas of medicine and public policy, the principle remains remarkably consistent. When a safer alternative exists for people who are unable or unwilling to eliminate risk, reducing harm is considered both compassionate and evidence-based.

It is therefore striking that tobacco policy has increasingly abandoned this principle. Rather than encouraging smokers to move away from combustible tobacco, Australia has made access to lower-risk nicotine products increasingly difficult. Legal retail access has been heavily restricted, regulatory barriers have multiplied, and adult smokers who wish to switch are often confronted with a complex and confusing system that bears little resemblance to ordinary consumer access. Meanwhile, the most dangerous nicotine product of all combustible cigarettes remains legally available in thousands of retail outlets across the country. The result is a policy that appears almost paradoxical. The product responsible for the overwhelming burden of tobacco-related disease remains comparatively accessible, while products believed to expose users to substantially fewer toxic chemicals have become far more difficult to obtain.

This inversion of public health priorities raises questions that extend beyond regulatory philosophy. It challenges the very concept of proportionality that lies at the heart of both public health ethics and international human rights law. Governments undoubtedly have legitimate reasons to regulate nicotine products. Protecting children from addiction is an entirely appropriate objective. Ensuring product safety, manufacturing standards, accurate labelling and restrictions on youth marketing are all consistent with good governance. Human rights law has never prevented governments from regulating products where legitimate public interests exist. However, restrictions should be proportionate to the harms they seek to prevent, and they should avoid unnecessarily impairing people’s ability to protect their own health.

When policies intended to prevent youth vaping simultaneously create substantial barriers for millions of adult smokers seeking to reduce their exposure to deadly tobacco smoke, governments bear the responsibility of demonstrating that these restrictions are both necessary and proportionate. That justification becomes increasingly difficult when unintended consequences begin to emerge. Australia has experienced the rapid expansion of illicit tobacco markets, widespread illegal vape sales and growing concerns that smokers are finding it harder rather than easier to transition away from combustible cigarettes. Whether these outcomes were intended is beside the point. Public policy should ultimately be judged by its real-world effects rather than its aspirations.

The right to health has always recognised that individuals possess agency. It acknowledges that people should be empowered to make informed decisions about their own well-being rather than having every decision imposed upon them by the state. This principle is particularly important in situations involving addiction, where many smokers have repeatedly attempted to quit using conventional methods without success. For these individuals, denying or severely restricting access to less harmful alternatives may not eliminate nicotine use. Instead, it may simply preserve cigarette smoking as the default outcome. That possibility raises profound ethical concerns because the consequence is not theoretical. Smoking-related diseases continue to claim lives every single day, and every policy decision that affects smokers’ ability to move away from combustible tobacco carries potentially significant public health implications.

The debate, therefore, extends beyond vaping itself. At its heart lies a broader question about the role of government in a free society. Should governments provide citizens with accurate information, regulate products appropriately and allow informed adults to make decisions about reducing their own health risks? Or should governments determine which lawful choices adults are permitted to make, even when those choices may substantially reduce their exposure to known causes of disease? The International Covenant was drafted in the aftermath of immense global suffering because its authors recognised that health, dignity and autonomy are inseparable. Respecting human rights means more than simply providing hospitals and medical treatment. It means respecting people’s capacity to improve their own lives where safer options exist.

Australia may rightly point to the significant decline in smoking prevalence over recent decades as evidence that its tobacco control measures have contributed to improved public health. Those achievements deserve recognition. However, success in one era should not become an excuse for inflexibility in another. Public health must evolve alongside scientific evidence, and policies that fail to adapt risk becoming obstacles rather than solutions. As new evidence emerges regarding less harmful alternatives to combustible tobacco, governments should be willing to reassess existing approaches rather than remain committed to policies shaped by an earlier understanding of nicotine use. Otherwise, there is a risk that well-intentioned policies may inadvertently undermine the very health outcomes they seek to improve.

Whether Australia’s vaping restrictions ultimately constitute a breach of its obligations under the International Covenant is ultimately a legal question that would depend upon detailed judicial interpretation and the application of international human rights principles. Reasonable legal scholars may disagree on where that line should be drawn. However, the broader ethical question is much more difficult to dismiss. If governments knowingly make it harder for adult smokers to access products that are widely believed to be substantially less harmful than the cigarettes they continue to sell legally, can they genuinely claim to be advancing the highest attainable standard of health?

That question deserves far greater attention than it currently receives because it exposes a contradiction that sits at the centre of Australia’s tobacco policy. A nation that proudly champions human rights abroad should be equally willing to examine whether its domestic health policies genuinely empower citizens to protect their own well-being. Human rights lose much of their meaning when they become aspirations invoked in speeches but overlooked when they challenge entrenched public health orthodoxy. If the right to health is to mean anything at all, it must include the freedom of informed adults to choose less harmful pathways away from products that are known to kill. Anything less risks transforming one of humanity’s most important human rights into little more than a political slogan.