WORLD HEALTH ORGANISATION 75TH ANNIVERSARY: CRITICAL ANALYSIS ON GLOBAL HEALTH LAW

The political, legal, economic and social contours of the current international landscape present major challenges for global health governance. If ameliorating the most common causes of disease, disability and premature death require global solutions, then the future is demoralizing. The states that bear the disproportionate burden of disease have the least capacity to do anything about it. And the states that have the wherewithal are deeply resistant to expending the political capital and economic resources necessary to truly make a difference to improve health outside their borders. When rich countries do act, it is often more out of narrowly perceived national interest or humanitarian instinct than a full sense of ethical or legal obligation. The result is a spiralling deterioration of health in the poorest regions, with manifest global consequences for cross-border disease transmission and systemic effects on trade, international relations and security. For global health law to be an effective means of stopping this disastrous dynamic, the international community must overcome four ‘grand challenges’ in global health law, i.e.

• State-centricity in the international legal system.

• Skewed-priority setting.

• Flawed implementation and compliance.

• Fragmentation, duplication and lack of coordination.

A fundamental challenge of global health governance is the state-centric nature of international law. Although there has been significant encroachment on the power of states through the process of globalization, they remain the dominant actors in the international legal system. The states are the primary subjects of public international law—including international public health law—and, thus, international law sources primarily address the rights and duties of state actors.

A critical limitation of the state-centric nature of international law is its inability to incorporate non-state actors in the legal framework for global health governance. The international legal system is primarily concerned with states powers, responsibilities and relationships in the international community. However, non-state actors ranging from civil society to foundations to private enterprises are playing increasingly important roles in global health governance. While World Health Organization (WHO) and other international organizations do interact with non-state actors and incorporate them within global health governance through such means as public–private partnerships and participation in global health forums, international law does not provide a sufficient basis to fully realize the potential synergies of collaboration among stakeholders. Thus, international law needs to evolve to recognize their existence and to establish instruments and structures that will allow them to coordinate with each other and state actors to advance equitable global health.

The question of whether or not international law can govern the diverse entities that influence global health is the subject of intense debate in the literature. Indeed, a number of modern cutting-edge global health governance initiatives eschew formal international legal regimes, such as the Global Fund, Global Health Security Initiative (GHSI), International Drug Purchase Facility (UNITAID) and International Finance Facility for Immunisation.

The state-centric nature of international law poses other major obstacles to the use of global health law as an effective tool to advance global health cooperation. The idea that sovereign states are the organizing principle of international relations and, thus, are the focus of international law, has a number of important implications. The overriding principle of sovereignty makes international law fundamentally different from domestic law. In particular, international law is largely voluntary: there is generally no supranational authority to develop and enforce law against sovereign states. In treaties, the primary source of global health law today, states establish international legal rules by expressly consenting to them. Because states are generally loath to sacrifice their freedom of action through the codification of binding international law, treaties are most often far from sufficiently comprehensive and tend to incorporate limited obligations. Moreover, the drive to establish universal consensus in contemporary treaty negotiations often leads to the codification of fairly weak treaty commitments or what is known as ‘lowest common denominator’ standards. Overall, the implications of the voluntary and decentralized nature of the codification and implementation of international law permeate and deepen the remaining grand challenges of global health law.

In contemporary global health governance, states are apparently unwilling to develop international legal instruments that create binding and meaningful obligations and incentives, and provide deep funding or services for the protection of the world’s poorest people. As a consequence of the voluntary nature of international law and the overriding principle of sovereignty, states have established only a limited legal framework for national action and international cooperation to advance domestic and global public health. But this is exactly what is required to address the most intractable problems in global health.

Pursuant to international human rights law, national governments have the primary responsibility to protect and promote the health of their own populations. But what if a state is unable or unwilling to meet its responsibilities? This is a particularly hard problem, and it can result from a combination of factors: poverty, political instability, ineffectual management, corruption or absence of political will.

Poverty is the principal obstacle to disease prevention and health promotion. Poor states are in a downward spiral, with poverty making people more vulnerable to malnutrition and disease, while deteriorating health further drags down the economy. At the same time, poor health contributes substantially to political instability, including the prospect of failing or failed states. Poor or unstable governments are ill-prepared to create viable health systems or to effectively plan and implement public health interventions. Incapacity can be devastating for the public’s health, resulting in a failure to detect, prevent and ameliorate health threats, and to treat persons who are suffering and ill.

The vicious cycle of poverty, disease and political instability is the primary reason that low-income states cannot create healthy living conditions. But it is also important to stress that many countries, including developing countries, spend a minute percentage of their GDP on health, preferring to spend on armaments or other perceived needs. Furthermore, some governments misappropriate foreign health assistance, whether by excessive bureaucracy, incompetence or graft. Yet, as a consequence of the operation of the principle of sovereignty in international law, states have not created an effective legal framework to establish and hold governments accountable for investing in the health of their own populations.

More importantly, international law has not devised a method of holding rich states accountable to provide sufficient and stable international health assistance to states that lack the capacity. Developed countries have not even fulfilled their pledges made in 1975 of giving 0.7 per cent of Gross National Income (GNI) per annum on Official Development Assistance (ODA). More than 52 years later, their real contribution has only recently risen to reach a high of 0.2 per cent till the year 2021. For example, there has been no support to concretize and codify the bold norms of the United Nations Millennium Development Goals (MDGs), which address broad horizontal issues in global health relating to basic survival needs, including sanitation and sewage, pest control, clean air and water, diet and nutrition, essential medicines and vaccines and well-functioning health systems.

As a consequence of the state-centric system, the global health law agenda is also marked by skewed priorities. The treaty-making process today is driven by narrowly construed national interests or political expediency rather than by public health priorities. Much of the international community’s attention in global health lawmaking is focused at the fringes and not at the core of global health problems.

A case in point is the failed negotiations for a convention to ban the reproductive cloning of human beings. In December 2001, the General Assembly established an ad hoc working group of the Sixth Committee to consider the elaboration of an international instrument to ban the reproductive cloning of human beings. This initiative, which was sponsored by France and Germany, was motivated by the public announcements by certain laboratories of impending attempts to begin reproductive cloning of humans. The committee met in two sessions in 2001 to 2002 to elaborate a mandate for the proposed treaty, but controversy swelled before the end of the first session. The majority of state delegations supported the original proposal, which limited the treaty’s subject matter to the reproductive cloning of human beings. However, a small but vocal minority of states, led by the United States, supported extending the proposed prohibition to therapeutic cloning and embryonic stem cell research. Ultimately, the negotiations for the treaty failed, and in 2005 the United Nations General Assembly adopted a resolution calling upon member states to prohibit all forms of human cloning ‘in so far as they are incompatible with human dignity and the protection of human life.’ 

Even though the treaty-making effort failed, valuable time and resources of the Sixth Committee (the Legal Committee) and of member states were expended as wealthy, industrialized states, including France, Germany and the United States, fought over the content of a treaty addressing the ‘global health’ issue of human cloning. But codifying an international treaty on reproductive cloning was not then—and still is not—on the priority agenda of most countries, including, in particular, poor states. Indeed, at the time of the cloning treaty negotiations, only 30 states even had legislation on human cloning. Nevertheless, consistent with the contemporary process for initiating multilateral negotiations, a select few states were able to initiate negotiations for such a treaty and to draw them out for years, monopolizing the law-making agenda to hammer out matters that were not even on majority of the international community’s health radar screens.

Wealthy nations’ skewed priorities in global health lawmaking also tend to govern their global health assistance spending as well as that of the private donors based in these countries. A relatively small number of wealthy donors currently wield considerable influence in setting the global health spending agenda. There is little doubt that the single most important way to ensure population health is to build enduring health systems in all countries. States and local communities must possess well-functioning public health and healthcare systems with sound infrastructures and human resources. If the vast preponderance of international assistance went into helping poor states develop and maintain health systems, it would give them the tools to safeguard their own populations. But the current funding streams skew priorities, diverting resources from building stable local systems to meet everyday health needs. 

The experience of the cloning negotiations and other recent global health law initiatives suggests that states are not up to the hard task of using international law as an effective tool for health improvement for the world’s poorest people. The few legal instruments that are in place are historically, politically and structurally inadequate to do what is needed to lift countries out of their perpetual state of extremely poor health. A global health law governance regime must effectively set priorities. A renewed focus on the health conditions that cause by far the greatest burden of illness and early death, and on achieving greater equality, is necessary. In the currently fractured environment where states, non- governmental organizations, intergovernmental organizations and foundations all fund and prioritize different health interventions and states engage in international lawmaking that does not address the core of global health needs, establishing new and effective mechanisms to set global health lawmaking priorities is an overwhelming, but essential task.

In the state-centric international legal system, the law that is made and the law that is implemented depends upon the will of states. As states are generally unwilling to subject themselves to international scrutiny and accountability, treaties by and large are typically marked by inadequate mechanisms to promote national compliance. Although perceptions of sovereignty are slowly changing, state consent to strong and meaningful implementation mechanisms remains rare because states are concerned that international institutions charged with implementing legal obligations will interpret their authority to be more expansive than that granted to them by states, thereby impinging on state autonomy.

Thus, in the state-centric international legal system, it is not surprising that there is no meaningful dispute

settlement body in global health law today. Although the lack of concrete normative standards and capacity to assure effective implementation is an endemic problem in international law, it is a particularly acute problem in the economic and social arenas, including global health law. Most international instruments relating to health contain few incentives or options to encourage or promote compliance.

An important case in point is the International Health Regulations(IHR), which mandate that states establish systems for national epidemiological surveillance. While such a system of global epidemiological surveillance is widely recognized as an essential component of effective global disease control, the IHR does not provide any mechanism to assist poor states in establishing or maintaining their national systems. A further example is the WHO Framework Convention on Tobacco Control. In addition to establishing limited substantive obligations in tobacco control, the Convention drafters neglected to incorporate any mechanisms to promote national action or international review, including, most glaringly, an independent monitoring system, effective dispute resolution procedures, or a mechanism for ensuring that poor states have access to the resources necessary to implement their treaty obligations.

Perhaps the most discussed body of global health law is the field of health and human rights. But, even here, the norms established are vague or rhetorical, are not backed by implementation mechanisms and are silent on critically important aspects of global health. The right to health can be found in the most basic United Nations documents: Article 55 of the Charter (‘find solutions of international economic, social, [and] health problems’); Article 25 of the Universal Declaration of Human Rights (‘standard of living adequate for . . . health’) and Article 12 of the International Covenant of Economic, Social, and Cultural Rights (ICESCR) (‘highest attainable standard of physical and mental health’). These high-minded declarations and treaty provisions have had little impact on state practice: What is the exact content of the right to health recognized in these instruments? and what corresponding obligations do states, and others, thereby assume? When is the right violated? And what are the mechanisms to promote implementation of the entitlement? In international law, it is widely recognized that ambiguity in international standard setting can vitiate a state’s sense of obligation to comply with international law.

The treaty body that administers the ICESCR, known as the Committee on Economic, Social and Cultural Rights (Committee), attempted to clarify the meaning of the broad declaratory language that the ICESCR uses to set out the right to health. In a publication called General Comment 14, the Committee parsed the right to health into norms, obligations, violations and implementation. In so doing, the Committee specified core obligations to meet basic human ‘survival needs’—e.g., primary health care, essential food, adequate shelter, sanitation, safe potable water and essential drugs. Although General Comment 14 could, at least in theory, be used to make the ICESCR’s right to health meaningful, that has not happened: as the Comment, issued several years ago, has yet to be accepted as binding law by all states, its legal status remains uncertain.

The implementation challenges that riddle public international law in general and global health law in particular are not completely intractable, however, if sufficient political will exists to overcome them. This is made clear by the development of international trade law under the World Trade Organization (WTO) system. Certain organizational features of the WTO and its lawmaking apparatus make it uniquely powerful in contemporary international law and relations.

First, to become WTO members, states must consent to 24 different agreements. Second, the WTO established a powerful dispute resolution mechanism that, with a structured process (including, for example, a prompt timetable) and the capacity to enforce rulings, is an extremely rare entity in the international legal system. More specifically, WTO member states established a WTO Dispute Settlement Body that is authorized to formally adjudicate trade disputes between members. Importantly, this body is empowered to enforce its decisions by granting the winning party to right to apply trade sanctions against the losing party if the latter fails to modify its law or policy that the body found to be in violation of WTO rules. This mandatory and enforceable dispute resolution process stands in sharp contrast to the limited implementation mechanisms established by most treaties, including those in the realm of global health. Establishing effective mechanisms to promote implementation and compliance with global health law norms is an enduring challenge in global health law governance.

One of the most striking characteristics of the emerging domain of global health law is the proliferation of organizations contributing to the elaboration of this increasingly complex and multi-faceted field. These organizations include international and regional institutions outside the UN system. Overall, an increasing number of international organizations with lawmaking authority and relevant mandates are serving as platforms for global health law negotiations, while others are influencing contemporary lawmaking in this realm.

The proliferation and patchwork development of multilateral organizations with overlapping ambitions and without any central coordinating agency creates the risk that global health law will develop in an inconsistent and suboptimal manner. The experience of agency and treaty proliferation in the field of international environmental law in the last few decades provides a cautionary lesson that uncoordinated lawmaking among different international organizations can produce conflicting regimes and other counterproductive results. It has long been recognized that the lack of an umbrella environmental agency for global environmental governance has resulted in institutional overload in the field.

There is growing evidence of fragmentation, duplication and inconsistency in areas of global health law-making ranging from biotechnology to tobacco control. The complexity of global health law governance and the need for more effective coordination of the lawmaking enterprise is further evidenced by the fact that so many agencies and institutions other than those intergovernmental organizations with a mandate closely related to global health are increasingly involved in global health law governance. Institutions with a stake in global health law governance include organizations, such as the World Bank and the World Trade Organization. The growing dominance of non-state actors ranging from civil society to private enterprises to foundations in global health law governance further complicates effective coordination.

The proliferation of actors and institutions the field of global health law is not serving to strengthen global health law governance, but rather is leaving the field in disarray. More effective collective management of the emerging field of global health law is essential. The WHO has a unique directive to provide leadership and promote rational and effective development and coordination in the evolving field of health law. The WHO Constitution envisaged an agency that would use law, and exercise powers, to proactively promote the attainment of ‘the highest possible level of health’. (WHO Constitution, preamble). But the agency has never met these key expectations. The WHO did not serve as a platform for a health convention until 2003, when the World Health Assembly adopted the Framework Convention on Tobacco Control.

WHO has long been chastised for its reluctance to create binding norms, despite the bold mission and sweeping powers granted in its Constitution. The critical question, however, is whether or not WHO can deal with the most important, and intractable, health problems in the poorest regions of the world.

Amelioration of the enduring and complex problems of global health is virtually impossible without a collective response. The creation of international legal norms, processes and institutions provides an ongoing and structured forum for states to develop a shared humanitarian instinct on global health. But the problem of using international law as a tool for effective global health governance has long perplexed scholars, and for good reason.

This critical analysis has sought to set out a definition and the grand challenges in global health law today. As we have described, global health law has a number of structural inadequacies and inherent challenges— including vague standards, ineffective monitoring, weak enforcement—and a ‘statist’ approach that insufficiently harnesses the creativity and resources of non-state actors and civil society more generally. Notably, international law suffers from important structural limitations that impact its effectiveness as a tool of global health governance. These limitations include challenges of timely commitment, implementation and modification of international standards. Overall, in the absence of effective mechanisms for rationalizing and coordinating the global health law system, there are serious questions about the capacity of existing and future global health law to advance global health effectively and equitably. Thus, although members of the global community are increasingly turning their attention to the idea of international law as a tool for cooperation in global health and calling for codification of new instruments, developing strategies to improve standard-setting, implementation and coordination are enduring grand challenges in global health law.

If law is to play a constructive role in global health governance in the future, new models will be required to channel more constructive and cooperative action to address one of the defining issues of our time—the health of the world’s population. The most significant grand challenge to utilizing law as an effective tool to advance global health is the state-centricity of international law. The principle of sovereignty continues to prevail in the international legal system and states dictate whether and how law will be used to address global health problems. Importantly, however, that principle has been incrementally weakened by recent developments in the structure and the rules of the inter-state system. In particular, an increasing emphasis on human rights since the end of World War II has contributed to shifting the focus from states to individuals. At the same time, the process of globalization and the emergence of new actors on the international scene, including non-governmental organizations, corporations and coalitions of public-private partnerships, have limited state sovereignty. Collectively, these types of changes are chipping away at the classical notion of sovereignty, providing the circumstances for the continued evolution of international law in general and global health law in particular.

The contemporary attention, funding and action devoted to global health are satisfying and show promise. Global health, no less than global climate change, is a defining issue of our time. But if the international community does not come together with a shared vision and architecture for effective self-governance, all of this interest will wane. And if it does, the vicious cycle of poverty, political instability and poor health will continue unabated.

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