Transcript Slide 1

Introduction to Global Health Law
Professor Allyn Taylor
O’Neill Institute for National and Global Health Law
Georgetown University Law Center
Recent developments in global
health law: binding instruments
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Binding instrument initiatives:
• 2003 WHO Framework Convention on Tobacco
Control
• 2005 International Health Regulations
• 2006 United Nations Convention on Disabilities
• United Nations (failed) negotiations on a proposed
convention on reproductive cloning
• Other treaty initiatives closely “linked “ with
international health (i.e.. treaties addressing issues
in global environmental health).
Recent developments:
global health law: non-binding
instruments
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Non-binding instruments:
• Resolutions, declarations, codes of conduct.
guiding principles
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Relating to health or particular populations or
global public health concerns
Recent initiatives:
• WHO Global Strategy and Plan of Action on Health,
Innovation and Intellectual Property
• Proposed WHO Code of Practice on Health Worker
Migration
Recent developments in global health law
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In global health, as in other realms of international
cooperation, there is a preference for binding
international instruments.
Proposals for new binding instruments
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Framework convention on alcohol control
Treaty to address global obesity
Treaty on global health
Framework convention on global health
Framework convention on nanotechnology
61st World Health Assembly:
 Biomedical R&D treaty
 Binding instrument on marketing of unhealthy foods and beverages to
children
 Treaty to reduce child deaths by 2025
Questions for future health
negotiations: Choice of instruments
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Why do states differentiate agreements into
some that are formally binding and some that are
not?
What difference does the form of an international
instrument make to its effectiveness?
How should we advance an optimal policy mix of
instrument form and substantive and procedural
content in future negotiations?
The state system:
The principle of sovereignty
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“ Sovereignty and equality of states
represent the basic constitutional
doctrine of the law of nations….”
(Brownlie)
Corollaries of sovereignty:
• States have international legal personality
• Duty of non-intervention
The erosion of sovereignty: The
end of the state system?
State sovereignty is being redefined by
the forces of globalization…The state is
now widely understood to be the servant
of the people and not visa versa. At the
same time, individual sovereignty has
been enhanced by a renewed
consciousness of the right of every
individual to control his or her own
destiny.
Kofi Annan
Sovereignty and the nature of
international law
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International law is largely voluntary
• To a great extent the responsibility to
develop and apply legal rules lies with
states themselves.
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In the international system there is
no supranational authority to police
and enforce the law.
Sources of international law:
(Article 38.1 Statute of the ICJ)
The Court, whose function is to decide in
accordance with international law such
disputes as are submitted to it, shall
apply:
 International conventions, whether
general or particular, establishing rules
expressly recognized by the contesting
states;
 International custom as evidence of the
general practice accepted as law;
Treaties
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A treaty is a form of contract between states
and represents the express legal rights and
obligations to which parties have agreed. As
a general rule, treaties are binding only upon
states that have consented to them.
Pacta Sunt Servanda: fundamental principle
that agreements, even between sovereign
states are to be obeyed.
Treaty=Convention, Accord, Protocol, Pact.
Vienna Convention on the
Law of Treaties
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Article 2(1): Treaty defined as “an
international agreement concluded
between states in written form and
governed by international law.
Article 6: Every State possesses capacity
to conclude treaties.
Article 26: Every treaty in force is binding
upon the parties to it and must be
performed in good faith.
Article 27: A state may not invoke
provisions of internal law as a justification
of failure to perform a treaty.
Why is there a preference for
binding instruments?
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The preference for binding instruments reflects
the widely held view that non-binding
instruments are weak, inferior and ineffective in
stimulating national compliance.
Credibility of binding instruments:
• Hard law is seen as raising the moral, political and legal
stakes of compliance.
• The fact that treaties need to go through a process of
domestic ratification further bolsters the credibility of
binding commitments.
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Role of international organizations
The strengths of international law:
The “power of the process”
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The sheer process of negotiating an international
instrument can stimulate national action and international
cooperation long before instrument is adopted:
• Negotiation process can bring an issue to the global
stage.
• Negotiation process can bring together different
ministries within national governments to forge national
solutions.
• Negotiation process can encourage the development of
national coalitions and international partnerships.
• Negotiation process can promote the development and
coordination of civil society, nationally and
internationally.
Challenges of global
lawmaking
“Getting
action in the United Nations,” a
diplomat once complained, "is like the
mating of elephants. It takes place at a
very high level, with an enormous
amount of huffing and puffing, raises a
tremendous amount of dust and nothing
happens for at least 23 months.”
Pamela Chasek, Earth Negotiations: Analyzing 30 years of
Environmental Diplomacy, 2001.
Challenges of global lawmaking
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State Consent/Sovereignty
Drive for Universality-’Lowest Common
Denominator’ Standards
No International Legislature and No Rational
Approach to Law Creation
No International Executive Authority
No Effective International Judiciary
Severe Problems in International Legislative
Process
Limited Jurisdictional Scope
Severe Problems of Treaty Compliance
What is the potential legal and political
impact of non-binding instruments?
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In the past it was widely accepted that no international
‘law’ governed a subject until a treaty was created. Today,
however, most recognize that formal recommendations of
international organizations can, at times, create norms that
guide the behavior of states and other actors.
The political and legal significance of some
intergovernmental resolutions is captured by the idea of
‘soft law.’
Although technically non-binding, a resolution formally
adopted by the World Health Assembly is the expression of
the opinion and the expectations of the international
community in its widest possible political forum and can
have important legal and political consequences.
The potential impact of non-binding
instruments: The proposed WHO Code of
Practice on Health Worker Migration
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The power of the process: negotiating an international
instrument, binding or non-binding, can stimulate national
action and international cooperation long before instrument
is adopted.
Advantages of non-binding approach to standard-setting:
• Flexibility: allows states to confront a problem collectively when don’t
want to legally restrict their freedom of action
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Agreement easier to achieve and update relative to binding law
• Dynamic process: a non-binding approach to standard-setting can
initiate a discourse among relevant actors and a process of learning
that can lead to the deepening of obligations over time
• Allows for participation of non-state actors
The potential impact of a WHO Code of
Practice: the ‘hardening’ of ‘soft’ norms
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Code standards can be adopted and implemented by states
into national law and practice.
Compliance strategies used in non-binding instruments
often parallel mechanisms used in treaties.
• Compliance mechanisms:
 Monitoring
 Technical advice and assistance
The potential impact of a WHO Code of
Practice: the ‘hardening’ of ‘soft’ norms
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Code standards can be implemented by WHO and other
international institutions.
• WHO:
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Implementation, technical support and follow-up can be
incorporated into WHO’s regular budget.
• Other regional and international institutions:
 Code norms can be cited by regional and international
courts
 Code standards can be operationalized by the practices of
other international organizations.
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Through these mechanisms and others the soft norms of a
Code of Practice can begin to harden and may, at times,
lead to the eventual codification of a treaty.
International instruments:
looking toward the future
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The form of an international instrument does not
dictate the depth of its substantive obligations or
the scope of its compliance mechanisms.
Non-binding instruments may, at times, promote
deeper commitments with stricter compliance
mechanisms than binding instruments.
Appreciation of the interaction between the form
of international instruments and their substance
should guide the development of future
international instruments.
International Organizations
International Organizations
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International
organizations are
institutions created
by sovereign states
to accomplish
mutual goals
International
organizations have
rights and duties
under international
law
Representative
Organ of Member
States
Secretariat
Subsidiary
Organ
Subsidiary
Organ
Governing Bodies of WHO
World Health
Organization
World Health
Assembly
(193 Member States)
Executive
Board
(34 Member States)
WHO Secretariat
DirectorGeneral
Headquarters
Geneva
(3500)
SEARO
EURO
AFRO
EMRO
WIPRO
AMRO
Doctrine of Delegated Powers:
WHO Constitution
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Article 1 Objective
• The objective of [WHO] shall be the
attainment by all peoples of the highest
possible level of health.
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Definition of Health (Preamble)
• Health is a states of complete, physical,
mental and social well-being and not
merely the absence of infirmity or
disease
Core Functions of WHO:
Art 2. Constitution
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Directing and Coordinating Authority
on Global Health
Technical Assistance to Countries
Public Health Research
Normative Function
• Recommendations (Article 23)
• Regulations (Article 21)
• Conventions (Article 19)
International Legal Personality
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Constitution of the World Health
Organization
Article 1
• The objective of the World Health Organization
(hereinafter called the Organization) shall be
the attainment by all peoples of the highest
possible level of health.
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Article 19
• The Health Assembly shall have the authority
to adopt conventions or agreements with
respect to any matter within the competence
of the Organization.
Wide Diversity of International
Health Actors : A Challenge for
WHO?
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International Organizations
Foundations (Gates Foundation)
Religious groups
Universities
Non-governmental organizations
For profit organizations (pharmaceutical
organizations)
Health Research Networks
Public Private Partnerships