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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 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 Non-binding instruments: • Resolutions, declarations, codes of conduct. guiding principles 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 In global health, as in other realms of international cooperation, there is a preference for binding international instruments. Proposals for new binding instruments • • • • • • 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 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 “ 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 International law is largely voluntary • To a great extent the responsibility to develop and apply legal rules lies with states themselves. 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 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 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? 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. Role of international organizations The strengths of international law: The “power of the process” 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 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? 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 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 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 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 Code standards can be implemented by WHO and other international institutions. • WHO: 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. 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 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 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 Article 1 Objective • The objective of [WHO] shall be the attainment by all peoples of the highest possible level of health. 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 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 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. 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? International Organizations Foundations (Gates Foundation) Religious groups Universities Non-governmental organizations For profit organizations (pharmaceutical organizations) Health Research Networks Public Private Partnerships