Implementation of international health law: a challenge for the future.

Position:Proceedings of the 101st Annual Meeting of the American Society of International Law: The Future of International Law - Discussion

The panel was convened at 9:00 a.m., Friday, March 30, by its moderator, Fernando Gonzalez-Martin of the World Health Organization, who introduced the panelists: Gian Luca Burci of the World Health Organization; Lawrence Gostin of Georgetown University Law Center; and Bruce Plotkin of the World Health Organization.

INTRODUCTORY REMARKS BY FERNANDO GONZALEZ-MARTIN **

International health law is an expanding field. In 2003, with support of the World Health Organization Secretariat, the member states of that specialized agency of the United Nations adopted the Framework Convention on Tobacco Control and, more recently, the International Health Regulations (2005), which will enter into force on June 15, 2007. The number of international legal instruments and norms that deal with or affect health, however, are much more varied and are often considered soft law as opposed to hard law. Yet the challenges encountered in implementing these norms and agreements can be strikingly similar. This panel on the implementation of international health law aims to:

(1) survey the field of international health law and the dynamics of its expansion;

(2) give a concrete example of one particular international legal instrument and how it is being implemented: the International Health Regulations (2005); and

(3) identify some the key global health problems and future challenges that the international community has yet to address through law and regulation, and propose possible multilateral solutions.

A PROPOSAL FOR A FRAMEWORK CONVENTION ON GLOBAL HEALTH

By Lawrence O. Gostin ([dagger])

Why should rich countries care about the world's least healthy people? The reason why rich countries should care is that global health serves their national interests. Helping the most disadvantaged also is ethically the right thing to do. If international health assistance could be structured in a way that was scalable (sufficient to meet deep needs) and sustainable (to create enduring solutions), it would have a dramatic influence on the life prospects of the world's poorest populations.

Governments have no choice but to pay close attention to health hazards beyond their borders. DNA fingerprinting has provided conclusive evidence of the migration of pathogens from less- to more-developed countries. In fact, more than thirty infectious diseases have emerged over the last two-three decades. Wealthy countries, moreover, are less able to ameliorate these harms because many resurgent diseases have developed resistance to frontline medications.

Beyond narrow self-interest, there are broader, "enlightened" interests in global health. A forward-looking foreign policy would seek to redress extremely poor health in the world's poorest regions. Epidemic disease dampens tourism, trade, and commerce, as the 2003 SARS outbreaks demonstrated. Animal diseases such as foot and mouth disease, bovine spongiform encephalopathy, and avian influenza similarly had severe economic repercussions involving mass slaughter of animals and bans on trade.

In regions with extremely poor health, economic decline is almost inevitable. The World Bank, for example, estimates that AIDS has reduced GDP nearly 20% in the hardest-hit countries in Africa. Countries with extremely poor health become unreliable trading partners lacking the capacity to develop and export products and natural resources, pay for essential vaccines and medicines, and repay debt. Countries with unhealthy populations also require increased financial aid and humanitarian assistance. In short, a foreign policy that seeks to remedy health threats in poor countries can benefit the public and private sectors in developed, as well as developing, countries.

Extremely poor health in other parts of the world can affect the security of highly developed countries, as well. Research shows a correlation between health and the effective functioning of government and civil society. States with exceptionally unhealthy populations are often in crisis, fragmented, and poorly governed. In its most extreme form, poor health can contribute to political instability, civil unrest, mass migrations, and human rights abuses. In these states, there is greater opportunity to harbor terrorists or recruit disaffected people to join armed struggles. Politically unstable states require heightened diplomacy, create political entanglements, and sometimes provoke military responses.

Diseases of poverty overwhelming are concentrated in sub-Saharan Africa, and it is no surprise that many of these problems occur in that region. But Africa has weak political, military, and economic power, so it can too easily be ignored. The same cannot be said about the burgeoning health crises emerging in pivotal countries in Eurasia, such as China, India, and Russia. These countries are in the midst of a "second wave" of HIV/AIDS, with prevalence rates rising twenty-fold in less than a decade. Russia's official infant mortality rate is 3-4 times higher than in North America and Western Europe, which is a prime predictor of state instability. Political instability in a region with such geostrategic importance will have major international ramifications.

If political leaders became convinced that amelioration of global health hazards was in their national interests, would the consequent funding and efforts make a difference? If past history is any guide, the answer is no. Most development assistance is driven by high-profile events that evoke public sympathy, such as a natural disaster, an enduring catastrophe such as AIDS, or a frightening disease such as SARS or influenza A (H5N1). What is truly needed, and which richer countries instinctively (although not always adequately) do for their own citizens, is to meet what I call "basic survival needs." Basic survival needs include sanitation and sewage, pest control, clean air and water, tobacco reduction, diet and nutrition, essential medicines and vaccines, and well-functioning health systems. Mobilizing the public and private sectors to meet basic survival needs, comparable to a Marshall Plan, could radically transform prospects for good health among the world's poorest populations.

If meeting basic survival needs can truly make a difference for the world's population, and if this solution is preferable to other paths, then can international law structure legal obligations accordingly? The answer is that extant health governance has been lamentably deficient, and a fresh approach is badly needed. As my colleague Gian Luca Burci cogently explains, modern international health law is remarkably thin, with only two regulations and one treaty in the 60 years of WHO's existence.

Consequently, innovative models of global health governance are essential, and here I make the case for a Framework Convention on Global Health (FCGH). I am proposing a global health governance scheme incorporating a bottom-up strategy that strives to:

* build capacity, so that all countries have enduring and effective health systems;

* set priorities, so that international assistance is directed to meeting basic survival needs;

* engage stakeholders, so that a wide variety of state and non-state actors can bring to bear their resources and expertise;

* coordinate activities, so that programs among the proliferating number of actors operating around the world are harmonized; and

* evaluate and monitor progress, so that goals are met and promises kept.

The framework convention-protocol approach refers to a process of incremental regime development. In the initial stage, states would negotiate and agree to the framework instrument, which would establish broad principles for global health governance: goals, obligations, institutional structures, empirical monitoring, funding mechanisms, and enforcement. In subsequent stages, specific protocols would create more detailed legal norms, structures, and processes.

The framework convention approach is becoming an essential strategy of powerful transnational social movements to safeguard health and the environment. In addition to the FCTC, a series of international environmental treaties serve as models for global health governance, such as the Vienna Convention for the Protection of the Ozone Layer and the UN Framework Convention on Climate Change. These framework conventions recognize that a collective effort is necessary to mitigate the threat that humans pose to health and the environment. Although far from perfect, environmental and health conventions offer inventive approaches to global governance.

An FCGH would represent an historical shift in global health, with a broadly imagined global governance regime. The initial framework would establish the key modalities, with a strategy for subsequent protocols on each of the most important governance parameters. It is not necessary, or perhaps even wise, to specify in detail the substance of an initial FCGH, but it may helpful to state the broad principles:

* FCGH mission--Convention Parties seek innovative solutions for the most pressing health problems facing the world in partnership with non-state actors and civil society, with particular emphasis on the most disadvantaged populations;

* FCGH objectives--establish fair terms of...

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