Lawrence O. Gostin, Global Health Law Governance

• Citation: Vol. 22 No. 1
• Publication year: 2008

GLOBAL HEALTH LAW GOVERNANCE^*

Lawrence O. Gostin^**

My lecture is going to search for solutions to the most perplexing problems in global health. I am not going to take an optimistic or rosy view. I am going to take a hard-headed view about what the deep problems are that face world health, problems that are so important that they affect the fate of millions of people with economic, political, and security ramifications for the world's population. I think we would all agree that no state acting alone can insulate itself from major health hazards. The determinants of health do not originate solely with the national borders, pathogens, air, food, water, and even lifestyle choices. Health threats, rather, spread inexorably to neighboring countries, regions, and even continents, and it is for this reason that safeguarding the world's population requires cooperation and global governance.

If I am correct that ameliorating the most common causes of disease, disability, and premature death require global solutions, then I am afraid 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, and they are beginning to, it is often more out of a narrow sense of self-interest or a humanitarian instinct than a full sense of ethical or legal obligation. The result is a spiraling deterioration of health in the world's poorest regions, with manifest global consequences for cross- border disease transmission and systemic effects on trade, international relations, and security.

There are a variety of solutions that activists and scholars propose to improve global health and close the yawning health gap between rich and poor.

State advocates argue forcefully that global health is in the national interest of major states' powers, or that states owe an ethical obligation to act, or that international legal norms, notably the right to health, require effective action. However, arguments based upon national interest, ethics, or international law have logical weaknesses. The coincidence of national and global interests is much narrower than scholars claim, and ethical arguments unravel when searching questions are asked about who exactly has the duty to act and at what level of commitment. International law has serious structural problems of application, definition, and enforcement. Moreover, current policies and practices, as we can all see, are not working on the ground, and they are not likely to do so in the future unless we change things and change them quickly.

But even suppose that we were able to overcome all of these problems and that the international community became convinced that amelioration of global health hazards was in the national interest of each of its members, or that they otherwise accepted the claim that they have an ethical or legal obligation to act-would the consequent funding and other efforts make a difference? If past history is any guide, the answer may be, sadly, no. Most development assistance is driven by high profile events that evoke public sympathy, such as a natural disaster in the form of a hurricane, tsunami, drought, or famine, or an enduring catastrophe such as AIDS, and politicians may lurch from one frightening disease to the next, irrespective of the level of risk, ranging from anthrax and smallpox to SARS, influenza A, H5M1, and bioterrorism. The fundamental problems of global health remain.

What is truly needed is to meet what I call basic survival needs, which is what richer countries instinctively, although not always adequately, do for their own citizens. Basic survival needs include sanitation and sewage, pest control, clean air and water, tobacco reduction, diet and nutrition, essential medicines and vaccines, and functioning health systems for the prevention, detection, and mitigation of disease and premature death. By focusing on these major determinants of health, the international community could dramatically improve prospects for good health. Meeting everyday survival may lack the glamour of high-technology medicine or dramatic rescue, but what they lack in excitement they gain in their potential impact on health precisely because they deal with the major causes of common disease and disabilities across the globe.

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 how can international law play a constructive role? Existing legal solutions have deep structural faults. The most glaring problem, widely debated by scholars, is whether international law is law at all in the traditional sense, with clear standards and systematic enforcement. Standard setting and enforcement are particular problems in health, even more so than in other fields of transnational law, but the debate over whether international law really is law does not even address the hardest problems in global health.

International law principally has bite, if at all, in governing relations between and among states, such as international trade law, or it may hold states accountable for the treatment of its own citizens, such as international human rights law. It is rare for international law to force states to provide funding, services, or protection for the population of other states, but this is exactly what is required to solve the most intractable problems in global health.

If law is to play a constructive role, it will require an innovative way of structuring international obligations, and this in turn will require states to accede to a new model. A vehicle such as a framework convention on global health could be a starting point. Such a framework convention could commit states to a set of benchmarks, both economic and logistical. It could set achievable goals for global health spending as a proportion of the GNP. It could define areas of cost-effective investment to meet basic survival needs. It could build sustainable health systems, including trained health care professionals, surveillance, and laboratories, and it could create incentives and systems for scientific innovation for affordable vaccines and essential medicines.

The World Health Organization or a newly created institution could set ongoing standards, monitor progress, and mediate disputes. A framework convention on global health or a similar mechanism would not be easy to...