TABLE OF CONTENTS I. INTRODUCTION II. THE WHO'S EXPERIENCE WITH HARD INTERNATIONAL HEALTH LAW A. Hard Law: Uses and Drawbacks B. The WHO's Article 19 Power and Experience C. The WHO's Article 21 Power and Experience D. Summary III. THE SOFT LAW ALTERNATIVE: ATTRIBUTES AND PROSPECTS A. Sovereignty Costs and Normative Experimentation B. Coordination and Central Coordinator C. Participation of Non-State Actors D. Nimble and Responsive to Rapid Scientific Change E. Customary International Law F. Summary IV. APPLICATION OF SOFT LAW TO THE WHO AND INTERNATIONAL HEALTH LAW A. Lowering Sovereignty Costs and Establishing Health Norms B. Global Health Coordination and the WHO as Coordinator C. Participation of Non-State Actors D. Nimble and Responsive Health Agreements E. Customary International Health Law F. Summary V. A FOURTH AGREEMENT: WILL HISTORY REPEAT? VI. CONCLUSION I. INTRODUCTION
In 1947, the world "recognized that the solution of certain problems in the field of health depends on international action" (1) and needed a "powerful and competent international body [to] apply modern remedies ...." (2) In this spirit, the Constitution of the World Health Organization (WHO) bestowed on its highest decision-making body, the World Health Assembly (WHA), (3) the power to adopt binding international agreements. (4) However, it has used this power only three times. (5) Some commentators label this inaction "myopia," (6) argue it damages the WHO's institutional legitimacy, (7) and advocate greater use. (8) Perhaps in response to this criticism, in May 2012, the WHA unanimously resolved to begin work on a fourth agreement. (9)
However, "soft law" agreements are also used to coordinate and organize international activity. (10) This Note argues that instead of energizing its mostly dormant treaty-making authority, the WHO can better facilitate the development of global health 'law' by promulgating soft law instruments containing specific, concrete provisions. Practitioners in international financial and environmental law have deployed such instruments effectively to decrease the barriers to entry, articulate norms, facilitate coordination, involve non-state actors, and respond to rapid change. (11)
Section II of this Note analyzes the WHO's experience with its constitutional treaty-making power, revealing significant drawbacks to hard lawmaking. Section III defines soft law, reviews its relative benefits, and explains why it works with international financial and environmental agreements. Section IV analyzes the characteristics of sort law in light of the goals of global health law, (12) concluding that it provides an effective basis for coordinating international health efforts and potentially creates binding customary law. Section V will critique the recent WHA decision to pursue another binding agreement and explain why the choice of instrument may hinder, rather than foster, its noble aims.
THE WHO's EXPERIENCE WITH NARD INTERNATIONAL HEALTH LAW
The mission of the WHO is "to act as the directing and coordinating authority on international health work." (13) Much global health research concerns the WHO's activity. (14) Due to its position, some commentators have lamented the "untapped" potential of the WHO's role in crafting global health law, (15) defined as:
[A] field that encompasses the legal norms, processes, and institutions needed to create the conditions for people throughout the world to attain the highest possible level of physical and mental health. The field seeks to facilitate health-promoting behavior among the key actors that significantly influence the public's health, including international organizations, governments, businesses, foundations, the media, and civil society. The mechanisms of global health law should stimulate investment in research and development, mobilize resources, set priorities, coordinate activities, monitor progress, create incentives, and enforce standards. Study and practice of the field should be guided by the overarching value of social justice, which requires equitable distribution of health services, particularly to benefit the world's poorest populations. (16) Specifically, they point to the WHO's scarce use of its treaty-making authority, (17) which could create binding international law. (18) Inherent in this argument is the notion that if the WHO's treaty power remains unused, international health law as a whole will remain underdeveloped and this would impede global health action and commitment. (19)
However, the incremental benefits to treaty-making are rarely implicated in global health agreements while the potential costs remain significant. In this Section, the substantive and procedural benefits to crafting and implementing treaties are examined and applied in the context of the three existing agreements adopted under the WHO Constitution.
Hard Law: Uses and Drawbacks
Traditionally, hard international law refers to the "rules that govern relations between states." (20) Rules are acknowledged by the "international community of states" in one of three forms: a treaty obligation, customary law, or derived from general principles common to major domestic legal systems. (21) While contemporary definitions recognize the roles and relationships of international organizations, private entities, and human beings, (22) states are the main subjects of international law (23) and, generally speaking, requisite obligations fall on them alone. (24)
Generally, states use treaties for one or more of the following reasons: (1) to credibly commit themselves to promises; (2) to enforce obligations; (3) to develop mechanisms for later interpretation and compulsory conflict resolution; or (4) in certain countries, to produce self-executing domestic obligations. (25) In trade law, for instance, treaty instruments dominate (26) because market behavior needs to be constrained and disputes between parties arbitrated. (27) Seemingly, restricting the ability of all parties to make certain choices in their own interests will deliver benefits to each in excess of those that could be achieved without a binding agreement.
However, there are significant drawbacks to pursuing agreement by treaty. As indicated above, constraints on behavior, known as "sovereignty costs" serve to "limit a state's ability to follow its own national prerogatives." (28) This drawback is accentuated because treaties take years to conclude, and require heads of state to execute. (29) It is especially onerous because coordination and standard setting tend to be the province of technocrats, not chief executives. (30) Salient private actors cannot become parties to treaties either, (31) meaning agreements can exclude critical partners (or potential underminers). Rapid scientific advances can undercut static international agreements, (32) which cannot be amended quickly. (33) Consequently, hard law instruments work less well in environmental (34) and financial contexts. (35)
Further, treaties are not necessarily harder than other international agreements simply because the instrument is hard. Many treaties contain vague obligations, seemingly drafted to ensure that parties will ratify the document without actually imposing concrete obligations. (36)
All told, treaties are not the panacea they are sometimes advocated to be. Bearing in mind their benefits and shortcomings, the following Subsections briefly review the three instances in which the WHA exercised its treaty powers, demonstrating how the costs can be pervasive.
The WHO's Article 19 Power and Experience
Article 19 of the WHO Constitution states that the WHA may "adopt conventions or agreements with respect to any matter within the competence of the Organization." (37) Because the scope of the provision is so broad, it has been described as having "virtually limitless potential." (38) From the start, however, the WHO and its member states were hesitant to use this power due to the costs outlined above. The WHO's founders considered several entry-into-force provisions, eventually choosing one that left considerable discretion to member states whether to accede to an Article 19 measure after WHA adoption. (39) In fact, Article 19 only requires that member states consider signature and ratification. (40) The apparent sovereignty concerns underlying this sleight-of- hand result in a power that is softer than advertised.
Even with this blunted apparatus, Article 19 sat dormant for over half a century. (41) Finally, in the mid-1990s, a growing tobacco pandemic sparked interest in its mobilization. (42) Even then, nearly ten years elapsed between the WHA decision to begin work on an Article 19 agreement (43) and the entry into force of the Framework Convention on Tobacco Control (FCTC). (44) A lack of political will from state parties, (45) and the ineligibility of non-state actors to participate as potential signatories, (46) contributed to this delay. In fact, the secondary status of non-state actors resulted in backroom campaigns to influence state delegates, (47) and active undermining of the agreement once it was adopted. (48) Today, states themselves circumvent some of the FCTC's requirements, resulting in calls for the Convention's refinement. (49)
Several lessons can be learned from this experience. First, states can be reluctant to negotiate and complete binding Article 19 instruments, thus delaying normative identification and experimentation. Second, as a method for quickly responding to an epidemic, conventions may take many years and require senior political leadership to finalize. Third, participation (or non-participation) of cogent non-state actors can undermine negotiations and implementation. Finally, if a treaty does not work as intended, it can be difficult to refine or rescind later. These concerns are implicated again in relation to WHO's other treaty power.
The WHO's Article 21 Power and Experience
Article 21 allows the WHA to...