Emerging Trends in International Law and Their Implications for Domestic and Global Public Health Practice

1
Emerging Trends in International Law and Their
Implications for Domestic and Global Public
Health Practice

• David P. Fidler
• Indiana University School of Law
• May 8, 2002

"The findings and conclusions in this
presentation have not been formally disseminated
by the Centers for Disease Control and Prevention
and should not be construed to represent any
agency determination or policy.
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Objectives

• To analyze how globalization is reshaping the
  role of international law in contemporary public
  health governance
• To begin to explore ways that the CDC can respond
  to, and take advantage of, these trends in
  international law and public health governance

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Health Challenges from Globalization

• Growing literature on the challenges that
  globalization poses to public health
• Infectious diseases
• Increased speed and volume of international trade
  and travel promotes cross-border transmission of
  pathogenic microbes
• Increased cross-border microbial traffic reveals
  weaknesses of domestic public health systems
• States cannot deal with these and other
  challenges unilaterally international
  cooperation is needed
• Mechanisms for international cooperation, such as
  international law, become crucial to public
  health responses to the problems and
  opportunities provided by globalization

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Public Health, Governance, and Globalization
Global Governance
Globalization
International Governance
State
National Governance
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Public Health Strategies in the Global Context
Horizontal strategy Cooperation between States
A and B to minimize exportation and importation
of health threats represents an at the border
focushow governments interact on the
transmission of health risks
State A
State B
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Public Health Strategies in the Global Context
Vertical strategy Reduce disease prevalence in
State A represents a beyond the border
focushow a government protects the population
health of its people within its own territory
State A
State B
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Public Health, International Law, and Governance
Frameworks
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Basics of International Law

• Sources of international law
• Treatieswritten agreements among states
• Customary international lawunwritten rules built
  through state practice
• General principles of lawrules of domestic law
  found widely in the international system
• Subjects of international law (holders of rights
  and duties)
• States
• International organizations (state membership)
• Individuals (international human rights law
  rights international humanitarian law duties)

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Public Health and the Basics of International Law

• Public health and the sources of international
  law
• Treaties have been most important source for many
  reasons
• Customary international law and general
  principles of law produce rules that are too
  general
• Treaties lend themselves to science-based policy
• Treaties contain, however, a strong image of
  sovereignty because their rules only bind states
  that expressly consent to be bound

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Public Health and the Basics of International Law

• Public health and the subjects of international
  law
• States have been the dominant subjects
• States are the primary international actors
• Public health is a public good, meaning it is a
  governmental responsibility
• International health organizations have played an
  important role in global public health
• Individuals become right holders in public
  health through international humanitarian law and
  international human rights law, especially the
  human right to health

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Horizontal International Legal Regimes
Infectious Disease Control, 1851-1951
State A
State B
Classical Regime
Organizational Regime
Trade Regime
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Globalization, Governance, and International Law
Infectious Disease Control, 1951-2002

• Horizontal international legal regimes
• See a shift in focus from the classical to the
  trade regime
• This shift actually makes public health more
  important in international law
• New vertical international legal regimes
• Begin to emerge and influence global public
  health
• New global governance mechanisms develop to
  support vertical public health strategies

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Shift from the Classical to the Trade Regime

• Classical regime, represented by the
  International Health Regulations, failed to
  achieve maximum protection from international
  disease spread with minimum interference with
  world traffic
• Failure of the classical regime officially noted
  in WHO at the same time as WTO was created, and
  WTO has become the central horizontal regime for
  international law on public health
• TRIPS (patent protection for pharmaceuticals)
• SPS Agreement (food safety)

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IHR Revision Rejuvenation or Death of the
Classical Regime?

• In 1995, WHO decided to revise the IHR because
  they were inadequate to deal with the infectious
  disease challenges posed by globalization
• Maximum protection against international disease
  spread from binding legal notification duties on
  outbreaks horizontal strategy to reliance on
  new information technologies (e.g., Global
  Outbreak Alert and Response Network (GOARN)) to
  facilitate effective interventions within
  affected countries vertical strategy
• Minimum interference with world traffic
  attention now centered on WTO not WHO with
  respect to goods

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Good or Bad for Public Health?WTO, Public
Health, and International Law

• In global debates about public health, WTO is
  often demonized as a threat to public health
  (e.g., TRIPS battles)
• From an international legal perspective, the WTO
  is one of the best things to happen to public
  health
• Synergy between trade and organizational regimes
  (e.g., food safety, Asbestos Case)
• WTO is more prominent forum for public health
  advocacy (e.g., TRIPS debate)

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Vertical International Legal Regimes and Public
Health
Environmental Regime
Human Rights Regime
Soft Law Regime
State
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Vertical International Legal Regimes and Public
Health

• Soft-Law Regime WHO-developed norms, principles,
  and guidelines on public health policies and
  practices (e.g., DOTS)
• Environmental Regime development of
  international environmental law in the post-World
  War II period attention on reducing both
  transboundary and internal problems
• Human Rights Regime human rights movement comes
  to public health via HIV/AIDS pandemic
  protection of civil and political rights (e.g.,
  non-discrimination) and fulfillment of human
  right to health (e.g., access to essential drugs)

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Development of Global Governance Mechanisms

• Global governance states, intergovernmental
  organizations, and non-state actors (e.g., NGOs,
  MNCs) involved
• Infectious disease examples
• Public-private partnerships, such as the Global
  Fund to Fight AIDS, Tuberculosis, and Malaria
• Infectious disease surveillance fueled by
  participation of non-governmental actors (e.g.,
  ProMED-mail Internet media)
• Global governance mechanisms share strategic
  objectives
• Producing global public goods (e.g.,
  information, technical advice, new health
  technologies)
• Improving delivery of these goods mainly within
  developing countries (i.e., vertical rather than
  horizontal goal)
• Global governance mechanisms do not directly use
  international law (e.g., public-private
  partnerships are not created by treaties)

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Global Governance ExampleThe Access Regime
Doha Declaration on TRIPS and Public Health
Access Regime
Delivery of drugs and vaccines to improve access
(e.g., GAVI, Global Fund)
RD on new drugs for infectious diseases
(e.g., MMV, GATB)
Litigation for access to drugs in national court
systems (e.g., South Africa)
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Global Governance and Transgovernmentalism

• Another governance development identified in
  international legal literature is
  transgovernmentalismnetworks of national
  government actors/regulators and private sector
  enterprises constructing common approaches to
  globalization challenges
• Banking regulation
• Competition law
• Securities regulation
• Goal of these networks is often harmonized rules
  that regulators take home and implement in
  national law formal agreements binding under
  international law are often not used, and
  diplomacy through formal international
  organizations are often intentionally avoided

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Public Health and Transgovernmentalism

• Networks of technical expertise among public
  health officials and agencies exist and operate
• Within international organizations (e.g., PAHO,
  WHO)
• Under regional (e.g., APEC) or bilateral (e.g.,
  Gore-Mbeki Commission) diplomatic platforms
• Transgovernmentalism affecting public health
• International Conference on Harmonization (ICH)
• Ottawa Plan on Public Health and National
  Security
• Transgovernmentalism on public health law and
  governance?

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Public Health Law and Globalization

• Globalize the scope of the study of public
  health law
• National law
• International aspects of U.S. law on public
  health
• Public health law in other countries (e.g.,
  comparative public health law)
• International law
• Understand the shift from the classical to the
  trade regime
• Study the impact of other international legal
  efforts to liberalize economic intercourse (e.g.,
  FDI, trade in services)
• Global governance
• Role of new public-private partnerships in public
  health
• Utility and problems of transgovernmentalism for
  public health

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Public Health Law and Globalization, contd

• National law
• International aspects of U.S. law on public
  health (e.g., highly mobile populations and
  products)
• Public health law in other countries as it may
  affect or inform CDC programmatic activities
• Russian law on TB control
• Creation of Field Epidemiological Training
  Programs (FETPs)
• Establishment of International Emerging
  Infections Programs (IEIP)
• Important public health law developments or
  reforms in other countries (e.g., Japanese
  infectious disease law how Britain deals with
  highly mobile populations)

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Public Health Law and Globalization, contd

• International law
• Programmatic impact of trade regime and its
  continued expansion (e.g., Free Trade Agreement
  of the Americas)
• Voice of CDC/DHSS in U.S. trade policy CMH
  health is central to economic development
• Voice of CDC/DHSS in U.S. international health
  diplomacy (e.g., revision of the IHR and
  negotiation of FCTC)
• Exploring potential for regional and bilateral
  uses of international law (e.g., border issues
  with Mexico)
• Global governance
• CDCs programmatic involvement in, and knowledge
  of, the developing public-private partnerships
• CDC and transgovernmentalisms promise and
  problems in legal and governance areas