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

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Title: 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.
2
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

3
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

4
Public Health, Governance, and Globalization
Global Governance
Globalization
International Governance
State
National Governance
5
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
6
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
7
Public Health, International Law, and Governance
Frameworks
8
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)

9
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

10
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

11
Horizontal International Legal Regimes
Infectious Disease Control, 1851-1951
State A
State B
Classical Regime
Organizational Regime
Trade Regime
12
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

13
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)

14
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

15
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)

16
Vertical International Legal Regimes and Public
Health
Environmental Regime
Human Rights Regime
Soft Law Regime
State
17
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)

18
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)

19
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)
20
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

21
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?

22
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

23
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)

24
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
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