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The Past, Present, and Future of Global Health Law Beyond Crisis

Published online by Cambridge University Press:  15 October 2021

Aeyal Gross
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The COVID-19 pandemic generated wide interest in global health law (GHL). The ease of its spread, and its eruption at a time of massive global travel in a city that is a major transport hub, turned it into an unprecedented event in the post-World War II era.

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Review Essay
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American Journal of International Law , Volume 115 , Issue 4 , October 2021 , pp. 754 - 771
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Copyright © The Author(s), 2021. Published by Cambridge University Press for The American Society of International Law

The COVID-19 pandemic generated wide interest in global health law (GHL). The ease of its spread,Footnote 1 and its eruption at a time of massive global travel in a city that is a major transport hub,Footnote 2 turned it into an unprecedented event in the post-World War II era.

David Fidler described the 2003–2004 SARS outbreak as the first severe infectious disease to emerge into the highly globalized world society of the twenty-first century,Footnote 3 “the world's first ‘post-Westphalian’ pathogen” which represented the “transition of public health governance on infectious diseases from the traditional Westphalian framework to something new.”Footnote 4 Its transmission by respiratory means meant that the epidemiological profile of SARS was well-suited to take advantage of the opportunities for microbial traffic afforded by globalization.Footnote 5 Pathogens have been crossing borders since the beginning of the Westphalian system in the mid-seventeenth century,Footnote 6 and the development of international law on infectious diseases began in the nineteenth century.Footnote 7 But while the pre-SARS era was one of “classical Westphalian public health governance,”Footnote 8 the global reaction to SARS represented the decline of the Westphalian model. Instead, a new governance paradigm developed following the rise of emerging and reemerging infectious diseases,Footnote 9 of which SARS was a central exemplar. In 2005, the World Health Organization (WHO) completed its revision of the International Health Regulations (IHR),Footnote 10 a process that had already been underway but got its final impetus following SARS.Footnote 11 This revision consolidated the new governance paradigm currently in place,Footnote 12 which grants the WHO emergency powers including (as part of the shift away from an intergovernmental model to one according the WHO more governance powers)Footnote 13 authorizing the director-general to declare a Public Health Emergency of International Concern (PHEIC).Footnote 14 Not only does the decision to identify a PHEIC rest with the WHO rather than with its member states but, additionally, the new paradigm enables the WHO to take into account “other reports” of events that might constitute a PHEIC, i.e., not only information from states.Footnote 15

The global spread of disease through the transborder movement of people and goods was not itself new, but the speed, volume, and outreach of travel and trade in the twentieth and twenty-first centuries have increased exponentially and, with them, the spread of pathogenic microbes.Footnote 16 The new governance paradigm that followed proved central to the emergence of GHL with the rise of GHL entangled with the rise of global health governance.

Given its unusual global reach and the scope of the measures taken to contain it, COVID-19 posed an unmatched challenge to this model of governance and to GHL.Footnote 17 The reach of SARS, the first “post-Westphalian epidemic,” was limited: 8,437 cases in twenty-nine countries and 774 deaths, with only China, Hong Kong, Taiwan, Canada, and Singapore having more than one hundred reported cases.Footnote 18 COVID-19 has spread globally and until September 23, 2021, 229,373,963 cases were reported in over two hundred countries and 4,705,111 deaths in all continents.Footnote 19 Its impact has thus been swift and truly global.Footnote 20 AIDS is the only other post-WWII pandemic with such a global outreach, although, because of its transmission mode and its specific social impact, it has been singled out as unique in a phenomenon called “AIDS exceptionalism.”Footnote 21 COVID-19, then, represents a turning point for global health governance and law.

The disciplines of “global health” and “global health law,” which emerged in the early twenty-first century, replaced—or supplemented—the previous frameworks of “international health” or “international health law.” Within legal scholarship, Lawrence Gostin's seminal 2014 book, Global Health Law,Footnote 22 epitomized the emergence of the new field and, probably more than any other work, served to define its borders. A second wave of books published in 2017–2020 developed the field further. The two works discussed in this Review Essay share many themes, but they are also different. Research Handbook on Global Health Law (2018) (Handbook), edited by Gian Luca Burci, adjunct professor at the Graduate Institute of International and Development Studies, Geneva, and Brigit Toebes, professor at the University of Groningen, part of the Elgar series of “Research Handbooks on Globalization and the Law,” continues the canonization of the topic as a field of research. Foundations of Global Health and Human Rights (2020) (Foundations), edited by Lawrence O. Gostin, university professor at Georgetown University, and Benjamin Mason Meier, professor at the University of North Carolina at Chapel Hill, written largely but not exclusively as a teaching tool, frames the discussion of global health within the “health and human rights” paradigm discussed below.Footnote 23 Notwithstanding their differences, both books address similar themes, including the right to health, law's role in governing communicable and non-communicable diseases (NCDs), and the interaction of health law with other areas of international law—trade law, environmental law, and more.

This Review Essay will focus on several major themes discussed in these books concerning GHL and the challenges it faces. Part I will look at the development of GHL as addressed in the books reviewed, questioning the framing of GHL and its relationship to international law (and to the idea of “international health law”) on the one hand, and to the “health and human rights” movement on the other. This Part also considers the key role of human rights law in GHL and the promise, but also the limits, of rights in advancing global health as well as the tension between the values of health equity and competing interests of capital, as embedded in trade law and in other branches of international law. Part II addresses questions less salient to the legal framing of the field: Does the focus on health emergencies from a “crisis” perspective illustrate the need to “decolonize” GHL? Additionally, Part II asks whether, in light of COVID-19, is it necessary to adopt a “One Health” outlook that approaches planetary, animal, and human health as interconnected? The Conclusion will suggest directions for future research in the wake of the books reviewed in this Essay.

I. Global Health Law: Between Fragmentation and Constitutionalization

A. Defining Global Health Law

In his 2014 treatise, Gostin defined GHL as “the study and practice of international law—both hard law . . . and soft instruments . . . that shapes norms, processes, and institutions to attain the highest attainable standard of physical and mental health for the world's population.”Footnote 24 Handbook continues the canonization of the GHL field. In the preface, the editors state that, as they advanced in their work, they became less confident about the conceptualization of GHL as a branch of international law. Eventually, they concluded that GHL is “rather a systematic approach to the normative role of health in international law and an aspiration for those who engage with this field” and “a highly fragmented field with undefined boundaries and parameters.” They still support the GHL project, however, given the crucial significance of protecting health as an important value in international law, to counterbalance potential conflicts with the interests of global trade and economic liberalization.Footnote 25 In a subsequent chapter, Toebes concludes:

Global health law consists of a limited set of binding and non-binding instruments adopted in the framework of the World Health Organization (WHO), in an interaction with both hard and soft law standards recognized in other branches of international law, including international human rights law, international humanitarian law, international environmental law, international trade, property, and investments law.Footnote 26

But why “global health law” rather than “international health law”? GHL is apparently a concept that seeks to transcend its framing as one more branch of international law that interacts—and competes—with branches that might prioritize other interests. Instead, GHL is proposed in the current literature as a replacement of international health law—a normative framework that places health at its center.

Toebes argues that the terminological shift from “international health” to “global health” reflects the consequences of globalization in the health field, including the increasing role and power of multiple actors in global health governance.Footnote 27 This shift is further explored in Handbook by Suerie Moon, who points out that the term “international health”—which had been circulating since the early 1900s in connection with cross-border epidemic control and health needs handled by aid and defense ministries in poorer countries—had often been deeply linked to colonization. The shift from “international” to “global” health began in the 1990s and accelerated at the turn of the millennium, reflecting a concern with the health needs of people on the whole planet rather than in particular nations, and the growing influence of non-state actors. This shift requires focusing on global aspects of health that transcend national borders and on the health threats and opportunities linked to globalization.Footnote 28 Gostin and Meier offer a similar narrative in Foundations, noting that globalizing forces and infectious diseases that could spread further and faster than ever before highlight the inadequacy of domestic responses to globalized health threats and the need for new frameworks for health cooperation.Footnote 29

At first glance, this narrative seems to align with Fidler's description of a post-Westphalian shift in the global governance of disease. In Part II, however, I will question this perception and consider whether GHL has indeed managed to break loose from this colonial legacy and the state-focused nature of “international health.” This narrative also exposes the tension inherent in a view of GHL as including health-specific norms of international law (what we may call WHO law—the WHO Constitution, the IHR, and other norms created within the WHO) as well as interconnected legal regimes.

The anxiety conveyed by Handbook editors about whether GHL is a branch of international law or too fragmented for that purpose replicates the early twenty-first-century anxiety about the fragmentation of international law and whether it still has a center.Footnote 30 Proponents of global health law try to offer it as a field with a “center” in the shape of a normative content: the protection of health as an important value in international law in the face of conflicting interests. In this reading, GHL is an attempt to overcome the fragmentation of the international law affecting health (WHO law, human rights law, trade law, investment protection law, humanitarian law, environmental law, and more), something that “international health law” as just another branch competing for attention and influence could not achieve. In this sense, GHL may be seen as a “localized” version of the constitutionalization project of international law, which emerged as a response to the fragmentation crisis.Footnote 31 Like domestic constitutional systems, constitutionalization in the international legal system seeks coherence and unity as well as hierarchy. The GHL project seems to replicate this attempt in its aim to make the advancement of health or, as shown below, the right to health, its normative unifying objective. But as Moon points out in Handbook, the understanding of GHL as including a normative position about advancing health begs the question of whether laws such as trade agreements with stringent intellectual property rules, which impact global health but do not make affecting or improving health their central objective, should be considered part of this body of law.Footnote 32 The constitutionalization attempt of GHL, then, does not resolve the fragmentation problem.

The rise of GHL may thus indicate a dual break with “international health law”— shifting away from the international health law of the past, which was state-focused and tainted by the colonial legacy,Footnote 33 and endorsing a view that goes beyond WHO law to encompass other branches of international law that also affect health. Building the GHL framework in this manner, however, entails a dual crisis. First, GHL loses its identity as a distinct branch of international law, a source of concern already noted in Handbook; second, it allows branches of international law with values other than health at their core—such as free trade or investor protection—to enter global health law as Trojan horses. The attempt to “constitutionalize” global health law as a field thus leaves open the question: can its organizing principle still be advancing health by relying on the equity-based understanding of the right to health,Footnote 34 or will it incorporate competing capitalist values that put profit-making first?

Toebes discusses the literature that points to human rights law as a bridge that enables values such as health equity and justice to enter the global health law framework.Footnote 35 She points to the right to health's potential as a core, unifying standard in the field, which plays a “foundational role” in global health law,Footnote 36 a theme central to Foundations. Gostin, Sirleaf, and Friedman, for example, emphasize in Foundations that GHL includes not only the scope of global health law but also a normative perspective that seeks to enable all people to realize their right to health.Footnote 37 But can this normative perspective tame the competing values that other branches of international law bring into GHL?

A positive answer to this question seems to rely on the belief that human rights (in a progressive equity-based approach) are intertwined with global health—a central argument of Foundations. Many authors view the interaction of human rights law with health as different from that involving any other branch of international law.Footnote 38 Accordingly, Foundations sees “global health” and “human rights” as complementary and intertwined approaches for the advancement of physical, mental, and social wellbeing throughout the world.Footnote 39

The central role of human rights in global health is my concern in the next Section, focusing on two questions: Can human rights law succeed in bringing more equality despite capitalism? And do rights necessarily bring more health equity or are they potential Trojan horses themselves?

B. Rights as a Double-Edged Sword

Undoubtedly, the story of GHL is closely linked to human rights.Footnote 40 In 1946, the WHO Constitution was the first international treaty to recognize the right to health,Footnote 41 pre-dating the 1948 Universal Declaration of Human Rights,Footnote 42 and the 1966 International Covenant on Economic, Social and Cultural Rights.Footnote 43 But only later, did the “health and human rights” field emerge in the 1990s against the background of the AIDS pandemic.Footnote 44 The increased interest and the growing literature on the right to healthFootnote 45 were followed by extended discussions about the limits and usefulness of the right and about the litigation seeking to enforce it.Footnote 46 Tobin and Barrett point to the challenges posed by the privatization of health services leading to increased inequality in healthcare access and to the state's duty to ensure that the delivery of services in a privatized system should be consistent with the effective enjoyment of the right to health.Footnote 47 But does the right to health consistently play this role? While the focus on health equity in the UN human rights bodies and elsewhere is an important framework,Footnote 48 the right's nature as a double-edged swordFootnote 49 as well as its limitsFootnote 50 warrants discussion.

For example, in their discussion in Foundations of how courts address health rights—a widely researched topic in recent yearsFootnote 51—Collen Flood and Bryan Thomas consider the ongoing debate on whether litigation of individual rights to health distorts government priorities in health spending by diverting health funding to expensive medicines for wealthier patients who have the resources to litigate.Footnote 52 Flood and Thomas argue that courts can facilitate accountability for the progressive realization of health-related human rights, using the South African Constitutional Court's Treatment Action Campaign Footnote 53 case as a prime example.Footnote 54 The other edge of the sword, however, is illustrated by decisions such as the Canadian Supreme Court's Chaoulli case.Footnote 55 Treatment Action Campaign played a significant role in expanding access to HIV prevention treatment in South Africa.Footnote 56 By contrast, the ruling in Chaoulli—which, declared the Quebec law prohibiting private health insurance in order to prevent a two-tiered health system, as unconstitutional—is viewed as undermining health equity.Footnote 57 While the authors cite Chaoulli to illustrate the danger of entrusting unelected courts with the power to resolve complex policy questions,Footnote 58 it can also be seen as exemplifying the double-edged nature of rights that, in this case, are used to justify privatization in a way that undermines health equity.Footnote 59 This discussion warrants exploring the limits of focusing on the judicial model of health rights. For instance, Paul Farmer points to a need for rethinking health and human rights without pinning all hopes on legal battles, shifting instead to a paradigm of political solidarity and, pragmatically, to the provision of services for those in need. In his words, rather than more litigation, what is needed is the real transfer of money, food, and drugs.Footnote 60

The double-edged nature of rights is also addressed by Brigit Toebes and David Patterson. They show that corporations use rights to attack policy measures dealing with NCDs by seeking to thwart the regulation of tobacco, alcohol, food, and beverages on the grounds that it interferes with personal autonomy and commercial speech.Footnote 61 Specifically, the tobacco industry invoked rights of free speech and intellectual property to attack the regulation of tobacco advertising.Footnote 62 Most of these attempts failed. But the discussion shows that the view of “global health” and “human rights” as allied in the effort to achieve health equity may have to confront rights as a Trojan horse when the advancement of these goals is at stake. Intellectual property rights, which are key players in the “tobacco wars,” are probably the category of rights waging the most famous battle with health advancement. I turn to them next.

C. Health Equity or Capital?

Although intellectual property rights may not be “human rights” in the classic sense, the conflict between the protection of patented medicines and vaccines on the one hand, and the protection of access to health care on the other, points to rights as potentially expanding health equity as well as possibly undermining it.

Wu and Wu in Foundations Footnote 63 and Abbot in Handbook Footnote 64 deal with the inclusion of medicines in the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), restricting the option of governments to protect public health by limiting their ability to ensure affordable access to medicines.Footnote 65 The controversies and the litigation concerning access to AIDS medications led to the Doha Declaration,Footnote 66 which confirmed that TRIPS should be interpreted and implemented in a manner supportive of states’ right to protect public health and promote access to medications in the context of public health emergencies.Footnote 67 Various mechanisms, however, such as so-called “TRIPS Plus agreements,” insist on intellectual property rules for access to medicines.Footnote 68

The issue of access to medicines came to the fore with the AIDS pandemic, but it was COVID-19 that called attention to vaccine access. The ongoing debate about a possible waiver of patents for COVID-19 vaccines illustrates the conflict between different branches of law as well as the “internal” conflict within GHL between its normative core of promoting health and interacting legal regimes. Recognition of the need to incorporate health considerations and relax the protection of intellectual property may arguably represent a success for GHL's health promotion project. This success, however, is limited. The partial successes regarding AIDS medications and possibly regarding COVID-19 vaccines are crisis-driven exceptions to rules that, generally, commodify access to health. It was international law that ensured global protection to patents for medicines and vaccines within TRIPS.Footnote 69 The Biden administration's support for a waiver on patent rights in COVID-19 vaccinesFootnote 70 was hailed as a huge step, though it is unclear at the time of this writing whether the waiver will be adopted.Footnote 71 Not enforcing patents, however, will not suffice; it is equally critical to democratize production by pushing companies to share publicly funded technologies.Footnote 72 Meanwhile, international law facilitates the persisting vaccine inequality between rich and poor countries.Footnote 73

Both Handbook and Foundations acknowledge the tensions between promoting health equity and the intellectual property rules in trade law, as well as between health equity and other branches of law that protect capital (such as investment protection laws),Footnote 74 which may be in tension with efforts to stem the transnational flow of unhealthy food and harmful products. Efforts to lower barriers to international trade may clash with the pursuit of the highest attainable health standards.Footnote 75 The tension between health equity and intellectual property is reinforced by a gap between the WTO regime of binding norms and the “soft law” typical of most WHO law. The WTO regime contains (at least until the recent crisis that paralyzed the work of the WTO Appellate Body) a powerful dispute settlement mechanism.Footnote 76 By contrast, most of WHO law consists of non-binding norms, and even when it takes the form of a binding instrument such as the IHR, it lacks a mechanism of enforcement.Footnote 77 A state of affairs whereby IHR is a major exception of “hard law” within WHO law (alongside the WHO Constitution and the Framework Convention on Tobacco Control (FCTC) discussed below)Footnote 78 points to the bias toward health crises and emergencies within the WHO law component of GHL, an issue to which I turn next.

II. GHL as a Discipline of Crisis and the Need for Decolonization and “One Health” Approaches

A. The Crisis Model: Coming Full Circle?

On January 30, 2020, the director-general of the WHO declared the global outbreak of the novel coronavirus a PHEIC.Footnote 79 This, as noted, was the sixth such declaration since the 2005 IHR went into force.

As Fidler shows, the international approach to infectious disease began to take shape in the mid-nineteenth century as European countries struggled to cope with successive cholera epidemics. The first international sanitary conference, convened in 1851, reflected the conclusion of major European states that the spread of infectious diseases could no longer be handled at the national level and demanded international cooperation.Footnote 80 The motivation driving this approach was to protect Europe and North America from “Asiatic diseases” spreading from Asia and the Middle East.Footnote 81 This regime was streamlined and universalized with the establishment of the WHO,Footnote 82 first in the 1951 international sanitary regulations (renamed as International Health Regulations in 1969) that replaced the previous treaties and led eventually to the 2005 IHR.Footnote 83

One reason for the demise of the older regime was that developed countries made significant strides in reducing the threat of infectious disease to their populations and economies following the availability of clean water, sanitation services, and new medical technologies such as vaccines.Footnote 84 The concern in developed countries shifted to NCDs.Footnote 85 Since the 1980s, however, emerging infectious diseases such as HIV/AIDS and later SARS and COVID-19, and reemerging old ones (e.g. tuberculosis and malaria)Footnote 86 required a new international legal regime suited to these developments.Footnote 87 The 2005 IHR embodied a new strategy of global health security and a new approach to global health governance.Footnote 88

Although GHL discussions focused at length on the 2005 IHR and on infectious diseases, especially following COVID-19, this is just one of its many concerns. Indeed, both Handbook and Foundations dedicate one chapter each to international law and communicable diseases as one of many other topics within GHL. Stefania Negri's Handbook chapter and the one in Foundations by John Harrington and Sharifah Sekalala look at the interaction of the IHR with the health-security and human rights paradigm.Footnote 89 Negri points out how the emergence of the “global health security” approach apparent in the IHR is linked to the reconceptualization of both “security” and “threat to international security.” Security has expanded to include “human security” and “threat to international peace and security” has evolved to include non-military sources of threat.Footnote 90 But this process is not without risks, some of which are addressed in the parallel chapter in Foundations. Sekalala and Harrington address not only the positive elements of securitizing communicable disease but also the possible negative consequences for human rights and global justice, such as threats to privacy through contact tracing, to liberty through quarantine and isolation, to freedom of movement through travel restrictions, and even to actual access to health care when hospitals shut down. They further point out the speedy nature of security-led responses, which are subject to what they call the “tyranny of the urgent,” a concept that implies the prioritization of rapidly spreading diseases like COVID-19 over endemic conditions like malaria, which impose a much greater burden on the population's health but are less likely to travel.Footnote 91

These approaches, which are state-centered, end up favoring nations of the Global North, which have the power and resources to shape infrastructure and policy in countries of the Global South to protect themselves against rapidly spreading (rather than endemic) diseases, reproducing domination patterns typical of European colonialism.Footnote 92 The broader question this raises is how global is GHL. As was evident during COVID-19, the purported post-Westphalian global health governance often favored unilateralism, nationalism, and populist self-interest over global solidary.Footnote 93 The Westphalian concept of sovereignty, apparent for example in the closing of borders and in vaccine nationalism, seems to have returned with a vengeance.

In his description of “two regimes of global health,” Andrew Lakoff contrasts the “Global Health Security” regime encapsulated in the IHR with that of “Humanitarian Biomedicine.” The former engages with emerging infectious diseases that threaten to circulate globally, uses global disease surveillance, and is grounded on the ethics of self-protection. The latter engages with neglected diseases that afflict poor countries, deals with access to essential medicines, and rests its ethical stance on our common humanity. Lakoff's dichotomy sharpens the paradox of purportedly post-Westphalian GHL—which is supposed to be “global” and different from obsolete, colonial “international health” and understand the transborder nature of disease rather than focus on transmission solely in one direction—but which, in fact, seems to replicate much of the state-focused, colonially tainted international health scheme. Vaccine nationalism, vaccine hoarding, and vaccine diplomacy,Footnote 94 together with other nationalist and populist reactions to COVID-19 threatening democracy, attest to this.Footnote 95 The risks that Sekalaka and Harrington emphasize when pointing out the “tyranny of the urgent” become apparent when much concern was expressed about whether measures to combat COVID-19 would be potentially disruptive to the campaign against AIDS, malaria, and tuberculosis (TB).Footnote 96 Research shows that, for example, the provision of TB health services (diagnosis, care, and prevention) was severely disarrayed by COVID-19, partly due to restrictions on freedom of movement and the reallocation of resources.Footnote 97 It has been shown that COVID-19 has been causing significant setback in the fight against HIV, TB, and malaria.Footnote 98 Other data shows that the diversion of resources to COVID-19, as well as closure of clinics or people not seeking healthcare because of lockdowns and fear of transmission, lead to a major backsliding of childhood vaccinations around the world against diseases such as measles, polio, and other vaccine-preventable diseases, especially in middle-income countries.Footnote 99 Additionally, funding for NCDs as a share of foreign aid declined during COVID-19.Footnote 100 These developments illustrate how “Global Health Security” may come at the expense of “Humanitarian Biomedicine,” when new diseases reaching the Global North, such as COVID-19, are viewed as “urgent,” whereas endemic diseases like TB or malaria continue to affect the Global South.

Whose security, then, is included in the “Global Health Security” paradigm?Footnote 101 If the focus on “crisis” comes at the expense of chronic and underlying problems, including the overall status of health systems,Footnote 102 we may have come full circle: the focus on international governance is again on the protection of the Global North from emerging infectious diseases coming from the Global South, replicating the colonial legacy of international health supposedly left behind with the shift to “global health.”

The focus on “health emergencies” in the IHR seemingly makes GHL a “discipline of crisis,” to borrow the term used by Hilary Charlesworth to describe international law in general.Footnote 103 COVID-19 has often been described as a crisis, and the subsequent rise of interest in GHL epitomizes Charlesworth's claim that “[i]international lawyers revel in a good crisis.”Footnote 104 As Charlesworth shows, the obsession of international law with crises leads us to concentrate on single events or series of events, often missing the larger picture.Footnote 105 This promotes a narrow agenda for international law,Footnote 106 leads to an impoverished set of substantive principles in it,Footnote 107 and creates silence on issues outside the lens of crises.Footnote 108 Charlesworth suggests instead that international law should refocus on the structural justice issues underpinning everyday life,Footnote 109 a significant lesson for GHL given the concentration of WHO hard law on crisis and especially on events defined as PHEIC.

Attention is due not only to the current focus on “crisis” but also to the biases affecting the decision as to what is a crisis, especially given the paucity of norms within GHL touching on endemic and NCDs as well as on the underlying determinants of health.Footnote 110 When infectious diseases endemic to the Global South are at stake, there are no specific norms and duties in international law other than general obligations that can be derived from the right to health, though soft law still plays a significant role in dealing with diseases that are not part of the PHEIC paradigm. Sharifa Sekalala has powerfully argued that, in the context of the AIDS pandemic, a soft law approach has been more effective in easing the supply of anti-retroviral medicines by enabling states to reach agreements on access to them in quicker and simpler ways, a preferable strategy when dealing with public health pandemics.Footnote 111 Regarding AIDS and TB, Sekalala has also shown how soft law was significant in battling these diseases as, for example, in its use by the WHO to expand access to medicines essential for treating TB and malaria by expanding the resources devoted to global campaigns focusing on them.Footnote 112 Indeed, the WHO declared TB a “global emergency” already in 1993,Footnote 113 although it is not an emergency under the PHEIC regime.Footnote 114 This analysis points to the importance of soft law as reflected in measures adopted regarding non-PHEIC diseases. Nevertheless, the current focus on duties surrounding new and emerging pandemics draws attention, resources, and efforts to PHEIC-declared diseases. Although diseases like TB, malaria, and AIDS each kill hundreds of thousands in Africa every year,Footnote 115 they are not “new,” do not travel easily, and are not defined as PHEIC in the IHR, meaning they do not constitute “extraordinary events” posing a public health risk to other countries through their international spread.Footnote 116 NCDs are not in the PHEIC category either and, except for the FCTC that is part of WHO hard law,Footnote 117 all other issues of NCDs are addressed only through non-bindingFootnote 118 global action plans, strategies, and recommendations.Footnote 119 The increase of NCDs is viewed as a result of globalization,Footnote 120 and although some have described their rise as a pandemic or crisis,Footnote 121 within GHL they are not viewed as “emergencies.” This approach, as noted, replicates the colonial concern with disease spreading from the Global South to the Global North.

At the same time as “hard” GHL focuses on health emergencies involving emerging infectious diseases without including NCDs or endemic diseases affecting mostly the Global South, the latter is suffering from a double burden of communicable and NCDsFootnote 122 together with the neglect of background conditions of health and its social determinants. International lawyers should listen to Madhukar Pai's warning against the “Covidization of research,” a phrase that sums up the risks of centering on COVID-19, possibly at the expense of addressing a range of issues required for good health, such as social determinants and NCDs.Footnote 123

Both Handbook and Foundations are excellent resources for engaging with global health without focusing only on crises. Despite the bias discernible within GHL, both books deserve credit for dedicating significant chapters to NCDsFootnote 124 and to topics such as obesity, chronic disease, and mental health,Footnote 125 which avoid the crisis focus. This is an important feature, especially given the developments surrounding COVID-19 and the emphasis on emergencies in the international law literature addressing health. Much of the attention accorded to GHL in response to COVID-19 takes the form of suggestions for reform by international law scholars. Yet, these suggestions center mostly on improving the handling of crises like COVID-19,Footnote 126 ignoring background issues and endemic diseases that transcend the crisis angle. The current discussion within the WHO of a “pandemic treaty” aiming at better solutions to “health emergencies” also seems set on this course.Footnote 127

B. Decolonize Global Health Law?

Activists and scholars in the global health arena have recently underscored the need to “decolonize global health,”Footnote 128 but discussions about the continuing legacy of colonialism are still largely absent from GHL discourse. Lakoff's critique of the global health security regime represented by IHR, discussed above, contrasts the regime with humanitarian medicine, pointing out that the global health security model is about self-protection rather than common humanity. Yet, he does not go further to consider how both global health regimes he describes continue to replicate part of the colonial legacy. Humanitarian bio-medicine indeed focuses on diseases endemic to the Global South, but its operation through foundations and public-private partnerships based mostlyFootnote 129 in the Global North is often viewed as replicating North-South power relationships.Footnote 130 Inequalities exposed and reinforced by COVID-19, including the unequal spread of COVID-19 immunization as well as the bias in the definition of a health “emergency” in hard GHL, illustrate the intersection of political economy and the colonial legacy, underscoring the need to decolonize GHL and the role of law in perpetuating the structures of economic and colonial/racial domination. Currently, as reflected in most chapters of Foundations and Handbook, GHL lags behind in these debates.Footnote 131

C. One Health?

Another development gaining momentum in the global health literature—one that GHL is still largely silent about—is the call to adopt a “One Health” perspective. The “One Health” approach focuses on the relationship between planetary health, animal health, and human health, especially given that most emerging infections affecting humans are zoonotic diseases that “jump species” from other animals to people. The report issued in July 2020 by UN Environment Program (UNEP) together with other bodies, “Preventing the Next Pandemic,” pointed out that most reactions to COVID-19 do not address the root causes of the pandemic, ignoring insights that could help to prevent future disease outbreaks.Footnote 132 The report highlights human-mediated factors behind the emergence of zoonotic diseases and the policy responses required to reduce the risk of future zoonotic pandemics.Footnote 133 It confirms and builds upon the “One Health” approach advocated by the FAO-OIE-WHO Tripartite Alliance.Footnote 134 In the international law literature, Anne Peters has recently suggested recognizing “One Health” as a principle of international law, covering not only human-animal-environmental interactions but also as demanding North-South solidarity in the prevention and treatment of infectious diseases.Footnote 135

III. Conclusion

The COVID-19 pandemic reignited interest in GHL. From a niche concern of experts, GHL has become a topic of great interest to international law generalists as well. Fortunately, both Research Handbook on Global Health Law, which was published before the pandemic, and Foundations of Global Health and Human Rights, which appeared a few months into it, provide readers superb and comprehensive studies on GHL and its origins, as well as on current topics and challenges. Unquestionably, both books will remain important resources for all those interested in these topics for years to come.

Yet, just as GHL came into being with the emergence of the broader concept of “global health” and replaced the tainted notion of “international health,” a crucial concern now is to address the failures of global health and, accordingly, of GHL. How to overcome the gap between the health equity aspirations of human rights law and the advantages that other branches of law grant to capital? How to overcome the colonial legacy of “international health,” with its focus of on diseases affecting the Global North, and “decolonize” global health as well as global health law? What hard law duties are still owed, not only regarding what is perceived as a “crisis,” an “emergency,” or a threat to “security” in the Global North but also regarding endemic diseases and NCDs in the Global South? How to expand understanding of the connections between the environment and health into a “One Health” approach to planetary, animal, and human health? What legal duties should be developed to help prevent and not merely respond to the next pandemic? These are some of the major challenges that GHL now faces.

Footnotes

*

Professor of international law and constitutional law at Tel Aviv University's Faculty of Law. The author is grateful to The Israel National Institute for Health Policy Research for its support of this research. Further funding was provided by the Taubenschlag Institute of Criminal Law at Tel-Aviv University. I am grateful to Pedro Villarel for his comments on an earlier draft of this Essay. Excellent research assistance was provided by Tamar Luster, Aner Shofty, Miri Tabenkin, and Shani Tsur. Finally, thanks to Batya Stein for her excellent editing work.

References

1 See Richard Horton, The COVID-19 Catastrophe: What's Gone Wrong and How to Stop It Happening Again 9 (2d ed. 2020).

2 Id. at 50.

3 David Fidler, SARS, Governance and the Globalization of Disease 6 (2004).

4 Id. at 8.

5 Id. at 16.

6 Id. at 26.

7 Id. at 26–29; See generally David Fidler, International Law and Infectious Diseases (1999).

8 Fidler, supra note 3, at 35.

9 Id. at 41.

10 WHO, International Health Regulations (2d ed. 2005) [hereinafter IHR].

11 Fidler, David, From International Sanitary Conventions to Global Health Security: The New International Health Regulations, 4 Chinese J. Int'l. L. 325, 355–56 (2005)Google Scholar.

12 Fidler, supra note 3, at 186.

13 See Christian Kreuder-Sonnen, Emergency Powers of International Organizations: Between Normalization and Containment 152–70 (2019). On the exercise of governance powers by the WHO during COVID-19, see Armin von Bogdandy & Pedro A. Villarreal, Critical Features of International Authority in the Pandemic Response: The WHO in the COVID-19 Crisis, Human Rights and the Changing World Order (MPIL Research Paper Series No. 2020–18, 2020).

14 IHR, supra note 10, Art. 12 (1).

15 Id. Art. 9.

16 Fidler, supra note 3, at 45.

17 The COVID-19 pandemic was the sixth case of a PHEIC declared under the 2005 IHR regulations. Gian Luca Burci, The Legal Response to Pandemics, 11 J. Int'l & Humanitarian Legal Stud. 204 (2020).

18 WHO, Summary of Probable SARS Cases with Onset of Illness from 1 November 2002 to 31 July 2003, at https://www.who.int/publications/m/item/summary-of-probable-sars-cases-with-onset-of-illness-from-1-november-2002-to-31-july-2003.

19 WHO Coronavirus (COVID-19) Dashboard, at https://covid19.who.int/table (about ten countries do not have any cases).

20 Horton, supra note 1, at 54.

21 On “AIDS exceptionalism,” see Thérèse Murphy, AIDS, in International Law's Objects 106 (Jessie Hohmann & Daniel Joyce eds., 2018).

22 Lawrence O. Gostin, Global Health Law (2014).

23 Additional books published in this period include a previous book by Gostin and Meier, Human Rights in Global Health: Rights-Based Governance for a Globalizing World (Benjamin Mason Meier & Lawrence O. Gostin eds., 2018), and two other books specifically focusing on infectious diseases and international law: The Governance of Disease Outbreaks: International Health Law: Lessons from the Ebola Crisis and Beyond (Leonie Cierck, Pedro A. Villarreal & A. Katrarina Weilert eds., 2017) and Infectious Diseases in the New Millennium: Legal and Ethical Challenges (Mark Eccleston-Turner & Ian Brassington eds., 2020).

24 Gostin, supra note 22, at 59.

25 Research Handbook on Global Health Law xiii (Gian Luca Burci & Brigit Toebes eds., 2018). See also Brigit Toebes, Global Health Law: Defining the Field, in Handbook, at 3. The “extreme fragmentation of the protection and promotion of human health among diverse legal regimes” is also addressed in the concluding chapter. See Gian Luca Burci, Global Health Law: Present and Future, in Handbook. On the “normative” rather than merely “descriptive” nature of GHL, see also Gostin, supra note 22, at 60.

26 Toebes, supra note 25, at 2–3.

27 Id. at 5.

28 Suerie Moon, Global Health Law and Governance: Concepts, Tools, Actors and Powers, in Handbook, supra note 25, at 25–27. Moon relies on a few texts in this discussion, especially Julio Frenk, Octavio Gómez-Dantés & Suerie Moon, From Sovereignty to Solidarity: A Renewed Concept of Global Health for an Era of Complex Interdependence, 383 Lancet 94 (2014); Theodore M. Brown, Marcos Cueto & Elizabeth Fee, The World Health Organization and the Transition From “International” to “Global” Public Health, 96 Am. J. Pub. Health 62 (2006). On the relationship between “international health,” “public health,” and “global health,” see also Jeffrey P. Koplan, et al., Towards A Common Definition of Global Health, 373 Lancet 1993 (2009). For a study of various definitions of global health, see Melissa Salm, Mahima Ali, Mairead Minihane & Patricia Conard, Defining Global Health: Findings from a Systematic Review and Thematic Analysis of the Literature, 6 BMJ Glob. Health (2021).

29 Benjamin Mason Meier & Lawrence O. Gostin, Introduction: Global Health and Human Rights, in Foundations of Global Health and Human Rights 4 (Lawrence O. Gostin & Benjamin Mason Meier eds., 2020). For a discussion of this shift, see also Handbook, supra note 25. See also Benjamin Mason Meier, Margherita Marianna Cina & Lawrence O. Gostin, Advancing Human Rights Through Global Health Governance, in Foundations, at 200.

30 See Martti Koskenniemi, The Fate of Public International Law: Between Technique and Politics, 70 Modern L. Rev. 1 (2007); Martti Koskenniemi, International Law Commission Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, UN DOC A/CN.4/L.682 (Apr. 13, 2006).

31 Kosekenniemi, The Fate, supra note 30.

32 Moon, supra note 28, at 29.

33 See Jeremy Greene, Marguerite Thorp Basilico, Heidi Kim & Paul Farmer, Colonial Medicine and Its Legacies, in Reimagining Global Health 33 (Paul Farmer, Jim Yong Kim, Arthur Kleinman & Matthew Basilico eds., 2013). See also Randall Packard, A History of Global Health (2016); Anne-Emanuelle Birn, Yorgan Pillay & Timothy H. Holtz, Textbook on Global Health Law 1–20 (4th ed. 2017).

34 See Coleen Flood & Aeyal Gross, Conclusion: Contexts for the Promise and Peril of the Right to Health, in The Right to Health at the Public/Private Divide: A Global Comparative Study 451, 452–54 (Colleen Flood & Aeyal Gross eds., 2017).

35 Toebes, supra note 25, at 6–7. Similarly, in her contribution to Handbook, Murphy points to GHL as a distinctive normative orientation rather than merely a description. Thérèse Murphy, Hardwired Human Rights: A Health and Human Rights Perspective on Global Health Law, in Handbook, supra note 25, at 88.

36 Toebes, supra note 25, at 13–16.

37 Lawrence O. Gostin, Matiangai V. S. Sirleaf & Eric Friedman, Global Health Law: Legal Foundations for Social Justice in Public Health, in Foundations, supra note 29, at 59.

38 Gostin, for example, in his 2014 treatise, lists “the human right to health” as one of three major sources of global health law, alongside what he calls international health law (WHO law) and interconnecting legal regimes that have an impact on health. Gostin, supra note 22, at 11–12.

39 Lawrence O. Gostin & Benjamin Mason Meier, Introduction: Global Health & Human Rights, in Foundations, supra note 29, at 1–5.

40 See Gostin, Sirleaf & Friedman, supra note 37.

41 Constitution of the World Health Organization, pmbl., July 22, 1946.

42 Universal Declaration of Human Rights, Art. 25 (1), Dec. 10, 1948, UN Doc. A/RES/217(III).

43 International Covenant on Economic, Social and Cultural Rights, Art. 12, Dec. 16, 1966, 993 UNTS 3. In Handbook, Murphy addresses the relationship between “health and human rights” and GHL. Murphy, supra note 35, at 82.

44 Gostin and Meier trace the initial steps of the field to the mutual links between health and human rights in the early years of the HIV/AIDS response. Gostin & Meier, supra note 39, at 10. The issue is explored in detail in both of the books reviewed in this Essay. Joseph J. Amon & Eric A. Friedman, Human Rights Advocacy in Global Health, in Foundations, supra note 29, at 133; Sharifah Sekalala & John Harrington, Communicable Diseases, Health Security, and Human Rights: From AIDS to Ebola, in Foundations, supra note 29, at 222–24; Daniel Tarantola & Sofia Gruskin, The Recognition and Evolution of HIV and Human Rights Interface, 1981–2017, in Handbook, supra note 25; Murphy, supra note 35, at 83–87.

45 For the background to the reemergence of the right to health since the 1990s and the reasons leading to it, see Colleen Flood & Aeyal Gross, Introduction: Marrying Human Rights and Health Care Systems, in The Right to Health, supra note 34, at 1, 2–4.

46 See, e.g., Litigating Health Rights: Can Courts Bring More Justice to Health? (Alicia E. Yamin & Siri Gloppen eds., 2011); Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World (Varun Gauri & Daniel M. Brinks eds., 2008); The Right to Health, supra note 34; Colleen M. Flood & Aeyal Gross, Litigating the Right to Health: What Can We Learn from a Comparative Law and Health Care Systems Approach, 16 Health & Hum. Rts. 62 (2014).

47 John Tobin & Damon Barret, The Right to Health and Health-Related Human Rights, in Foundations, supra note 29, at 79–80.

48 John Tobin, Still Getting to Know You: Global Health Law and the Right to Health, in Handbook, supra note 25, at 81.

49 Morton Horowitz, Rights, 23 Harv. C.R-C.L. L. Rev. 393 (1988).

50 For a discussion see Murphy, supra note 35, at 100.

51 See the sources in note 46 supra.

52 Colleen Flood & Bryan Thomas, Justiciability of Human Rights to Health, in Foundations, supra note 29, at 188. See also Octavio Luiz Ferraz, Health as A Human Right: The Politics and Judicialisation of Health in Brazil (2021).

53 Minister of Health and Others v. Treatment Action Campaign and Others, [2002] (5) SA 721 (CC) (S. Afr.).

54 Flood & Thomas, supra note 52, at 178.

55 Chaoulli v. Quebec (AG), [2005] SCR 791 (Can.).

56 See William Forbath, Cultural Transformation, Deep Institutional Reform, and ESR Practice; South Africa's Treatment Action Campaign, in Stones of Hope: How African Activists Reclaim Human Rights to Challenge Global Poverty 51 (Lucie White & Jeremy Perelman eds., 2011)

57 Flood & Thomas, supra note 52, at 185–86.

58 Id. at 186.

59 See Aeyal Gross, Is There a Human Right to Private Health Care, 41 J. L. Med. & Eth. 138 (2013).

60 Paul Farmer, Pathologies of Power: Health, Human Rights, and the New War on the Poor, ch. 9, 213 (2003); see also Paul Farmer & Nicole Gastineau, Rethinking Health and Human Rights: Time for a Paradigm Shift, 30 J. L. Med. & Eth. 655 (2002). On the limits of a legalized rights rhetoric in this context, see also Lucie White, “If You Don't Pay, You Die”: On Death and Desire in the Postcolony, in Exploring Social Rights: Between Theory and Practice 72 (Daphne Barak-Erez & Aeyal Gross eds., 2007).

61 Brigit Toebes & David Patterson, Human Rights and Non-communicable Diseases: Controlling Tobacco and Promoting Healthy Diets, in Foundations, supra note 29, at 251.

62 Id.

63 Chung-Feng Wu & Chien-Huei Wu, International Trade, Public Health, and Human Rights, in Foundations, supra note 29, at 353–54.

64 Frederick M. Abbot, Health and Intellectual Property Rights, in Handbook, supra note 25.

65 See Hogler Hestermeyer, Human Rights and the WTO – The Case of Patents and Access to Medicines (2008).

66 Doha Ministerial Declaration on the TRIPS Agreement and Public Health, adopted Nov. 14, 2001, WT/Min (01)/DEC/2.

67 Wu & Wu, supra note 63, at 361–62.

68 Id. at 363–68; Benn McGrady, Health and International Trade Law, in Handbook, supra note 25, at 109; Abbot, supra note 64, at 156. See also Ellen ‘t Hoen, Private Patents and Public Health: Changing Intellectual Property Rules for Access to Medicines (2016); Susan Sell, TRIPS Was Never Enough: Vertical Forum Shifting, FTAS, ACTA and TTP, 18 J. Intell. Prop. L. 448 (2011)

69 See Hestermeyer, supra note 65.

70 Statement from Amb. Katherine Tai on the COVID-19 TRIPS Waiver (2021).

71 See WTO Press Release, Members Approach Text-Based Discussions for an Urgent IP Response to COVID-19 (June 9, 2021), at https://www.wto.org/english/news_e/news21_e/trip_09jun21_e.htm.

72 Matthew Kavanagh (@MMKavanagh), Twitter (May 6, 2021, 3:21 PM), at https://twitter.com/MMKavanagh/status/1390280527815585795. See also Matthew Kavanagh, Mara Pillinger, Renu Singh & Katherine Ginsach, To Democratize Vaccine Access, Democratize Production, For. Pol'y (Mar. 1, 2021), at https://foreignpolicy.com/2021/03/01/to-democratize-vaccine-access-democratize-production; Michael Hirsh, Can Biden's Vaccine Patent Waiver End the Pandemic, For. Pol'y (May 6, 2021), at https://foreignpolicy.com/2021/05/06/biden-vaccine-waiver-coronavirus-intellectual-property-rights; US Supports the COVID-19 TRIPS Waiver for Vaccines; Now, Technology Sharing Must Become a Reality, Med. L. & Pol'y (May 6 2021), at https://medicineslawandpolicy.org/2021/05/us-supports-the-covid-19-trips-waiver-for-vaccines-now-technology-sharing-must-become-a-reality.

73 See Pablo Guiterrez & Ashley Kirk, Vaccine Inequality: How Rich Countries Cut Covid Deaths as Poorer Left Behind, Guardian (June 28, 2021), at https://www.theguardian.com/world/ng-interactive/2021/jun/28/vaccine-inequality-how-rich-countries-cut-covid-deaths-as-poorer-fall-behind?CMP=Share_iOSApp_Other; Sharifah Sekalala, et al., Decolonizing Human Rights: How Intellectual Property Laws Result in Unequal Access to the COVID-19 Vaccine, 6 BMJ Glob. Health (July 12, 2021); Amaka Vanni, On Intellectual Property Rights, Access to Medicines and Vaccine Imperialism, TWAILR (Mar. 23, 2021), at https://twailr.com/on-intellectual-property-rights-access-to-medicines-and-vaccine-imperialism.

74 Chiara Giorgetti, however, argues that investment protection law has accommodated the necessary requirements for protecting public health. Tribunals have accepted the notion that provisions intended for the protection of public health must find place in state regulation systems even if they affect foreign investment. Chiara Giorgetti, Health and International Investment Law, in Handbook, supra note 25, at 196.

75 Wu & Wu, supra note 63, at 359–60. See also Toebes & Patterson, supra note 61, at 257–58. See Suzanne Zhou & Jonathan Liberman, The Global Tobacco Epidemic and the WHO Framework Convention on Tobacco Control: The Contributions of the WHO's First Convention to Global Health Law and Governance, in Handbook, supra note 25, at 375–383; Ben McGrady, Health and the International Trade Law, in Handbook, supra note 25, at 105–06, 133–34; Giorgetti, supra note 74, at 183–85, 195–96; Amandine Garde, Global Health Law and Non-communicable Disease Prevention: Maximizing Opportunities by Understanding Constraints, in Handbook, supra note 25, at 389.

76 See Aditya Rathore & Ashuton Bajpai, The WTO Appellate Body Crisis: How We Got Here and What Lies Ahead, Jurist (Apr. 14, 2020), at https://www.jurist.org/commentary/2020/04/rathore-bajpai-wto-appellate-body-crisis.

77 Wu & Wu, supra note 63, at 357.

78 Additionally, the Regulations Regarding Nomenclature is also part of WHO hard law. World General Assembly, WHO Regulations No. 1 Regarding Nomenclature (Including the Compilation and Publication of Statistics) with Respect to Disease and Causes of Death (1948), at https://apps.who.int/iris/handle/10665/97656.

79 WHO Director-General's Statement on IHR Emergency Committee on Novel Coronavirus (2019-nCoV) (Jan. 30, 2020), at https://www.who.int/director-general/speeches/detail/who-director-general-s-statement-on-ihr-emergency-committee-on-novel-coronavirus-(2019-ncov).

80 Fidler, supra note 11, at 329.

81 Id. at 331–32; see also Fidler, supra note 3, at 31.

82 Fidler, supra note 11, at 332–33.

83 Fidler supra note 7, at 58–61.

84 Fidler, supra note 11, at 334–35.

85 Id. at 337.

86 Id. at 338.

87 Id. at 339; Fidler, supra note 3, at 42–43.

88 Fidler, supra note 11, at 343.

89 Stefania Negri, Communicable Disease Control, in Handbook, supra note 25, at 268–69, 292.

90 Id. at 292.

91 Sekalala & Harrington, supra note 44, at 233–34.

92 Id. at 234.

93 Horton, supra note 1, at 79; Caitlin Williams, Jocelyn Getgen Kestenbaum & Benjamin Mason Meier, Populist Nationalism Threatens Health and Human Rights in the COVID-19 Response, 110 Am. J. Pub. Health 1766 (2020).

94 See Lukasz Gruszczynski & Chien-huei Wu, Between the High Ideals and Reality: Managing COVID-19 Vaccine Nationalism, Eur. J. Risk Regulation 1–9 (2021); Armin von Bogdandy & Pedro Villarreal, The Role of International Law in Vaccinating Against COVID-19: Appraising the COVAX Initiative (MPIL Research Paper No. 2020–46, 2020). For an argument for “vaccine internationalism,” see Brian L.H. Wong, et al., Toward “Vaccine Internationalism”: The Need for an Equitable and Coordinated Global Vaccination Approach to Effectively Combat COVID-19, 66 Int'l J. Pub. Health 1 (2021).

95 Stephen Thomson & Eric C. Ip, COVID-19 Emergency Measures and the Impending Authoritarian Pandemic, 7 J. L. & Biosciences 1 (2020).

96 See, e.g., AIDS, Malaria and Tuberculosis are Surging, 584 Nature 169 (2020); Editorial, Tuberculosis and Malaria in the Age of COVID-19, 21 Lancet – Infectious Diseases 1 (2021); The Global Fund, Mitigating the Impact of COVID-19 on Countries Affected by HIV, Tuberculosis and Malaria (2020), available at https://www.theglobalfund.org/media/9819/covid19_mitigatingimpact_report_en.pdf; Alexandra B. Hogan, et al., Potential Impact of the COVID-19 Pandemic on HIV, Tuberculosis and Malaria in Low-Income and Middle-Income Countries: A Modelling Study, 8 Lancet – Glob. Health e1132 (2020).

97 Finn McQuaid, A. Vassall, T. Cohen, K. Fiekert & R.G. White, The Impact of COVID-19 on TB: A Review of the Data, 25 Int'l J. Tuberculosis & Lung Disease 436, 439 (2021).

98 The Global Fund, Results Report (2021), at https://www.theglobalfund.org/en/results.

99 UNICEF Press Release, COVID-10 Pandemic Leads to Major Backsliding on Childhood Vaccinations, New WHO, UNICEF Data Shows (July 15, 2021), at https://www.unicef.org/press-releases/covid-19-pandemic-leads-major-backsliding-childhood-vaccinations-new-who-unicef-data.

100 See Thomas J. Bollyky, Serena Tohme & Samantha Kiernan, Noncommunicable Diseases Kill Slowly in Normal Times and Quickly in COVID-19 Times, Council For. Rel. (Sept. 10, 2021), at https://www.cfr.org/article/noncommunicable-diseases-kill-slowly-normal-times-and-quickly-covid-19-times.

101 Additionally, as the authors of a textbook on global health noted, global health governance is concerned with disease outbreaks that could interrupt commerce, manufacturing, tourism, and other powerful economic sectors, pointing out how the protection of the world economic order of neoliberal capitalism is a prime driver of geopolitical interests in global health. See Birn, Pillay & Holtz, supra note 33, at xxxvi.

102 Id. at xxvi.

103 Hilary Charlesworth, International Law: A Discipline of Crisis, 65 Modern L. Rev. 377 (2002).

104 Id. at 377. For a recent example, see Agora, The International Legal Order and the Global Pandemic, 114 AJIL (2020).

105 Charlesworth, supra note 103, at 384.

106 Id. at 386–87.

107 Id. at 390–391.

108 Id. at 388–89.

109 Id. at 391.

110 On the social determinants of health see, for example, WHO Commission on Social Determinants of Health Final Report, Closing the Gap in a Generation: Health Equity through Action on the Social Determinants of Health (2008).

111 See Sharifah Sekalala, Soft Law and Global Health Problems: Lessons from Responses to HIV/AIDS, Malaria and Tuberculosis (2018).

112 Id. at 216. However, Sekalala also notes that, in soft law programs, uneasiness surrounds the overreliance on unelected donors unaccountable for key decisions, and the danger of developing countries pinning long-term hopes for access to medicines on unsustainable arrangements that ignore the underlying problems caused by the TRIPS system in measures taken in regard to non-PHEIC diseases. Id. at 256. On the advantages and disadvantages of “soft law” and the relationship between “soft” and “hard” law, see Gian Luca Burci, Global Health Law: Present and Future, in Handbook, supra note 25, at 490–91, 520–27.

113 WHO Global Tuberculosis Program, TB: A Global Emergency, WHO Report on the TB Epidemic, WHO/TB/94.177 (1994).

114 See Ruvandhi R. Nathavirtharana & Jon S. Friedland, A Tale of Two Global Emergencies: Tuberculosis Control Effort Can Learn from the Ebola Outbreak, 46 Eur. Respiratory J. 293 (2015).

115 On TB: WHO – Regional Office for Africa, Tuberculosis (TB), at https://www.afro.who.int/health-topics/tuberculosis-tb; on Malaria: WHO, Malaria, at https://www.who.int/news-room/fact-sheets/detail/malaria; on AIDS: WHO – Regional Office for Africa, HIV/AIDS, at https://www.afro.who.int/health-topics/hivaids.

116 IHR, supra note 10, Art. 1 (emphasis added); Art. 12; Annex 2, Decision Instrument for the Assessment and Notification of Events That May Constitute a Public Health Emergency of International Concern.

117 Toebes & Patterson, supra note 61, at 258.

118 Id. at 255.

119 Garde, supra note 75.

120 Toebes & Patterson, supra note 61, at 244.

121 Gostin, supra note 22, at 383–94.

122 In their chapters in Foundations, Brigit Toebes and David Patterson note that NCDs are now responsible for over 70% of deaths worldwide, with 85% of premature deaths due to NCDs now occurring in low-to-middle-income countries. Toebes & Patterson, supra note 61, at 243. See also Gostin, supra note 22, at 43–46.

123 Madhukar Pai, Covidization of Research: What Are the Risks, 26 Nature Med. 1159 (2020).

124 Toebes & Patterson, supra note 61; Zhou and Liberman, supra note 75; Garde, supra note 75; Oliver Lewis & Soumitra Pathare, Chronic Illness: Disability and Mental Health, in Foundations, supra note 29.

125 On obesity, see Katharina O Cathoaoir, Metter Hartlev & Celine Brassat Olsen, Global Health Law and Obesity: Towards a Complementary Approach of Public Health and Human Rights Law, in Handbook, supra note 25, at 427; on chronic illness, see Oliver Lewis & Soumitra Pathare, Chronic Illness: Disability and Mental Health, in Foundations, supra note 29, at 285.

126 See, e.g., Alvarez, Jose, The WHO in the Age of the Coronavirus, 114 AJIL 578 (2020)CrossRefGoogle Scholar; Gostin, Lawrence O., Habibi, Roojin & Meier, Benjamin Mason, Has Global Health Law Risen to Meet the COVID-19 Challenge? Revisiting the International Health Regulations to Prepare for Future Challenges, 48 J. L. Med. & Eth. 376 (2020)Google Scholar; Burci, Gian Luca, The Legal Response to Pandemics: The Strengths and Weaknesses of the International Health Regulations, 11 J. Int'l Hum. Legal Stud. 204 (2020)Google Scholar; Benvenisti, Eyal, The WHO – Destined to Fail? Political Cooperation and the COVID-19 Pandemic, 114 AJIL 588 (2020)CrossRefGoogle Scholar.

127 Special Session of the World Health Assembly to Consider Developing a WHO Convention, Agreement, or Other International Instrument on Pandemic Preparedness and Response, WHO Seventy Fourth World Health Assembly, Agenda Item 17.3, A74/A/Conf./7 25 (May 2021), available at https://apps.who.int/gb/ebwha/pdf_files/WHA74/A74_ACONF7-en.pdf. The call for a pandemic treaty was made by the president of the European Council and endorsed by twenty-five heads of state the director of the WHO. See WHO Press Release, COVID-19 Shows Why United Action Is Needed for More Robust International Health Architecture (Mar. 31, 2021), at https://www.who.int/news-room/commentaries/detail/op-ed---covid-19-shows-why-united-action-is-needed-for-more-robust-international-health-architecture; Haik Nikogosian & Ilonka Kikbusch, A Pandemic Treaty: Where We Are Now that the Leaders Have Spoken, BMJ Opinion (Apr. 26, 2021), at https://blogs.bmj.com/bmj/2021/04/26/a-pandemic-treaty-where-are-we-now-that-the-leaders-have-spoken; Duff, Jonathan, et al. , A Global Public Health Convention for the 21st Century, 6 Lancet Pub. Health e428 (2021)Google ScholarPubMed. For an exception that, in the context of discussing a pandemic treaty, addresses the need to decolonize the prevailing paradigm of global health security, see Sakiko Fukuda-Parr, Paulo Buss & Alicia Ely Yamin, Pandemic Treaty Needs to Start with Rethinking Paradigm of Global Health Security, BMJ Glob. Health (June 3, 2021), at https://gh.bmj.com/content/6/6/e006392. On the lack of definition of a “pandemic” in international law and the relationship between “pandemic” and PHEIC, see Pedro Villarreal, Pandemic: Building a Legal Concept for the Future (MPIL Research Paper No. 2021–12, 2021).

128 See, e.g., Action to Decolonize Global Health, at https://decolonise.health; Duke Decolonizing Global Health Working Group, at https://sites.duke.edu/dukedgh; Harvard Chan Student Committee for the Decolonization of Public Health, at https://www.hsph.harvard.edu/decolonizing-global-health-so.

129 According to Abimbola and Pai, decolonizing global health requires removing all the forms of supremacy currently prevalent in the operation of global health organizations—who runs them, where they are located, who holds the purse strings, who sets the agenda, and whose views, history, and knowledge are taken seriously. See Seye Abimbola & Madhukhar Pai, Will Global Health Survive Its Decolonization, 396 Lancet 1627 (2020). Buyum, et al. describe how the current global health ecosystem upholds the supremacy of the white savior and the need for more equitable representation in global health leadership positions. On the implications of private actors’ increasing role in public-private partnerships, see Birn, Pillay & Holtz, supra note 33, at xxxvi.

130 See Alicia Ely Yamin & Paul Farmer, Against Nihilism: Transformative Human Rights Praxis for the Future of Global Health, OpenGlobalRights (June 7, 2021), at https://www.openglobalrights.org/against-nihilism-transformative-human-rights-praxis-for-the-future-of-global-health/?lang=English.

131 See, e.g., Buyum, Ali Murad, Cordelia-Kenney, , Koris, Andrea, Mkumba, Laura & Raveendran, Yadurshini, Decolonizing Global Health, If Not Now, When?, 5 BMJ Glob. Health e003394 (2020)CrossRefGoogle Scholar; Abimbola & Pai, supra note 129; Hirsch, Lioba A, Is It Possible to Decolonize Global Health Institutions, 397 Lancet 189 (2021)CrossRefGoogle Scholar. For a recent exception within legal analysis, see Sharifah Sekalala, et al., supra note 73. Additionally, the United Nations Special Rapporteur on the Right to Health, Dr. Tlaleng Mofokeng, announced in 2021 that her main approach during her tenure will be to examine the understanding of coloniality and racism, their impact on the right to health, and how to move forward to substantive equality. See Tlaleng Mofokeng, Special Rapporteur on the Right to Physical and Mental Health, Strategic Priorities of Work, UN Doc. A/HRC/47/28 (Apr. 7, 2021).

132 Additionally, in November 2020 the UNEP joined the tripartite in forming a One Health High-Level Expert Council. UNEP Press Release, UNEP Joins Three International Organizations in Expert Panel to Improve One Health (Nov. 12, 2020), at https://www.unep.org/news-and-stories/story/unep-joins-three-international-organizations-expert-panel-improve-one-health.

133 See UNEP Press Release, Preventing the Next Pandemic: Zoonotic Diseases and How to Break the Chain of Transmission (July 6, 2020), at https://www.unep.org/resources/report/preventing-future-zoonotic-disease-outbreaks-protecting-environment-animals-and; see also Preventing Pandemics, at https://www.preventingfuturepandemics.org.

134 The One Health approach is discussed in the chapter by Sekala & Harrington, supra note 44, at 237. See also a brief discussion of this cooperation in Burci, in Handbook, supra note 25, at 498.

135 Anne Peters, COVID-19 as a Catalyst for the (R-)Constitutionalisation of International Law: One Health – One Welfare (MPIL Research Paper No. 2020–44, 2020). See also Peters, Anne, COVID-19 Shows the Need for a Global Animal Law, 11 Derecho Animal 86 (2020)Google Scholar.