Origins in International Health Law

Global health law is built upon the foundations of international health law. International regulation of public health far predates modern health law, with international agreements long viewed by states as vital for collective action to safeguard national economic and security interests.^{Reference Aginam3} Borne of a time when medicine was unable to treat illness, the rapid transmission of disease along trade routes forced the major trading powers to acknowledge that infectious diseases could no longer be construed as solely within the sovereign authority of independent states.^{Reference Fidler4}

This early “sanitary period,” marked by its emphasis on the prevention of epidemic disease, determined the course of international public health regulation through bilateral, regional, and multilateral treaties. The first International Sanitary Conference, held in Paris in 1851, brought together physicians and diplomats to reach consensus among those states having trading interests in the Mediterranean basin.^{Reference Fidler5} These states held a second conference in Paris in 1859, with subsequent conferences held in Constantinople (1866), Vienna (1874), Washington, DC (1881), Rome (1885), Venice (1892), Dresden (1893), Paris (1894), and again in Venice (1897). While international sanitary regulations were crafted at various points in the long march of International Sanitary Conferences, none of these early regulations mustered the widespread national ratification required for adoption.^{Reference Howard-Jones6}

This legislative inertia would not be broken until widespread scientific agreement was reached on disease etiologies and government authorities. By the time of the 1892 Venice Conference, states had reached the necessary consensus on public health practice to draft and ratify a convention to prevent the spread of infectious disease. At the eleventh International Sanitary Conference in Paris, delegates in 1903 drafted the first International Sanitary Regulations of widespread applicability.^{Reference Porter7}

The International Sanitary Regulations set the stage for the International Health Regulations (IHR) that followed and laid the groundwork following World War II for the development of international health law through WHO.

Foundations of Global Governance for Health

The 1946 WHO Constitution would be the first treaty to codify states' expansive post-war mandate for medical care and underlying determinants of health, with WHO's constitutional framework piercing the veil of national sovereignty to respond to public health threats throughout the world. Complemented by a wide range of other United Nations agencies, which would support an expansive array of health determinants under their respective institutional mandates, WHO would have constitutional authority to adopt conventions, regulations, and recommendations on any public health matter.⁸ With this international legal authority to set regulatory norms for public health, WHO assumed responsibility for the IHR, creating a harmonized surveillance and reporting system for infectious disease control and setting both binding state obligations and permissible limitations on individual rights and commercial interests for disease prevention.^{Reference Burci and Vignes9} However, beyond the IHR (last revised in 2005 to address past IHR weaknesses and reflect modern health threats), WHO has rarely exercised its lawmaking powers, with states in the World Health Assembly employing WHO's legal authority to develop only two other treaties: the 1967 Nomenclature Regulations and the 2003 Framework Convention on Tobacco Control.

There are limits to international health law in creating universal legal standards to ameliorate global health inequities. Where once public health was a central focus of international negotiation, the international regulation of public health has waned in international relations, as states have avoided limitations on their sovereign authority.^{Reference Gostin10} Because of the state-centric nature of international law, these international health agreements have been focused on infectious diseases (that threaten security interests), dependent on voluntary agreement (exclusively by sovereign states), and reliant on international consensus (which results in unenforceable norms).^{Reference Hoffman, Røttingen and Frenk11} International health law is seen as inherently incapable of facilitating collective action to address contemporary global health priorities.^{Reference Gostin12} Although international health law remains a necessary area of research and practice, framingmultilateral cooperation to respond to global health security threats, such narrow legal frameworks are incommensurate with the rising health threats of a rapidly globalizing world.^{Reference Magnusson13}

Figure 1. International Sanitary Conference

Figure 2. World Health Assembly

International health law cannot speak to contemporary changes in statehood, international relations, and global public goods for health. With public international law bearing most directly on states, which exercise only limited influence on the global forces that underlie public health, the underlying conditions for health are increasingly shaped by non-state actors, including global institutions, transnational corporations, individual philanthropists, and civil society. As international health law has lost the capacity to influence public health across the world, “global health” has become the dominant terminology to describe the interdependent needs of all peoples, rather than those of particular countries, and the global action necessary to meet these needs across nations, actors, and sectors.^{Reference Brown, Cueto and Fee14} This focus on global health, addressing global determinants of public health, demands an expanded scope and influence of health law to meet the public health needs of an interconnected world, redressing health inequities within and across countries through global health law.^{Reference Moon, Burci and Toebes15}

Figure 3. WHO Director-General Tedros Adhanom Ghebreyesus

Applications to a Globalizing World

Law is crucial to the advancement of global health. Structuring health outcomes through law, legal instruments shape underlying determinants of global health, and these “legal determinants of health” provide a path to safeguard public health in a globalizing world.^{Reference Gostin, Monahan, Kaldor, DeBartolo and Friedman16} Yet legal capacities and government authorities differ greatly across countries, undercutting efforts to assure global equity in health.^{Reference Gostin17} There is a rising need for evidence-based law reforms — in all countries and through global governance.^{Reference Hoffman, Poirier, Van Katwyk, Baral and Sritharan18} Global health law presents a legal framework to structure new efforts by the global community to advance global health.^{Reference Toebes, Burci and Toebes19}

Looking beyond the regulation of states through international treaty law, global health law can apply new sources of soft law to facilitate cooperation across state and non-state actors, frame new institutions of global governance, and realize global health with justice.

Global health law applies “soft” law in global health policy. Where once international health law was the only option for states to address issues of international health, contemporary soft law instruments (including non-binding international resolutions, global strategies, and codes of practice) have proven far easier to negotiate without the need for formal state ratification.^{Reference Wiley20} While lacking the legal enforceability of international law, soft law nevertheless codifies global consensus to set priorities, mobilize constituencies, create incentives, coordinate actors, and facilitate accountability. Without the practical need to develop international law, global health law applies new sources of soft law to bind the state and non-state actors that influence global health.

In an expanding global health governance landscape, safeguarding the public's health requires cooperation among state and non-state actors, and this coordination can be fostered through global health law. International health law continues to govern the actions of national governments, especially where binding obligations on states are necessary to prevent infectious disease through state action;^{Reference Davies, Kamradt-Scott and Rushton21} however, international relations between states does not encompass the entirety of contemporary global health diplomacy.^{Reference Kickbusch, Silberschmidt and Buss22} Shifting from international health law (applicable to states) to global health law (applied to both state and non-state actors), a multi-level proliferation of international, national, nongovernmental, and corporate actors have organized to address a multi-sectoral array of determinants of health.^{Reference Szlezák, Bloom, Jamison, Keusch, Michaud, Moon and Clark23} Global health law can frame this expanding landscape for global health, coordinating the global community of state and non-state actors through institutions of global governance.^{Reference Gostin and Sridhar24}

Global health law shapes the legal foundation of global governance for health. Global governance has become crucial in developing legal norms and implementing those norms through global institutions.^{Reference White, Cogan, Hurd and Johnstone25} Operating under global health law, well governed institutions can be more effective in setting standards, coordinating disparate actors, forming partnerships with key stakeholders, and developing consensus on shared goals for global health.^{Reference Klabbers26} These new instruments of global health law endow global institutions with the tools to negotiate a shared vision of good governance for global health, coordinate with other organizations across sectors, and align national law with global health law to advance public health throughout the world.^{Reference Meier, Gostin, Meier and Gostin27} Facilitating accountability for these global health goals, global health law can provide an institutional basis for developing benchmarks, monitoring progress, and enhancing compliance.²⁸

The application of global health law can thereby establish a normative framework for achieving global health with justice. In creating an imperative for global health institutions to meet an expanding set of global challenges to underlying determinants of health, global health law can codify normative frameworks to realize the human rights that underlie global health.^{Reference Magnusson, Gostin, Meier, Thomas, Magar and Ghebreyesus29} As the limitations of international law have moved global health law beyond the confines of international legal agreements, stakeholders have engaged a diverse array of state and non-state actors through the rise of new policy institutions — institutions developed through their normative foundations in justice.^{Reference Ruger30} Global health law can solidify these vital norms for justice across institutions, providing a foundation for human rights in global health.^{Reference Meier and Gostin31}

Column on Global Health Law

The expansion of health law scholarship to encompass global health law has laid out a legal framework to structure efforts by the global community to advance public health. Through hard and soft law norm-setting, global health law seeks to create new policy institutions to alter behaviors, sustain funding, and coordinate partnerships.³² Global health law extends beyond the scope of discrete health-focused international legal agreements between national governments — addressing an encompassing set of global health determinants through the obligations of state and non-state actors, structuring new forms of global governance reflective of the major global health threats, and framing the normative foundations necessary to realize global health with justice.

This column will seek to capture these contemporary advances in the theory, research, and practice of global health law. Early columns will focus on the role of law in:

• global health security and the International Health Regulations,

• non-communicable diseases and WHO framework conventions,

• universal health coverage under the Sustainable Development Goals,

• immunization law to achieve widespread vaccination and disease prevention,

• zoonotic disease and the need for laws at the intersection of public health, animal health, and environmental health,

• international trade law in structuring commercial determinants of health,

• planetary health and laws to mitigate and adapt to climate change, and

• human rights law as a foundation of global health governance.

This quarterly examination of contemporary advances in global health law will build the research foundation for global health law reforms, analyze evidence-based legal interventions that promote public health, and explore the normative influence of human rights in global health. Through these columns, it will be possible to develop an understanding of legal “best practices in global health,” extending policy surveillance and legal epidemiology globally to understand how law reforms can best succeed in improving public health.