# Presentation: 505513

## 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.”*

## 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

- CDC Public Health Law Program

## 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

- CDC Public Health Law Program

## Public Health, Governance, and Globalization

- Globalization

- State

- Global
- Governance

- International
- Governance

- National
- Governance

- CDC Public Health Law Program

## Public Health Strategies in the Global Context

- State A

- State B

**Horizontal strategy**: Cooperation between States A
- and B to minimize exportation and importation of
- health threats; represents an “at the border” focus—how
- governments interact on the transmission of health
- risks

- CDC Public Health Law Program

## Public Health Strategies in the Global Context

- State A

- State B

**Vertical strategy**: Reduce disease prevalence in State A;
- represents a “beyond the border” focus—how a government
- protects the population health of its people within its own
- territory

- CDC Public Health Law Program

## Public Health, International Law, and Governance Frameworks

| Governance Framework | Primary Strategic Emphasis | Function of International Law | Public Health Examples |
| --- | --- | --- | --- |
| National Governance | Vertical public health strategies | None | National sanitary reforms, 19th century |
| International Governance | Horizontal public health strategies | Provides architecture for horizontal public health strategies | International Health Regulations |
| Global Governance | Vertical public health strategies | Provides norms informing vertical public health strategies | Global Fund to Fight AIDS, Tuberculosis and Malaria |

- CDC Public Health Law Program

## Basics of International Law

- Sources of international law
- Treaties—written agreements among states
- Customary international law—unwritten rules built through state practice
- General principles of law—rules 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])

- CDC Public Health Law Program

## 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

- CDC Public Health Law Program

## 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”

- CDC Public Health Law Program

## Horizontal International Legal Regimes: Infectious Disease Control, 1851-1951

- State A

- State B

- Classical Regime

-  Organizational
- Regime

- Trade Regime

- CDC Public Health Law Program

## 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

- CDC Public Health Law Program

## 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)

- CDC Public Health Law Program

## 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

- CDC Public Health Law Program

## 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)

- CDC Public Health Law Program

## Vertical International Legal Regimes and Public Health

- State

- Soft Law
- Regime

- Environmental
- Regime

- Human Rights
- Regime

- CDC Public Health Law Program

## 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)

- CDC Public Health Law Program

## 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)

- CDC Public Health Law Program

## Global Governance Example:The Access Regime 

- Access
- Regime

- Doha Declaration on TRIPS and Public Health

- R&D on new drugs for
- infectious diseases (e.g.,
- MMV, GATB)

- Delivery of drugs and
- vaccines to improve
- access (e.g., GAVI,
- Global Fund)

- Litigation  for access to drugs in
- national court systems (e.g., South Africa)

- CDC Public Health Law Program

## Global Governance and Transgovernmentalism

- Another governance development identified in international legal literature is “transgovernmentalism”—networks 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

- CDC Public Health Law Program

## 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?

- CDC Public Health Law Program

## 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

- CDC Public Health Law Program

## Public Health Law and Globalization, cont’d 

- 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)

- CDC Public Health Law Program

## Public Health Law and Globalization, cont’d

- 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
- CDC’s programmatic involvement in, and knowledge of, the developing public-private partnerships
- CDC and transgovernmentalism’s promise and problems in legal and governance areas

- CDC Public Health Law Program