Global Health Law: Conceptions and Challenges
by James G. Hodge, Jr., Johns Hopkins Bloomberg School of Public Health, Baltimore, MD and Jessica P. O'Connell, United States Court of Federal Claims, Washington, DC
Protecting global health has become a dominant mission for multifarious public and private sector entities in a variety of disciplines, including public health, medicine, ethics, human rights, economics, and law. The notion of protecting global health has existed for decades, enveloped in terms like "international health" or "transnational health." However, academics, lawyers, executives, and policymakers have more recently conceptualized programs, laws, and policies to respond to its significant, modern challenges. Schools of public health at several prominent universities, including Johns Hopkins, Michigan, and Emory, have established global health centers, programs, or degrees since 2000. Schools of law, medicine, and others at New York University have combined to offer a Masters in Global Public Health. In 2007, Georgetown University Law Center introduced its new Masters of Law Program in Global Health Law. Government agencies such as the U.S. Department of Health and Human Services and the Centers for Disease Control and Prevention and non-governmental organizations such as the World Health Organization, the World Bank, and the World Trade Organization have similarly introduced or redefined global health efforts in the modern era. Institutions like the Gates Foundation and private sector companies, including Pepsico and General Electric, have also directed efforts at global health problems.
In a 2001 editorial, authors at the federal Department of Health and Human Services (DHHS) surmised that U.S. public health leaders are increasingly "shifting toward a paradigm of global health." Yet, as they and others have questioned, "what do we actually mean by global health?" The concept of global health has a seemingly limitless scope. Assuming it is capable of definition, what then is global health law? Furthermore, what are the roles of laws and global health lawyers in protecting the health of populations across international boundaries? In this article, we briefly assess the historical and modern meanings of global health. From this analysis flows our suggested definition of global health law, which we use to examine (1) the role of law in protecting global health and (2) the essential knowledge and skills for health lawyers seeking to address global challenges.
II. Defining Global Health
While the widespread use of the phrase "global health" is relatively modern, the principles and theories underlying this concept have developed over centuries. The fundamental premise that public and private entities must come together to address international threats to population health is nothing new. Collaboration among nations regarding major public health concerns may have first become widespread in nineteenth century Europe following the Napoleonic Wars. Global health efforts at that time focused on the control of highly infectious diseases, the spread of which became more prevalent with cross-border travel during times of war. Disease transmissions during the first and second world wars -- notably including the 1918/1919 "Spanish flu" pandemic -- further accentuated the need for an international approach to disease control.
In 1948, in response to increasing concerns worldwide about the spread of infectious disease (particularly cholera), United Nations member states formed the World Health Organization (WHO), which set as its goal "the attainment by all peoples of the highest possible level of health." This same year, WHO issued its first World Health Regulation to clarify a process for the international classification of diseases. In 1966, the American Public Health Association (APHA), along with 31 other national public health associations, formed the World Federation of Public Health Associations (WFPHA) to address issues of international public health. Over time, public health organizations, governments of developed nations, and transnational corporations began to devote more efforts and resources to international health concerns. They recognized that advances in trade, technology, and changing travel patterns would result in greater interaction among populations that can lead to public health issues requiring international cooperation.
In the United States, the phrase "international health" was historically used to refer to public health issues with global implications. The term "global health" became more commonly used in the late 1980s to signify a more inclusive approach, one that considered developed nations like the United States as part of the international health spectrum. The meanings of global health were based on broad interpretations of what constitutes "health," defined by WHO as "not only the absence of infirmity and disease but also a state of physical, mental, and social well-being." Emerging understandings of health as a human right supported fundamental levels of health services for all persons. Increasingly, protecting individual and populational health included (1) controlling communicable and chronic diseases and (2) providing support for the determinants of physical and mental health (e.g., provision of basic necessities like food, water, and adequate housing; avoidance of unwarranted discrimination; respect for individual and group rights). Based on these and other trends, in 1997 the Institute of Medicine proffered its definition of global health as ". . . health problems, issues, and concerns that transcend national boundaries, may be influenced by circumstances or experiences in other countries, and are best addressed by cooperative actions and solutions." Though broad, this definition encapsulates many of the modern, well-recognized challenges of global health such as HIV/AIDS, tuberculosis, cancer, heart disease, obesity, tobacco-related illnesses, poverty, and malnourishment.
Reconceptualizing health statuses across populations illuminated the modern objective of global health to improve health inequities worldwide. Disparities in health outcomes among nations are significant and increasing in recent years, especially in the poorest countries. Simply put, the poor are getting sicker while the wealthy are getting healthier. Many believe that the primary aim of global health should be to ease the significant burden of disease borne by a small proportion of the world's population. While national governments' involvement in global health initiatives may be primarily driven by their desire to protect the health of their populations, motivation also derives from ethical and human rights concerns about the injustice of health disparities and the potential economic impact of failing to addressing these inequities. Promoting global health, it seems, is not only good for the health of populations, but also good business, and critical to maintaining national security. Accordingly, the objectives of global health initiatives are twofold: (1) to resolve public health problems and concerns that cross national boundaries, and (2) to implement strategies and infrastructure, both nationally and internationally, to improve long-term health outcomes among vulnerable populations worldwide.
III. Role of Law in Addressing Global Health
Practitioners and academics in multiple disciplines, including ethics, economics, security and politics as well as public health and medicine, have essential roles in protecting global health. Laws and corresponding policies, however, also play a significant part in addressing global health objectives. They can facilitate governmental or private sector involvement, authorize specific actions (or inactions) of persons and entities, assign responsibilities among international partners, and secure essential funding. Regrettably, laws can also impede global health goals. Reflected in this observation is the need to clearly define global health law to sustain the role of law in achieving global health improvements.
Borrowing from the Institute of Medicine's broad conception of global health discussed above, we define global health law as:
the study, practice, and application of international (e.g., treaties, agreements, conventions) and domestic (e.g., constitutional norms, statutes, regulations) laws to ameliorate health challenges that (1) transcend national boundaries, and (2) may only be addressed through transnational cooperation, action, and solutions.
Admittedly, our definition suffers from weaknesses and shortcomings. It does not prescribe how to use law to improve global health outcomes, offers no prioritization of specific legal issues that should be addressed, admits no tradeoffs in using the law to protect global health, and fails to address the limits of law to resolve international health concerns. Critics may suggest that our conception of global health law is not so much a definition of the term as it is a restatement. Our objective, however, is not to define the mission of global health law (which may be indeterminable by any single account). Rather, we seek to provide a contextual definition that supports the use of law, in its varied forms, as a tool for positive interventions.
Underlying our conception of global health law are additional observations that help define roles for law and legal practitioners. These include:
- Recognition of the need for international legal instruments to improve global health outcomes. International laws, such as treaties, conventions, or human rights norms, may not fully rise to the same level of enforcement as national laws or policies within a sovereign state, but they offer recognized legal instruments to stimulate cooperation among nations. Their role in setting expectations, providing structure, and assigning responsibility for global health initiatives is undeniable.
- Appreciation for national or subnational laws to create a legal environment that is conducive to protecting global health. Although domestic laws may be limited by jurisdictional boundaries, their purpose in regulating public health, health care, or other services can either support or stymie global initiatives. Consider how domestic laws that are inconsistent with global health laws, like the 2005 International Health Regulations (IHRs), may interfere with communal health objectives. A national public health reporting act may, for example, fail to explicitly authorize reporting of communicable conditions addressed in the IHRs. Reforming domestic laws to further international health initiatives is a function of global health legal practitioners.
- Focus on the positive use of law as a tool for global health improvements. To the extent that laws stand as a barrier to global cooperation to improve population health, they should be reconsidered, and potentially reformed. This is a key objective of global health legal practitioners – to assess and interpret the law, understand its limits and potential negative impacts on global health outcomes, and make changes as needed to improve global health. Competing interests in regulating trade or commerce, protecting national sovereignty, or abating security threats must be appropriately balanced, but not used as guises for depriving children and other vulnerable populations of basic health needs.
- Acknowledge the need for international cooperation. Another essential facet of global health law is the aspirational element of international collaboration. Developed and developing nations may continue on the path of engaging in relatively minor transnational efforts to address global health threats while largely focusing on the health statuses of their own populations. Global health theorists and practitioners, however, reject this course and seek collaborative, international efforts to resolve significant injustices and health disparities, particularly where such inequities impact vulnerable populations. To the extent that law, any law, whether international or domestic, may principally affect these inequities, it falls within the domain of global health law.
IV. Essential Knowledge and Skills for Global Health Law Practitioners
Global health challenges in the twenty-first century are immense. Improving the health status of societies' most needy populations is daunting. Entrenched issues of longstanding disease and poverty coupled with public and political apathy, insufficient and inefficiently used resources, crumbling public health and health care infrastructures, and constant states of war and violence across the globe do not lend to easy victories on the global health front. To effectively make changes in the global health arena, legal practitioners must not only appreciate the role of law in improving international health outcomes, but also be prepared with essential knowledge and skills.
Viewing Global Health Dilemmas Through Multiple Lenses. Global health issues are, by their nature, complex. Given their complexity, global health law practitioners must be skilled in assessing these issues through the multiple lenses of law, ethics, policy, and human rights. Each of these different paradigms offers vital lessons that can directly inform and impact the scope of laws to help solve global health challenges. For example, principles of human rights or ethics may provide significant guidance for public health practitioners attempting to abate a global health threat. Laws should support, not contradict, norms of ethics or human rights. Internationally, however, there are proliferate examples where laws run counter to global health objectives. For example, concerning the global HIV/AIDS epidemic, the laws of some countries permit invidious discrimination against persons with HIV or AIDS, despite obvious breaches of human rights or ethical principles. While no single practitioner may be fully capable of generating critical analyses on global health challenges through each of these lenses, understanding the available analyses and findings is indispensable to global health law in practice.
Understanding the "Health" Aspects of Global Health Issues. At the core of most global health challenges are difficult issues of public health. While the science of public health may be relatively well-known internationally, its practice varies extensively among developed and developing nations. Variations in public health practice among nations (owing to a lack of resources, poor health infrastructure, or divergent politics) may largely account for some health disparities in global health. Global health legal practitioners need to be able to understand the public health dimensions of the problems they confront. Some may seek to couple their law degrees with master's or doctoral degrees in public health. Others may accrue public health knowledge through collaboration with public health or medical experts and practitioners in the field. Acquiring this knowledge through any route will assist legal practitioners to develop, draft, interpret, or enforce laws that make public health achievements possible.
Assessing the Role of Health Governance. As Professor Scott Burris has noted, "[t]he governance of health is changing." Once restricted to governmental health agencies and organizations like WHO, global health issues have increasingly become the domain of entities whose predominant foci are trade, security, economics, business, or defense. As mentioned earlier, large foundations and companies, notably including pharmaceuticals and multinational health providers, are major players in the global health arena. Public/private partnerships addressing global health issues proliferate internationally. These and other developments have skewed the global health agenda, and largely discounted the traditional role of national or local health governance structures. Effective health governance structures are essential for law to have a constructive role, but scholars like Professor David Fidler see significant shortcomings to existing governance proposals. Professor Lawrence O. Gostin has proposed a new Framework Convention on Global Health to help elucidate issues of health governance. Importantly, global health law practitioners must increasingly assess how issues of health governance are tied to effective implementation of law.
Using a Full Slate of Legal Interventions. As the challenges of global health are diverse, so must be the legal interventions. Global health legal practitioners must be ready to use laws at virtually every level of government as tools for global health improvements. Innovative interpretations of comparative international or constitutional laws are needed. For example, bold judicial interpretations of South Africa's constitution have led to a recognized duty of that country's government to provide basic health services. Statutory and regulatory reforms are essential. Litigation strategies may contribute to accomplishing global health objectives, as seen in legal suits brought against tobacco companies. No single legal practitioner is capable of wielding laws in all their forms to effect change; only through collaboration within the legal community are many legal interventions possible. To further collaboration, legal practitioners must divorce themselves from a narrow vision of the exclusive use of one form of law to effectuate global changes, and be prepared to consider multiple legal approaches to take in stages or in unison to ameliorate global health.
The field of global health law presents enormous challenges for legal practitioners. The legal paths to improving global health are broad, complex, and in many ways uncertain. Reforming laws to effectuate change can be difficult, expensive, and full of compromises. Even as specific efforts in global health law are undertaken and nations and their populations respond to changing legal norms and responsibilities, it may be years before public health outcomes may improve. Furthermore, proving that legal reforms were actual catalysts for improvements in global health can be complicated, given the diversity of factors at interplay at the transnational level. From these challenges, however, come unique opportunities. Within our conception of global health law are manifold roles for legal practitioners to help reduce morbidity and mortality, lessen the impact of poverty, and improve health outcomes globally. Equipped with essential knowledge and skills and an appreciation for one's role in the global health legal infrastructure, the possibilities are endless.