New England Journal of Medicine
May 1, 2014 Vol. 370 No. 18
http://www.nejm.org/toc/nejm/medical-journal

Review Article
Global Health
Global Health and the Law
Lawrence O. Gostin, J.D., and Devi Sridhar, Ph.D.
N Engl J Med 2014; 370:1732-1740 May 1, 2014 DOI: 10.1056/NEJMra1314094
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Excerpt
The past two decades have brought revolutionary changes in global health, driven by popular concern over the acquired immunodeficiency syndrome (AIDS), new strains of influenza, and maternal mortality.1 International development assistance for health — a crucial aspect of health cooperation — increased by a factor of five, from $5.6 billion in 1990 to $28.1 billion in 2012, with the private and voluntary sectors taking on an ever-increasing share of the total.2 Given the rapid globalization that is a defining feature of today’s world, the need for a robust system of global health law has never been greater.
Global health law is not an organized legal system, with a unified treaty-monitoring body, such as the World Trade Organization. However, there is a network of treaties and so-called “soft” law instruments that powerfully affect global health, many of which have arisen under the auspices of the World Health Organization (WHO). Global health law has been defined as the legal norms, processes, and institutions that are designed primarily to attain the highest possible standard of physical and mental health for the world’s population.3
Global health law can affect multiple spheres, ranging from national security, economic prosperity, and sustainable development to human rights and social justice. Each global health problem is shaped by the language of rights, duties, and rules for engagement used in the law…
…Strategy for Global Health Laws
Given the undoubted need for global cooperation, international norms are accepted as important global health tools. The more difficult question is whether to pursue hard or soft routes to address health challenges. This debate plays out in international forums ranging from alcohol control and biomedical research to broader reforms such as the Framework Convention on Global Health.30,43-45 However, there are strengths and weaknesses to both approaches.
Soft agreements are easier to negotiate, with countries more likely to accede to far-reaching norms if there is no formal obligation to comply. Countries can assent to a soft norm without the national constitutional processes entailed in ratifying a treaty. In addition, soft norms can be negotiated more quickly with the use of fewer resources. Resolutions of the WHO Health Assembly represent a major expression of political will and can lead to progressive deepening of norms — enacted into domestic law, referenced by treaty bodies, or incorporated into international law. The WHO, moreover, is building accountability mechanisms into soft agreements, with targets, monitoring, and timelines for compliance.
However, national governments can largely ignore soft instruments, and as a result, civil society often urges treaty development.30 No hard norms have been enacted, for example, relating to food, alcohol, physical activity, injuries, pain medication, or mental health. If the WHO acts principally through voluntary agreements, while other sectors develop hard law, this weakens and sidelines the agency. Civil society often points to the obligatory nature of international trade law and its binding dispute-settlement mechanism, which often trumps WHO norms.46
Even with all the funding and celebrity power that has entered the global health space, key health indicators lag, whereas the health gap between rich and poor has barely abated.47,48 A renewed attention to lawmaking efforts by the WHO and the human right to health are crucial elements of progress. It is only through law that individuals and populations can claim entitlements to health services and that corresponding governmental obligations can be established and enforced. It is through law that norms can be set, fragmented activities coordinated, and good governance ensured, including stewardship, transparency, participation, and accountability. Global health law, despite its limitations, remains vital to achieving global health with justice.