12 December 2017

Is there space for more international (health) law?

“Global Health Law” has become fashionable. But what does it mean? In order to define it, should one go beyond classic public international law, since the extent to which health regulations are actually law is much discussed? A book jointly edited by Gian Luca Burci, Adjunct Professor of International Law, and Professor Brigit Toebes, of the University of Groningen, The Netherlands (forthcoming in 2018 in the Elgar Research Handbooks in International Law series) addresses these questions. Prof. Burci presents here a convention paper, titled “The Future of Global Health Law: Is There Space for More International Law?”, that will form the book’s final chapter. He invites us to be intellectually honest and not fall for appellatives that are fashionable, favouring, rather, the various framings of health and what health stands for.

In your contribution, you look at health as a normative value in international law besides the object of a limited number of dedicated treaties and similar instruments. How have you come to look at health in this manner?

Because of several considerations. The first is related to the historical development of the concept of health. Health, in a relative short span of time, moved from a largely technical discourse on healthcare and public health from a domestic perspective, where the only international law element was the control and prevention of epidemics, to a high level of international politics and it is now perceived as a value that shapes the design, implementation, interpretation and enforcement of many areas of international law. Domestic perceptions of health are greatly affected by international law. This particular interaction becomes very complex and evident in certain areas of international law such as economic and environmental law. This gave me the impression that health is no longer a social value, a technical issue, a humanitarian issue, but has become a normative element, a normative value, that is embedded in and aligned with many areas of international law. I believe this approach generated a lot of the recent scholarship on international law and health – or on global health law, since many people like that label.

I was also approaching the issue of health from the perspective of a non-health lawyer, because I am not a health lawyer – I was an international lawyer working in international organisations, doing other things. So, I was looking from an outsider’s perspective with a broader and more critical viewpoint, inspired by how law has developed in the legal and political discourse in the last 20–25 years.

How will this normative perspective change the future perceptions of health at both international and domestic levels? And how will it affect the obligations of the actors involved?

Hopefully, it will be a force for good, because I am deeply convinced that – and it seems self-evident – health defines who we are as individuals and communities. But politically, health has always been a relatively weak value, nationally and internationally, being at the receiving end of political agendas such as economy and security, not the predominant one in a context marked by competition for resources, for political attention. So, health needs rebalancing in order to be provided with a political and normative structure that can create a real impact on the lives of people. This is not an advocacy issue; looking at health as a normative value will help continue a reflection that has been going on for the last 20 years, which aims at re-establishing the importance of health in other political and normative agendas, since many health determinants are regulated by other areas of international law.

The development of international jurisprudence with regard to the right to health has been one of the most important drivers for looking at health as a normative value. The right to health is relatively weak – probably the weakest – among the social and economic rights, but it has really guided the conversation towards looking at health from the point of view of states’ obligations to protecting and promoting health in its various manifestations. 

If you look at health as a value, it may shift the focus from a purely normative perspective towards a process-driven perspective. So how do you define the tools through which actors engage in the realisation of health-related goals?

That is a very good point for discussion. In a way, human rights already give some of the tools to look at the health process from a national perspective: issues of representativeness, inclusions, legitimacy, non-discrimination and good governance come from different perspectives, but share the vocabulary of human rights. In addition, one sees strands of scholarship, represented here at the Institute, which look at the way law is shaped. Nico Krisch, for instance, is one of the fathers of Global Administrative Law, and this strand of scholarship is very much focused on process, and on means to define the criteria which shape normative and governance functions in our contemporary world as well as on the means to elaborate process features to ensure more accountability and legitimacy. 

I thus take three perspectives: first, there are political questions of good governance and legitimacy; second, there are human rights developments with regard to health; and third, I take into account recent analytical tools, which look at the actual shape of society, where states are still the principal, but by no means the only actors that shape policies and values. Hence, seen from a more holistic perspective, in light of the previous strands of scholarship, Global Administrative Law – to which one may add Informal Law-Making, with Joost Pauwelyn being one of the main fathers – moves partially the focus of analysis to processes and institutions, and this gives a sense of the tools employed for the realisation of the right to health.

The working title of the edited book containing this piece of research is “Global Health Law”, but I think we need to be intellectually rigorous and honest. Global Health Law has become fashionable. But what does it mean? We have a number of questions we still need to answer, since there are different framings of the law. In order to define health, it is not yet clear whether one needs to focus on something broader than classic public international law, since there are also discussions about how much of health regulations are actually law. The title should, and will, reflect those discussions, and will hopefully also be attractive enough for a broad public.By Oana Ichim, PhD Candidate in International Law

Interview by Oana Ichim, PhD Candidate in International Law