International Health Law Lectures (2021-2022)
Professor Bridgit Toebes + guest lectures
University of Groningen
Lecture 1: ‘Introduction to international Health Law’
We can distinguish between domestic health law and international health law.
Communicable diseases Non-communicable diseases
Diseases that can spread from one person to A group of chronic slow-progressing diseases
another via various means and methods
Usually, infectious diseases Usually, non-infectious diseases
Covid, Ebola etc. Diabetes, cancer, cardiovascular diseases,
chronic respiratory diseases etc.
4 risk factors of NCDs
1. Unhealthy eating
2. Excess alcohol
3. Physical inactivity
4. Tobacco use
Our health is influenced by internal (genes) and external factors (social and community).
Why global health law, why is this an important field?
• Health is a pressing social need, important for the protection for the human wellbeing
and touches on human dignity. Health is a dimension for Human dignity.
• Globalization has implications for the protection of health worldwide.
→ Traditional focus: infectious diseases: international Health Regulations 2005.
→ New and broader focus: lifestyle, environmental degradation, urbanization,
international trade and commerce: Framework Convention on Tobacco control.
Is it global or international health law? = are used interchangeably
• International health law, a branch of international law, similar to international
environmental law, international humanitarian law etc. + emphasis on preventing the
spread of infectious diseases.
• Global health law: health as a global concern, transcending national borders + can better
accommodate non-state-actors.
,Scope of health law – regime interaction
Normative foundation: human capability?
• Amartya Sen, Martha Nussbaum
• Prah Ruger & Venkatapuram: a theory of health justice
→ Claims that society has an obligation to maintain and improve health based on the
principle of human flourishing or human capability.
• Venkatapuram: health capability approach
→ Everyone’s entitlement to a capability to be healthy – a right to a cluster of
entitlement (connection with HR).
→ Societies should focus on supporting the capabilities of individuals to conceive,
pursue, and revise their life plans.
Vulnerability
• Vulnerability theory: Martha Fineman
• The core of being human is to be vulnerable rather than autonomous.
• This emphasizes our interdependency within social institutions and the need for public
responsibility for our shared responsibility.
• Connected to the idea of intersectionality: idea of discrimination on various ground.
Sources of global health law
There is no central law-making authority on the international plane.
But we have, Article 38 Statute ICJ = sources of international law.
1. International conventions
2. International custom
3. General principles of law
4. Judicial decisions
5. Doctrine
What are the sources of international health law?
▪ Conventions: WHO standards and other
▪ Custom: autonomy, privacy, and confidentiality
▪ General principles: equity, solidarity, and proportionality
▪ Judicial decisions: international and domestic decisions
,▪ Doctrine: writings from scholars.
History:
Infectious disease control is at the root of international health law.
• 1829: second cholera outbreak!
• 1951: first international sanitary conference (France); 14 in total
• 1892: first international sanitary convention adopted (Venice; cholera)
• 1903, 1944, 1951, 1969: revision of sanitary regulations (conventions)
• 1907: OIHP established / after WWI: also Health Organization League of Nations (1923)
• 2005: current International Health Regulations, replacing the 1969 sanitary regulations
Establishment of Specialized Agencies
WHO is a UN specialized agency, basis on Article 57 of the UN Charter. The idea of the WHO
was established on the UN conference in San Francisco in 1945. In 1946 the WHO
constitution was adopted and in 1948 the WHO became active formally, meaning
constitution entered into force.
Constitution WHO = founding instrument of the WHO.
Preamble: gives for the first time and description of what Health is + for the first time
recognized that health is a right:
Recognition of three different types of powers in the WHO Convention:
→ Article 19: WHO can adopt Treaties (the only one yet is the Framework Convention on
Tobacco Control, 2003)
→ Article 21: WHO can regulate (concerning 5 designated health-related matters; binding
to all nations that do not opt out) International Health Regulations, 2005. Regulations
are in a way an exception to the rule that states cannot be bound to something they did
not accept.
→ Article 23: WHO can make non-binding recommendations. What is the authority of
these non-binding recommendations? Can be quite influential, but not binding.
, WHO binding instruments:
Both instruments do not offer a sanction mechanism. Then to what extent can you
generate violations of f.e. the Framework Convention tobacco control under the ICCPR?
Soft law standards in global health law
We see a wide range of standards that carry various levels of authority.
Examples:
- WHO code on the marketing of Breastmilk substitutes
- Human Rights General Comments
- Guidelines for the implementation n the WHO framework convention on Tobacco
control
What is the status of these soft law instruments?
Burci: ‘are informal international lawmaking’
Pauwelyn et al:
• Complex transnational societies of networks with the increasing involvement of new
international actors on the international stage, engaging in new form of collaboration
• Soft law standards have been an influential tool to address these interactions and
they plan an important role in filling regulatory gaps.
Tension with other branches of international law
Examples:
• The rights of patients to affordable medicines under the right to health are often at
tension with the recognition of excessive intellectual property rights (i.e. patents – TRIPS
Agreement) of the pharmaceutical industry;
• Governmental measures to curb smoking under the FCTC are often counteracted by
tobacco industry & tobacco producing countries, e.g. recent WTO Plain Packaging
Reports.
