• A definition• ‘the use of formal and informal institutions, rules,

and processes by states, intergovernmental organizations, and non-state actors to deal with challenges to health that require cross-border action to address effectively’David Fidler, ‘The Challenges of Global Health Governance’ (2010)

Global health governance

• Analysing global health governance along three political spacesIlona Kickbusch and Martina Marianna Cassar Szabo, ‘A new governance space for health’ (2014)

Global health governance

1. Global health governance• Mainly those institutions and processes of

governance that have an explicit health mandate, such as WHO, GAVI Alliance, Global Fund to Fight AIDS, TB and Malaria, and health focused networks and initiatives and NGOs

Global health governance

2. Global governance for health• mainly those institutions and processes of global

governance that do not necessarily have explicit health mandates, but that have a direct and indirect health impact, such as the WTO and the post-2015 MDG/SDG process, ILO, FAO, WIPO• many of these institutions and processes related to the social

determinants of health, and to the global flow of goods, services and ideas related to health

Global health governance

3. Governance for global health• institutions and mechanisms established at national

and regional levels that contribute to global health governance and/or governance for global health• eg national delegations approaching spheres of

GHG and GGH• importance of policy coherence and inter-sectoral

cooperation at domestic level• security, trade, finance, agriculture, development

and employment industries

• concepts such as healthy public policy

Global health governance

• ever-increasing complexity of GHG• fragmentation – institutions and actors• more political, less technical

• increasing recognition of global health as a foreign policy issue• achieving security, creating economic wealth, supporting

development and protecting human dignity

• health in the sustainable development agenda• the three dimensions of sustainable development - economic,

social, environmentalJonathan Liberman, ‘Making Effective Use of Law in the

Global Governance of NCD Prevention’ (2014)

Themes in global health governance

• UN Interagency Task Force on NCDs• NCD Global Coordination Mechanism

• ‘a field that encompasses the legal norms, processes, and institutions needed to create the conditions for people throughout the world to attain the highest possible level of physical and mental health’Lawrence Gostin and Allyn Taylor, ‘Global Health Law: A Definition and Grand Challenges’ (2008)

Global health law

• international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

• international custom, as evidence of a general practice accepted as law

• the general principles of law recognized by civilized nations

• judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of lawArt 38(1) Statute of International Court of Justice

Sources of international law

• definition‘an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation’

Art 2 Vienna Convention on the Law of Treaties 1969

• pacta sunt servanda• ‘Every treaty in force is binding upon the parties to

it and must be performed in good faith’Art 26 VCLT

Treaties

• hard law vs ‘soft law’• does soft law exist?• is soft law really law?• does it matter?

Binding and non-binding instruments

• unparalleled strengths and credibility as a framework for multilateral cooperation

• formalized process of legalization provides unique credibility when states want to indicate and undertake serious commitment to international cooperation

• useful for raising global awareness and stimulating international commitment and national action

• national ratification processes further cements credibility of treaty law

• significant legal and reputational consequences can attach when states fail to meet their international legal obligations

Binding international law

• But …• States generally loath to sacrifice freedom of action

through binding international commitments• general lack of enforcement mechanisms• treaties can be slow to negotiate, conclude and bring

into force• process cannot generally respond quickly to changes in

science• can result in negotiation of shallow international

standards (lowest common denominator)• treaty-making expensive

Binding international law

• References for the above• Allyn Taylor et al, ‘Nonbinding Legal Instruments in

Governance for Global Health: Lessons from the Global AIDS Reporting Mechanism’ (2014)

• Allyn Taylor and Ibadat Dhillon, ‘An International Legal Strategy for Alcohol Control: Not a Framework Convention – At Least Not Yet’

• types• non-binding decisions of international organizations

and bodies (guidelines, programmes, declarations, directives, plans of action, programmes of action, recommendations)

• bilateral or multilateral non-obligatory agreements and declarations created together by states

• recommendations passed by NGOs of impact in terms of international practice (eg ICRC)Laszlo Blutman, ‘In the Trap of a Legal Metaphor: International Soft Law’ (2010)

Non-binding instruments

• normative rules of conduct that can have a great impact on conduct and activities of international actors

• more flexible than treaties – can facilitate compromise and cooperation among states with different goals and time horizons because states do not run risks to reputation of countermeasures if breach treaty commitments

• can be more dynamic, more easily updated – more responsive to needs of ever-changing world

• can allow learning and experimentation that can lead to deepening of obligation over time

Non-binding instruments

• negotiation and implementation can more readily involve and speak to non-state actors

• can include variety of implementation mechanisms which mirror the mechanisms found in binding instruments including institutionalized periodic reporting and international technical and financial assistance programs

• can be a basis for interpreting legal rulesTaylor et al (2014), Blutman (2010)

Non-binding instruments

• Alcohol• Taylor and Dhillion, ‘An international legal strategy for

alcohol control: not a framework convention—at least not yet’

• Liberman, Comment on Taylor and Dhillon

• Obesity• Consumers International and World Obesity Federation,

‘Recommendations towards a Global Convention to protect and promote healthy diets’

• Liberman, ‘A global convention on healthy diets? Some lessons from the WHO Framework Convention on Tobacco Control’

New Framework Conventions?

• Laszlo Blutman, ‘In the Trap of a Legal Metaphor: International Soft Law’ (2010) http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1661681

• David Fidler, ‘The Challenges of Global Health Governance’ (2010) http://www.cfr.org/global-governance/challenges-global-health-governance/p22202

• Lawrence Gostin and Allyn Taylor, ‘Global Health Law: A Definition and Grand Challenges’ (2008) http://scholarship.law.georgetown.edu/ois_papers/14/

Resources

• Ilona Kickbusch and Martina Marianna Cassar Szabo, ‘A new governance space for health’ (2014) http://www.globalhealthaction.net/index.php/gha/article/view/23507/html

• Jonathan Liberman, ‘Making Effective Use of Law in the Global Governance of NCD Prevention’ (2014) http://www.mccabecentre.org/downloads/J_Liberman_chapter_Making_Effective_Use_of_the_Law_for_NCDs.pdf

Resources

• Allyn Taylor et al, ‘Nonbinding Legal Instruments in Governance for Global Health: Lessons from the Global AIDS Reporting Mechanism’ (2014) http://onlinelibrary.wiley.com/doi/10.1111/jlme.12120/full

• Allyn Taylor and Ibadat Dhillon, ‘An International Legal Strategy for Alcohol Control: Not a Framework Convention – At Least Not Yet’ http://onlinelibrary.wiley.com/doi/10.1111/j.1360-0443.2012.03919.x/abstract

Resources