The Dual Dimension of the Global Governance of Health

Caterina Di Costanzo^1,

¹Department of Law, University of Florence, Florence, Italy

Cite this paper

Caterina Di Costanzo. The Dual Dimension of the Global Governance of Health. American Journal of Public Health Research. 2014; 2(2):36-45. doi: 10.12691/AJPHR-2-2-1

Abstract

Although there is a large body of literature that deals with questions relevant to the global governance of health, the legal studies have proved slower in providing systematic approaches to interpreting and analyzing the global governance of health. The case of global governance of health offers a number of interesting insights that ought to advance legal as well as political debates. We begin by briefly outlining the scope and nature of the dual dimension of global governance of health (GHG), arguing that the main challenge for contemporary GHG is to reestablish within the health policy framework the linkage between health care interventions and the underlying socioeconomic context. The understanding of the relationships between health and development as confirmed in the Tallin Charter on Health and Wealth adopted by all WHO (World health organization) European Member States in 2008 is the underpinning of the shift towards more horizontal and inclusive approaches (strategies such those of “The new European policy for health – Health 2020: Vision, values, main directions and approaches” of the Who Europe – 2011 – named “a whole-of-society approach” and “a whole-of-government approach”). In the second part of the paper, we explore recent inputs into the GHG discourse from a wide spectrum of actors, ranging from the WHO to nongovernmental organizations (NGOs). We suggest that in their varying hues, these actors have attempted to reintroduce the wider social concerns constitutive of a more integrated approach to health law, which would locate specific interventions within a broader project of socioeconomic transformations.

Keywords

health law, global governance of health, vertical governance, horizontal governance, civil society organizations

Copyright

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References

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[4]	The expression finds its origin in Gunther Teubner, La cultura del dirittoall’epocadellaglobalizzazione [The culture of law at the time of globalization], Rome, Armando Editore, 2005, p. 32 ss., where the author speaks of structural coupling between law and economics especially for the phenomenon of lexmercatoria.
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[12]	See Art. 6, which provides an obligation of notification and information of a health emergency of international concern through the medium of more efficient communication within 24 hours of assessment of relevant information.
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[14]	In the Sardines case the prevalence of global standards on European rules was established. The WTO Appellate Body said that the European business should work on the basis of global standards set by the Codex Alimentarius Commission and the World Health Organization. See WT/DS 231/AB/R, 26 September 2002.
[15]	Article 27 of Thai law on tobacco of 1966 prohibited the import or the export of seeds, plants, leaves, tablets of tobacco and tobacco fine without license, issued solely by the Thai Tobacco Monopoly. In addition, it imposed a regime of taxation for different internal products from national tobacco (60%) and imported tobacco (80%). The United States, claiming the protectionist intent of the Thai legislation, asserted violation by Thailand of the principle of non-discrimination (Article III GATT), as well as the prohibition of quantitative restrictions (Article XI.1 Gatt). See panel report of 7 November 1990 (DS10/R-37S/200).
[16]	European Communities-Measures Affecting meat products (Hormones), Report of the panel WT/DS26/DS48/R of 18 August 1997; the Appellate Body report WT/DS26/DS48/AB/R of 16 January 1998; the other fundamental case is European Communities measures Affecting the approval and marketing of biotech products, WT/DS 291, WT/DS 292, WT/DS 293, available on the WTO website.
[17]	See Council Directive n. 96/22 of 26 April 1996. The consumption of meat from animals raised with the help of hormones has been considered by European institutions a highly risky behavior for health, in spite of the fact that the state of scientific knowledge does not allow to unequivocally demonstrate the harmful effects on human health or exclude them permanently. Just on the basis of this assumption the Community could not justify the restrictive measures pursuant to art. 5 para. 7 of the Sps, specific expression in the global field of the precautionary principle, but it has called for the application of the precautionary principle in the context of political management of the risk in the absence of sound scientific knowledge.
[18]	The Sanitary and Phytosanitary Agreement (SPS), which entered into force in 1994 with the adoption of the agreement establishing the WTO provides that the restrictions placed by the states to protect the health must be consistent with the principles of necessity and non-discrimination and must be justified scientifically and aimed to the exclusive protection of human health, agriculture and the animal world.
[19]	For the literature on the case cf. C. Joerges, “Law, science and the management of risk to health at the national, European and international level. Stories on baby dummies, mad cows and hormones in beef”, in Columbia journal of European law, 2001, p. 1 ss.
[20]	Salmon case decided by the Appellate Body in November 6, 1998 (WT/DS18/AB/R) and Agricultural products case, decided by the Appellate Body in February 22, 1999 (WT/DS76/AB/R), focusing on the quarantine procedure imposed on agricultural products imported from Japan: the illegality of the procedure, direct to avoid epidemics and opposed by the U.S., was considered, in the light of art. 5.1 of the SPS Agreement for the inadequacy of risk assessment, protectionist in favor of the internal market.
[21]	The memorandum provides an agenda made up of three phases: in the first (the first three years of implementation), the United States will maintain in force sanctions but reduced to 38 million dollars (instead of 116 million first applied), and shall cease to apply sanctions "carousel", whose afflictive power was formed by the half rotation of ever new products, so as to hit many productions for the strategic European food industry (mineral water, cheese, fruit juices, etc. ..). In return, the EU will grant a tariff quota at zero duty in favor of at least 20,000 tons of meat quality (as long as they fully comply with the EU criteria and without hormones). In the fourth year of implementation of the Memorandum the opportunity to advance to the second phase with the suspension of remaining U.S. sanctions and an increase in the share of import duty zero up to 45,000 tons is provided. The third phase consists of the verification of results from the EU and the U.S. and the eventual consolidation of the agreement be
[22]	European Communities-Measures Affecting abestos and products containing abestos; panel report WT/DS135/R of 18 September 2000; report of the Appellate Body WT/DS135/AB/R of 12 March 2001. The French Government had adopted a decree that included a prohibition of the manufacture, production, import, export and sale of asbestos fibers and products. In 1998, Canada, the largest exporter of asbestos, countered the adoption of the decree and gave rise to a dispute asserting that the French decree violated Articles III. 4, XI of the GATT and Articles 2.1, 2.2, 2.4, 2.8 of the TBT (Technical barriers to trade). The European Union, in favor of France, stated that the decree was not covered by the TBT Agreement and that it was compatible with Art. III.4. and XX letter. b of GATT, given the necessity of the decree. The panel concluded, in the light of the objective of health protection guaranteed by France (the total elimination of the risk associated with the use of asbestos fibers), there were no alternative measures
[23]	The ban was placed by the decree of the Prime Minister no. 1133/96 of 26 December 1996 adopted pursuant to the Labor Code and the consumers Code in force since 1 January 1997.
[24]	See the initiatives Stop TB, Roll Back Malaria, Malaria medicines initiatives, International Partnership against AIDS in Africa, International AIDS Vaccine initiatives, Global Alliance for vaccines and immunization, on www.who.int. The verticality of the initiative concerns the specific indication of disease which is destined to be fought.
[25]	The global health partnerships are characterized by a very solid relationship between at least three subjects, among them at least one company and an intergovernmental organization that overcoming the traditional State limits is marked by transnationality. The sharing of objectives by the actors is associated with the establishment of government bodies and consultation that include representatives from both the public and the private and joint decision-making processes, the use of developed techniques in the private field for the achievement of social objectives. Private enterprise offers thus acquired expertise in research capacity, technology and development to meet the global challenges in the health; public institutions maintain a leadership role, directing the action on the basis of existing health needs.
[26]	See Who, Principles governing relations between Who and Ngos, 1987, Resolution of the World Health Assembly, Wha 40.25. In 2001, the WHO launched the Civil Society initiatives, with the objective of promoting greater cooperation and an effective dialogue with NGOs and civil society organizations.
[27]	Gavi is an independent organization which includes governments, institutions, and public health research, technical agencies, the pharmaceutical industry, WHO, the World Bank, and UNICEF. It was established in January of 2000 from an initial contribution of $ 750 million from the Bill & Melinda Gates Foundation and has been heavily sponsored by WHO.
[28]	See Gavi joint board meeting, Voting procedures, 26 February 2008. The rule of consensus or, alternatively, the two-thirds majority is also provided for the votes of the commissions.
[29]	The commissions are six: Executive committee which has a preparatory role of the meetings of the board, Programme and Policy committee, Governance committee, Investment committee, Audit and finance committee, Evaluation advisory committee. The last five committees play an advisory role in respect to the board.
[30]	On the strategies of Gavi, cf. http://www.gavialliance.org/about/strategy/. Abandonment of rigidly vertical approaches that had characterized health policy of the first administrations of global partnership matched with a renewed attention to the strengthening of health systems.
[31]	See Gavi, Guidelines for applications, 14 June 2013 for HPV Demonstration Programmes 2013 andNew and Underused Vaccines Support 2013.
[32]	Candidates of Irc are selected by the Executive Secretary but must be appointed by the Board of Directors on the basis of scientific excellence, integrity and independence by Gavi partners.
[33]	The Global Fund provides the support for programs aimed at the control of the three diseases "in ways that contribute to the strengthening of health systems", cf. The Framework document of the Global Fund to Fight AIDS, TB and Malaria, Geneva, 2002. The eligible interventions for funding are selectively directed to those system functions, such as training of health personnel or the supply of essential drugs for the implementation of the programs objectives such as prevention and treatment of the three mentioned diseases.
[34]	The Global Fund, Developing a platform for joint funding and programming of health system strengthening with the World Bank and the Gavi Alliance. Policy and Strategy Committee Meeting, 23-25 September 2009, GF/PSC 12/04.
[35]	See R. England, “Lessons and myths in the HIV/AIDS response”, inThe Lancet, 2009, p. 1647.
[36]	P. Rosiak, Les transformation du droit international économique. LesEtats et la société civile face à la mondialisationéconomique, Paris, 2003, pp. 253 ss.
[37]	See Aguas de Santa provincials, Santa Fe A. Suez and the Argentine Republic, ICSID Case No ARB/03/17, ARB/03/19, Order in response to a Petition for Participation as Amicus Curiae at 17 of March 2006. See J. Steffek, The evolution of civil society's legal status in international governance and its relevance for legitimacy of international Organizations, in J. Steffek C. Kissling P. Nanz (editors), Civil Society Participation in European and global governance: a cure for the democratic deficit?, Basingstoke, Palgrave Macmillan, 2008, pp. 41 ff. In the case Aguas del Tunari, the ICSID Tribunal found that the parties' agreement was a prerequisite for the participation of environmental non-governmental organizations in the process through the presentation of specific report. On 10 April 2006 the rules 32 and 37 of the Arbitration rules of Icsid have been modified in order to allow the participation of third parties in the processes before Icsid.
[38]	See Methanex Corp v. United States of America, UNCITRAL (United Nations on international trade law) Case, August 2005.
[39]	United States-Import prohibition of certain shrimp products, the Appellate Body report WT/DS60/AB/R of 2 November 1998.
[40]	See WT / DS 231/AB/R, 26 September 2002.
[41]	However, in the event that the reports are not considered relevant in this respect, the global judge does not have an obligation to state reasons on this point, nor power to appeal against the decision is attributed to non-governmental organization.
[42]	In the General Council meeting of 22 November 2000 on the communication of the Appellate body in the Abestos case, States had expressed some hostility towards this prospect, requiring a specific and more restrictive discipline for the intervention of amicus curiae, stating the need for an amendment of art. 16.1 of the Working procedures for appellate review, not being sufficient a jurisprudential extension of norms, and expressing impatience with what appears, at their say, a deterioration of the position, with respect to NGOs, of the Member States not standing and not intervening. The document containing additional rules for the submission of reports by the amici curiae is WT/DS/135/9 8 November 2000.
[43]	Janet E. Lord, David Suozzi, and Allyn L. Taylor, “Lessons from the Experience of U.N. Convention on the Rights of Persons with Disabilities: Addressing the Democratic Deficit in Global Health Governance”, inJ.L. Med. & Ethics, 2010, n. 38, pp. 575-576.
[44]	For example, the Military staff committee, an Advisory Committee supporting the activities that the Security Council performs in the maintenance of international peace and security; the Committee on the peaceful uses of outer space, established in 1959 by the General Assembly to promote international cooperation in the peaceful use of outer space; the UN Committee on Disarmament (United Nations disarmament commission) with advisory functions and powers of recommendation to the General Assembly, established by general Assembly resolution n. 502 of 1952. Important scientific committees of independent experts have been established by General Assembly resolutions, such as the Scientific Committee for the study of the effects of ionizing radiation founded with resolution no. 913 of 1955, whose analysis flows into the reports submitted every four years to the General Assembly of the United Nations.
[45]	In relation to the generality of products these are named General committees; in relation to specific product categories Food Commodity Committees. The Codex Commission is composed, in fact, of a network of 21 specialized committees, providing technical contributions, among which two are particularly active: the joint meeting of the FAO/WHO on Residue pesticides (Joint FAO / WHO meeting on pesticides residues - JMPR) and the Joint Committee FAO/WHO on Food Additives (Joint FAO/WHO expert committee on food additives - JECFA), cf. codexalimentarius.net/web/committees. The coordination committees check that the activities of the Commission corresponds to regional interests and to concerns of developing countries.
[46]	These are five Regional Committees for Africa, Europe, Latin America and the Caribbean countries, for Asia and the Pacific and the western Asia, established by resolution of the Economic and Social Council on the basis of art. 68 of the Charter of the United Nations. These five Regional Committees are composed of subsidiary bodies consisting of experts from government with the power to establish working groups and subcommittees.
[47]	These Committees are established on the basis of articles 46-50 of the WHO Constitution.