A. International Health Law: WHO’s “Thin” Record of Law Making

The WHO Constitution grants the agency extensive normative powers, which it has never fully exercised. The agency can adopt binding conventions which, unlike normal treaties, affirmatively require States to “take action” within 18 months. The WHO also possesses quasi-legislative powers to adopt regulations. WHO regulations, unlike most international law, are binding on Member States unless they proactively “opt out.” Despite WHO’s impressive normative powers, modern international health law is remarkably thin, with only one significant regulation and one treaty in 60 years of existence. The International Health Regulations (IHRs), until they were revised in 2005, applied only to cholera, plague, and yellow fever—the same diseases originally discussed at the first International Sanitary Conference in Paris (1851). The IHRs, therefore, historically and politically, were intended to prevent trans-migration of disease, rather than to improve health in poor countries. To be sure, this international instrument is far more expansive and bold than its predecessors, but it is unlikely to do the work that is needed in global health—namely, to dramatically improve the plight of the world’s least healthy people.

The WHO did not create a health convention until 2003, when the WHA adopted the Framework Convention on Tobacco Control (FCTC). The FCTC declares the bold objective of protecting present and future generations from the devastating consequences of tobacco consumption and exposure. Although a laudable achievement, the FCTC is almost sui generis because it regulates the only lawful product that is uniformly harmful. The FCTC was politically feasible because the industry was vilified for denying scientific realities, engineering tobacco to create dependence, engaging in deceptive advertising, and targeting youth, women, and minorities.