B. An Expanded Sphere of International Health Law: The Influence of Trade and the Human Right to Health

Although international law under WHO’s auspices is sparse, there is a much larger body of international law that powerfully affects global health in areas ranging from food safety, arms control, and the environment to trade and human rights. The WHO should be a leader in creating, or at least influencing, these norms, but that has not happened. The agency has shied away from the “high politics” of international law because it has seen itself principally as a scientific, technical agency. Thus, WHO is comfortable developing technical standards for food safety under the Codex Alimentarius Commission, but it has not ventured into the harder terrain of WTO rule making and dispute resolution. It ought to have a great deal to contribute, and have some sway over, matters of trade in goods and services; sanitary and phytosanitary measures; and intellectual property rights in vaccines and medicines. Yet, its influence is nowhere to be found.

It might not matter whether WHO was a prime mover on matters of global health if extant international norms were adequate, but they are not. International institutions and social activists increasingly have turned to the language of human rights to articulate their fondest dreams for global health. And, the international right to health resonates with bold-sounding obligations for the “highest attainable standard of physical and mental health.” The WHO Constitution defines health so broadly to be simply unachievable: “a state of complete physical, mental and social well-being.”

These high-minded declarations have had little normative force, as they lack the basic features of a “right”: What exactly does the right entail and what obligations do States, and others, have to conform? When is the right violated? And what are the mechanisms to enforce the entitlement? Despite considerable progress, recasting the problem of extremely poor health as a human rights violation does not help for a number of reasons. First, the legal obligation falls primarily on each State to “respect, protect, and fulfill” the right to health for its own population. Although the ICESCR posits that all States have duties to assist and cooperate in achieving economic and social rights, the obligation to assist other States’ populations cannot become primary. Second, the right to health itself is expressed as “progressively realizable,” so there can be little agreement as to when a State has breached an obligation to its people, let alone to people in far away places. Finally, even if some obligation to offer financial and technical assistance could be read into human rights instruments, there is no systematic method of implementation and enforcement. This leaves us with the very problem posited in this Lecture—the duty to improve the health of the world’s most disadvantaged people falls primarily on those who lack the means to do so. This is undoubtedly an untenable position if global health is to be taken as a serious issue of international concern.