For those who would dismiss health law as a mind-numbing blend of insurance policy and the regulatory state, think again. Lawrence Gostin here presents a persuasive and inspiring call to action for lawyers and legal scholars to harness their talents to the fundamental goal of health for all by utilising human rights standards, international treaties and activist litigation. Tedious it is not.
To be sure, the jurisprudence of global health is still in a nascent state, in part because the concept of a right to health is difficult to articulate. This is, after all, the same right to health that a US Court of Appeals dismissed as being “boundless and indeterminate…‘devoid of articulable or discernible standards and regulations’…[a] nebulous notion that [is] infinitely malleable”.
Gostin acknowledges this limitation and others, including the scant enforcement powers of international conventions, which depend on governments with the political will and capacity to effectively implement their provisions at the domestic level. But global health is not merely a recitation of aspirational standards and toothless laws, and the author exhorts individual nations and the international community to apply meaningful governance standards to global health even as the right to health continues to evolve and gain acceptance.
By definition, global health is not limited to the developing world. This is acknowledged in the book’s early sections on global health narratives and global health justice, which note that profound health inequalities are found in rich countries – two of the narrators featured here are Native Americans living on reservations – just as in poor countries. Nonetheless, Gostin asserts that because “the determinants of health are not bound by national borders”, wealthy states have an obligation to pull their weight. He notes that although the World Health Organisation has called on rich countries to devote approximately 0.1 per cent of their gross national income to development assistance for health, in 2010 official development assistance for healthcare from Organisation for Economic Cooperation and Development member states was less than 0.05 per cent of their gross national income. Gostin notes astutely that although basic public health is considered a “baseline requirement for a functioning society”, wealthy countries today are uninterested in fundamental public health services overseas (a notable exception to this rule is the US Peace Corps, which has long focused on water and sanitation as essential to global health and economic development).
The history of public health successes – including the establishment of the WHO, the eradication of smallpox and globalised information sharing about disease – demonstrates that challenges to public health are not overcome by science alone. Rather, social mobilisation through law and activism holds governments accountable to the public health.
Global health law is here defined as setting out the international legal framework that is needed to empower advances in global health, consistent with the values of social justice. Just as global health itself involves many disciplines, diverse areas of the law affect global health. Gostin supports criminal enforcement to redress the public health impact of counterfeit medicines and corruption’s corrosive effect on health. Although free trade and intellectual property rights may prompt a knee-jerk reaction of distaste in some, Gostin acknowledges the balance of interests in commerce, science, public health and human rights that global health law reflects. Moreover, he sounds a warning note to public health advocates inclined to criticise the World Trade Organisation without doing their homework: the public health community, he says, “must understand trade regulations in order to safeguard health and promote justice”.
Gostin devotes the book’s last section to current initiatives in global health law that form part of “the quest for global social justice”. These include an innovative, binding international “framework convention on global health” and a multilateral treaty that would provide incentives for research and development based on global health needs rather than pure profitability. The same treaty would provide opportunities to improve the innovative capacity of developing countries and expand the access of those countries to scientific knowledge.
Neither convention exists today. But in the words of Lao-Tzu, “a journey of a thousand miles begins with a single step”. Global Health Law makes a compelling case that the law’s time in the march towards global health is nigh.
Global Health Law
By Lawrence O. Gostin
Harvard University Press, 560pp, £40.95
Published 26 March 2014