UCL FACULTY OF LAWS


IGH







We gratefully acknowledge the Small Grant awarded by the UCL Grand Challenge of Global Health in support of this colloquium.

UCL Current Legal Issues Colloquium 2012 - Law and Global Health
2 - 3 July 2012

Speaker
Abstracts
Obijofor Aginam Mission (Im)possible? The WHO as a ‘Norm Entrepreneur’ in Global Health Governance

Although the Constitution of the World Health Organization (“WHO”) – which entered into force in 1948 – offered innovative and fairly radical provisions for the use of international legal mechanisms (treaties, regulations, soft-law) in international health work, those mechanisms have remained in the margins of WHO’s global health work in over 60 years of the organization’s history. While there was a significant improvement in the use of legal mechanisms, especially since the revision of the International Health Regulations (“IHR”), and the negotiation of the Framework Convention on Tobacco Control (“FCTC”), this paper argues that WHO is yet to maximize its potentials as an effective and efficient “norm entrepreneur” in the contemporary architecture of global health governance. In order to achieve one of its core objectives, and effectively “act as the directing and co-ordinating authority on international health work”, WHO should devise ways to re-invent its innovative legal/regulatory powers, and adapt them to the emerging health-related trends in economic globalization. To buttress this point more succinctly, I argue that that there has been a structural imbalance in the trade-public health mandates of the World Trade Organization (WTO) and WHO. In this context, trade agreements (TRIPS, GATS, SPS) legally enforced by the WTO would often trump public health including the human right to health. The paper offers perspectives on how WHO could effectively become an effective “norm entrepreneur” in global health governance, a new paradigm that has transformed the architecture of public health from the classic Westphalian (inter-state) structure to a post-Westphalian system characterized by multiple actors: nation-states, international institutions, businesses and corporations, charitable foundations, civil society, non-governmental organizations, and individuals (celebrities).
George Annas The Affordable Care Act in the US Supreme Court: Ideology, Politics, and the "Right to Health"

Two years after the passage of the Affordable Care Act (ACA), its legal challenge by 26 states (all but one with Republican Governors) reached the US Supreme Court. The Court was asked, among other things, to declare its "individual mandate" unconstitutional. Republican presidential candidate, Mitt Romney, also declared that on his first day in office he will "repeal Obamacare." The oral arguments before the Court in March 2012 did not go well for ACA supporters, and the "individual mandate" could be found to exceed the federal government's Commerce Clause authority (the vote would be the 5 Republican-appointed Justices against the 4 Democratic-appointed Justices).

This result would confirm that the current US Supreme Court has become a third political branch of government. This has multiple profound implications for the country. In the context of providing health care for Americans, its implications are, I will argue, clear: In all forums (including the Supreme Court), not just the Congress and Presidential elections, health care should be argued on the basis that it is a human right. This position seems mostly likely to prevail by pursuing an overtly political "health and human rights" strategy. The argument should not be waged solely in the arena of abstract Constitutional principles, but should be supplemented, if not supplanted, by illustrations of the impact access to decent health care has on the lives (and liberty) of real people.

Richard Ashcroft Should We Do Anything About Global Health Inequalities?

The existence of persistent social and economic inequalities in health has been acknowledged since the late 1970s, if not before. The publication in the UK of the “Black Report” has frequently been taken as the seminal event which led public health professionals and policy makers nationally and internationally to acknowledge that not only were health inequalities real, they were not explicable purely in terms of genetic or behavioural factors in the individual, but had real social causes and consequences. In recent years epidemiological and social policy researchers have developed sophisticated models and datasets which describe health inequalities within and between populations, and extensive evidence has been generated showing how such inequalities arise and persist. Indeed, some researchers argue that inequality itself is bad for one’s health, and so inequality in health may spiral.

Recent work on behalf of the World Health Organization by Sir Michael Marmot and his colleagues has summarised the international evidence on the social determinants of health, and the international as well as intra-national theory and data on health inequalities. They suggest in an important report that such inequalities may be closed “within a generation” if the right international and domestic policies are adopted.

In this paper I will examine the normative basis for policy to reduce international inequalities in health. It is important to give careful thought to the questions: Why should international inequalities concern us? Do they impose obligations on states or individuals to seek to reduce these inequalities? Do we have reason to think that health inequalities are more important, normatively, than other international inequalities? And what, if any, contribution could Law make to this normative project?

Jacquineau Azetsop The practice of uvulectomy as a violation of the child’s dignity and right to survival

Traditional uvulectomy is practiced in Israel, Saudi Arabia and several African countries. The practice of uvulectomy can be ritual and therapeutic. For the latter, sore throat is the common symptom. The consequences of this practice vary from poor health to death. Based on the Convention on the Rights of the Child and the field research carried out in Chad as well as on existing literature, this paper shows that uvulectomy violates children’s rights to protection from harmful practices, harmonious development and survival. The practice of uvulectomy is harmful and operated under standards of care inferior to those prescribed by the Convention. Uvulectomy undermines the child’s best interest and compromises his/her dignity and harmonious development.  
Belinda Bennett and Terry Carney Vulnerability: An Issue for Law and Policy in Pandemic Planning?

All of us will be vulnerable in the event of an influenza pandemic. Yet both within countries and between them, some will be particularly vulnerable, either as a result of medical vulnerability or through social and economic disadvantage. This paper asks whether the concept of "vulnerability" provides a useful ethical framework for the development of laws and policies in planning for pandemics. The paper considers both the universal nature of vulnerability and historic links between marginalisation and vulnerability. We argue for nuanced understandings of vulnerability that take account of social and historical disadvantage.
Hazel Biggs & Caroline Jones Vulnerability as a legal concept

Vulnerability is a global concept, defined by the OED as being ‘exposed to the possibility of being attacked or harmed, either physically or emotionally.’ Accordingly, the concept of vulnerability indicates a need to protect susceptible individuals or groups from exploitation. Who might be vulnerable is questionable since vulnerability is a socially constructed concept that differs depending upon the context (including social and intellectual disadvantages, environments within which people find themselves or the relationships they encounter). In this paper we will examine the conceptualisation of vulnerability in particular health care situations and consider how useful it is in a regulatory context.  
M. Gregg Bloche Doctors, Interrogators, & the New "Science" of Torture

Defenders of the Bush Administration's interrogation policy deny that they countenanced torture, and they insist that harsh methods saved lives. Critics of these methods say not only that they're unlawful; the critics contend that abusive interrogation yields unreliable results. They note that the Bush Administration based its approach on communist methods for extracting false confessions: this, they say, shows how misguided the Administration was. But, in fact, the architects of the Bush Administration's harsh interrogation policy built upon a plausible (albeit unproven) psychological model, and they took account of the risk of false confession. Key to this model is the distinction between inducing and shaping compliance. CIA and military practitioners of harsh interrogation built on communist methods for achieving the former, but they tried to shape compliance in a different way, to encourage truth-telling. Based in part on interviews with some of those who developed this strategy, this paper sets out the model they constructed, and reports on developments in the neurosciences that open the way for worrisome refinements. The account draws both from Gregg Bloche's 2011 book, The Hippocratic Myth, and from interviews and document reviews that he has conducted since.
Paula Braveman International Human Rights Law & Principles: Cornerstone for Defining Health Inequalities

In Europe and the U.S.A. over the past 15 years, the concept and measurement of health inequalities have repeatedly been challenged in the form of proposals to substitute purely technical criteria for their definition. These proposals essentially re-invent the concept of health inequalities in a way that includes all epidemiologic differences and hence removes the social justice content that is at the core of the notion. This has direct implications for resource allocation, and indirect implications for measurement (and hence for accountability). In the face of these challenges, it has been important to ground the definition of health inequalities in concepts and principles with a degree of universality. International human rights laws, agreements, and principles provide such a basis. Although globally, human rights may be honored more in the breach than in the observance, nevertheless human rights laws, agreements, and principles were hewed out over many years through a process with global participation. Virtually all governments have at least signed (if not ratified) the major human rights instruments that provide a basis for defining and measuring health inequalities; given that being signatory implies agreeing in principle, these instruments therefore represent, at a minimum, a global consensus on values and aspirations. A rights-based approach to defining health inequalities does not address all challenges, which are inherently political, but it goes a long way to toward addressing some of the most fundamental conceptual challenges.
Judith Bueno de Mesquita Maternal mortality and human rights: from theory to practice

Reducing maternal mortality is at the heart of the Millennium Development Goals. There is a growing literature on the integration of human rights into maternal mortality policies and programmes, including some initial findings of the value-added. Recently, the topic has been addressed in Human Rights Council resolutions, a mission to India of the Special Rapporteur on the right to health, and decisions by CEDAW and courts in India. These clarify States obligations, and demonstrate how human rights can enhance accountability for maternal mortality. The UN Secretary General identified accountability as a missing link for reducing maternal deaths. Human rights have a key role to play, yet challenges remain, including enforcement.
Scott Burris Global Public Health Law Research: Opportunities and Challenges

From a social-epidemiological point of view, law can be described as influencing population health in two broad ways: as an influence on the social determinants of health, and as a mechanism through which those determinants operate to sort people to better or poorer outcomes. Public health law research is the scientific study of the relationship of law and legal practices to population health. This emerging multidisciplinary field has been growing in the United States with both foundation and government support. Global expansion of the field offers some value to the field of health law, but also faces challenges. This paper uses the work of the UN’s Global Commission on HIV and the Law as a case study of the need for empirical health law globally – and the challenges to expanding the field.

The Global Commission was set a task rooted in (claims of) empirical fact – essentially that laws and legal practices are having a significant negative influence on HIV infection and prevention. The effect was said to be unfolding in relation to a range of behaviors regulated by law or occurring in its shadow, including injection drug use, commercial sex work, gender-based violence and homosexuality. There could hardly be a stronger claim for the importance of law to health, but assessing it posed substantial difficulties for health law scholars and scientists. Major problems included a lack of access to the law itself (legal data); the concentration of behavioral science data at the qualitative and observational side of the spectrum of methodological rigor; a general lack of awareness, interest or capacity among health researchers to study legal influences; the absence of accepted standards or transparent processes for weighing limited data in a policy context; and a shortage of people with the training/ability to integrate legal and scientific analysis in credible manner. These gaps point to the need for the further development of empirical health law capacity.

Kent Buse and Lawrence Gostin Social Mobilization Toward a Framework Convention on Global Health: From the AIDS Movement to the Right to Health

Global health justice is a defining challenge of our time, but has thus far been elusive. A global coalition of civil society and academics – the Joint Action and Learning Initiative on National and Global Responsibilities for Health (JALI) – has formed an international campaign to advocate for a Framework Convention on Global Health (FCGH). Endorsed by the UN Secretary-General and Executive Director of UNAIDS, the FCGH would re-imagine global governance for health, offering a new vision for the post-Millennium Development Goals era.

The only sure pathway to an innovative global health treaty is through a bottom-up campaign of social action, drawing on the rich history of the AIDS and other movements. Here, we reflect on the elements of a strategy for social mobilization around the human right to health in light of the key modalities of a FCGH.

Carlos Caceres Appropriate legal frameworks and protection of human rights are critical enablers of effective responses to HIV among MSM and transwomen in concentrated epidemics

A study we conducted in conjunction with UNAIDS in 2008 showed that legal frameworks concerning sexual orientation and gender expression varied greatly throughout the world, from those highly prohibitive to those expressing recognition and offering protection; such frameworks tended to be similar according to the legal tradition that formed their base and to the legal trends in each region. That report also showed that the effective situation of human rights was not defined by the legal frameworks, and that it could be better (given not-enacted laws) or worse (often due to prevailing stigma). Subsequent work had shown that appropriate legal frameworks and the protection of human rights of sexual/gender minorities are critical to the roll-out of effective responses to HIV among MSM and transwomen in concentrated epidemics. The paper further describes the inclusion of structural approaches to address such critical enablers from a combination HIV prevention perspective.
William C. Cockerham & Geoffrey B. Cockerham International Law and Chronic Disease

This paper examines why international law has largely ignored the causal factors associated with chronic diseases—despite the fact that human mortality throughout the world is primarily due to chronic ailments such as heart disease, cancer, and diabetes. Since 1851 and the convening of the International Sanitary Conference in Paris, the focus of global health governance has been almost exclusively on the control of infectious diseases. Until recently, non-communicable or chronic diseases have not been identified as a problem requiring an international legal response. The only major step in this direction was taken in 2003 when the World Health Assembly of WHO adopted the Framework Convention on Tobacco Control (FCTC), which has now been ratified by 172 states. The FCTC contains a number of regulations concerning the use of tobacco that states are obligated to follow, including bans on tobacco advertising, promoting public awareness about the health risks of tobacco use, regulating the contents of tobacco products, encouraging states to enact smoke-free workplace laws, enforcement measures against tobacco smuggling, and raising taxes on tobacco. Although international law now exists with respect to curtailing health problems associated with tobacco, other chronic disease risk factors, such as poor diets and alcohol use, have yet to be addressed. Consequently, this paper investigates why the only measures in international law pertaining to chronic disease currently exist for tobacco use and nothing else.
John Coggon Global Health, Law, and Ethics: Human Interests, Fragmented Sovereignty, and the Limits of Universalism

Like public health, global health has assumed several meanings, the most pertinent entailing a broad social mission directed to the improvement of people’s health. However, in contrast with public health, the ethical concerns supporting global health’s mission are greatly lacking potential to channel through a central regulatory structure that can unite purposes and make obligations enforceable. This paper explores the ethico-legal background, and presents and examines two alternative situations found in critical analyses of global health: one seeks to centralise authority and coordinate activity; the other seeks to optimise health outcomes with many ‘anarchic’ and ‘non-public’ mechanisms. Whilst the former would be more desirable, it is argued that strategies given less centralised approaches remain crucial to practical arguments in global health.  

Anthony Costello Women's groups, human rights and birth outcomes in poor rural communities

Women's groups working through a facilitated community action cycle based on the principles of participation, empowerment and human rights have been evaluated for their effects on birth outcomes in poor rural populations.

In this paper I shall review the results from five large cluster randomised controlled trials in Nepal, India, Bangladesh and Malawi to examine the impact and sustainability of women's groups on maternal and newborn death rates, postnatal depression and other non-health benefits such as agency and environmental protection.

The data show that this approach is more powerful than health service focused interventions in reducing mortality in poor rural communities, is cost-effective using World Bank criteria, and has many beneficial non-health outcomes. Experience also suggests that the groups continue after external support is withdrawn, and build the voice and political influence of women. The paper will discuss mechanisms by which women's groups have their effect.

Sylvie Da Lomba The Council of Europe and Irregular Migrants' Right to Health Care: Is the Council of Europe Falling behind International Standards?

Immigration policy and resource considerations are firmly embedded in states' policies on health care provision for irregular migrants. Worryingly these considerations have permeated the European human rights system. In stark contrast with the European Committee of Social Rights, the Strasbourg Court has shown receptiveness to States' concerns over limited resources and migration 'floodgates'. Its case law on the expulsion of the seriously ill suggests that states' obligations should be set against such concerns. The paper discusses the consequences that this may have for the level of protection afforded to irregular migrants' right to health care within the Council of Europe.
Angus Dawson ‘Global public goods’ and normative claims about global health 

There is an increasing tendency for international organisations, academics and public health practitioners to refer to ‘global public goods’ (GPGs) in literature about the health of the world’s population. GPGs are clearly defined to invoke association with classical public goods (PGs). One reason for this could be to offer a possible justification for international law covering such GPGs, as a parallel to the appeal to PGs in domestic law. The main characteristics of PGs are disputed, but commonly invoked properties include: nonexcludability, indivisibility, and collectivity. The key argument in favour of trying to create and maintain PGs is based upon the benefits of the positive externalities that flow from such goods. There is little doubt that at least some public health activities can produce such goods (although perhaps not as many as some think). At least some proposed candidate GPGs (e.g. poliomyelitis eradication) can be characterised as PGs in this classical sense. However, in other cases the use of the term GPG seems to be a way of smuggling in normative claims about our obligations to act in relation to improving global health. In this paper I argue that the use of the term ‘GPG’ should be dropped for three reasons. First, where the term might be thought to be useful it adds nothing to the existing concept of PGs. Second, normative arguments about global health cannot be settled by easy appeal to GPGs. The moral case for action will still need to be made on a case-by-case basis. Third, if the term can be dismissed easily as mere rhetoric, talk of GPGs might even undermine the force of legitimate arguments about our obligations in relation to global health.
Michal Engelman Health and Aging in a Global Perspective: Demographic Challenges for Justice and Development Policies

Due to celebrated survival improvements and fertility declines, aging has quickly become a global phenomenon. This paper will review global aging trends, presenting a complex demographic picture of increasingly heterogeneous older populations. Low-income countries house the majority of the world's older population, but across and within countries, the circumstances of older people vary widely. Some enjoy longer periods of good health, well-being, and the capacity to contribute to their families and societies, while others are burdened by illness, disability, and dependency. Low-income nations increasingly cite population aging as "a major concern," but older people remain a low priority on national and international development agendas and are often excluded from economic development, healthcare, and education opportunities. Concerns about age discrimination, social marginalization, neglect, abuse, and violence have raised awareness of older people's vulnerability, yet they rarely receive attention in the area of civil and political rights, and unlike other vulnerable groups, are not protected by a specific and binding human rights convention. The paper will discuss documents that have aimed to shape international policy on aging (including the 1982 Vienna International Plan of Action on Ageing, the 1991 United Nations Principles for Older Persons, and the 2002 Madrid International Plan of Action on Ageing), describe gaps in the protection of older people's human rights under existing instruments, and contribute to ongoing efforts to craft a policy framework that views older persons as holders of rights rather than subjects of charity.
Tom Faunce Global Solar Fuels and Food- Challenges for Bioethics and International law

Research is now considerably advanced in using nanotechnology to not only replicate but improve upon the process of photosynthesis (in very basic and simplified terms the creation of fuel and food using sunlight, water and carbon dioxide). Inevitably this will create issues about the extent to which the process of photosynthesis (like that of the human genome or biology in general) is capable of being patented. While patents are a creature of domestic legal regimes, the WTO TRIPS agreement and numerous bilateral trade agreements have shown how global patent standards may be implemented that may or may not hinder or promote the roll out of new technologies such as artificial photosynthesis. The hypothesis explored in this paper is that Bioethics and International Law are normative systems capable of shaping governance of global solar fuels and food towards an effective balance between public and private interests. Core issues that will be examined in this context include whether natural and artificial photosynthesis can fall within the concept of common heritage of humanity and also whether an international treaty or declaration is an appropriate regulatory vehicle for the establishment of a macroscience Global Solar Fuels and Food Project.
Charles Foster & Jonathan Herring What is Health?

Global declarations on health rights tend to assume that it is obvious what ‘health’ is, and to define it broadly in terms of physical and psychological well-being. But the model usually used (a) assumes that it is possible to define the well-being of X in individualistic terms without reference to that of Y or Z; and (b) is essentially discriminatory, suggesting that the only acceptable form of being is a type of being that conforms to presumptions about the good life.

In this paper we take issue with both (a) and (b). We suggest that ‘health’ must entail embracing fully the circumstances in which we find ourselves, and that accordingly (for instance) a healthy 80 year old may be one with untreated osteoarthritis of the hip, prostate cancer and Alzheimer’s disease. We contend for a communitarian definition of health which recognises our quintessentially relational natures. We outline some of the corollaries of this position for, inter alia, healthcare resource allocation.

Sara Fovargue Exposing the limits of the law?: Biotechnological challenges to global health

Some biotechnological advances pose risks to individual and global health such that they may not be containable within legally appropriate and ethically acceptable frameworks. Without sufficient regulatory structures, (how) can we respond to biotechnologies which expose the boundaries and limits of law’s reach, particularly given global health tourism? Xenotransplantation is one example; if clinically used there is an inherent risk of (un)known infectious diseases being transmitted to xeno-recipients and others. Pre- and post-xenotransplant surveillance, international collaboration and co-operation are thus imperative; but can an effective regime be devised and implemented given the difficulties of monitoring global risks, and (how) can it be enforced?
Sofia Gruskin Law, Human Rights and Global Health: Moving from the Conceptual to the Empirical

As the field of global health has exploded in recent years, attention to law has come in many forms ranging from engagement with the role of international law in setting applicable norms and standards to the implications of national laws and policies as these affect the health of individuals and populations, in particular those from marginalized and disadvantaged communities. Importantly, international legal commitments can serve as a check against national laws and policies which do not conform to international consensus and are harmful to health. Work to move from the conceptual to the empirical in this area has been most developed around laws relating to HIV and AIDS but increasing efforts are being developed in the areas of sexual and reproductive health, and sexuality more broadly. This paper will review several current large-scale efforts, methodological challenges and the implications of this work for the global health field going forward. By identifying dissonance between international standards and national laws and policies, ultimately a refocusing of efforts should be possible, aiding governments to meet their international obligations and ensuring appropriate environments for health and well-being around the world.
John Harrington The Struggle for the Right to Health in Kenya

In 2010 Kenyan citizens approved a new constitution by referendum. This moment was widely seen as founding a second republic to succeed to that established on the departure of the colonial power in 1963.The genesis of the new constitutional dispensation lies in a long struggle of popular movements and civil society organizations against an oppressive post-colonial regime. An important feature of the new constitution is its explicit recognition of the social and economic rights of citizens, including the right to the highest attainable standard of health. The constitution furthermore provides that international conventions and treaties ratified by the state form a part of domestic law. As a result international human rights instruments recognizing a range of health rights may now form the basis for constitutional claims in the Kenyan courts. These substantive developments are augmented by a significant widening of standing for litigants and amici curiae. As such Kenya joins a growing number of jurisdictions in Africa and elsewhere which, although marked by massive poverty and inequality, have repudiated the notion that social and economic rights are not cognizable or enforceable by law.

This paper examines past and present struggles for the right to health in Kenya. It has three parts:

1) It considers the process which led to the recognition of a right to health in the new constitution. In particular it considers the extent to which social and economic rights formed a focus for civil society campaigns during the democratization process. It also examines the extent to which the recognition of such rights was resisted by powerful political and economic interests.

2) It seeks to clarify the normative content of the health rights provisions of the constitution through a detailed comparison with the case law and analysis in relation to s.27 of the South African constitution and Article 12 of the International Covenant on Economic, Social and Cultural Rights.

3) It examines the manner in which constitutional guarantees of health rights have been deployed in litigation, legislation and policy making since 2010. In particular it focuses on the career of the Kenyan Anti-Counterfeiting Act 2008. The latter is widely claimed to have a significantly restrictive impact on access to generic medicines. It was subject to intense lobbying by health and human rights NGOs during its passage through parliament. Its provisions are currently the subject of a constitutional challenge on the grounds inter alia that they violate the rights to life and health of people living with HIV/ AIDS.

The paper takes as its overall theme the notion developed in the work of Neil Stammers and of Upendra Baxi that human rights are created and recreated through social processes of activism and struggle. This is opposed to a diffusionist model which sees rights as spreading out to the Third World from the ‘core’ of developed countries and the international institutions and to a hierarchical model which sees concrete rights as the specification of lexically superior norms in law and philosophy.

Mark Henaghan Global Health, Emerging Technologies and Indigenous Peoples

The quest for global health led to seeking answers from indigenous peoples around the world thought to have genetic makeups that could have provided the secret to global health issues such as cancer and diabetes. This paper will analyse five case studies of indigenous peoples; Havasupai, Guaymi, Hagahai, Solomon Islands, and Maori. Historically, the genes and cells of indigenous people were used as a means to a scientific end, without fully respecting the rights and heritage of indigenous peoples. The paper concludes with a framework for working with indigenous peoples based on research in New Zealand with the Rakaipaaka people.
Mark Heywood MAKING SENSE OF SECTION 27: is a rights-based budget possible within South Africa’s ‘available resources’?

Section 27 of the South African constitution guarantees “everyone” the right of “access to health care services”. It requires that the state takes “reasonable legislative and other measures, within its available resources” to progressively realise the right. The subject of the paper is a question. But to answer it examines a series of further questions...
  • •What does the South African Constitution have to do with health and how has SECTION27 contributed to the realisation of the right?
  • What do we mean by a rights-based budget? And how should such a budget be developed?
  • Are there sufficient resources available (as opposed to available resources) to budget for health on the basis of rights, rather than fiscal constraints?
Stephen Holland What’s wrong with libertarian paternalism?

Is the State justified in limiting individual liberties to protect and promote the health of populations? Liberals can justify liberty-limiting public health interventions by appeal to the harm principle, which allows the State to impose on individuals in order to protect third parties from harms. For example, legislation banning smoking in public places is justified on the liberal grounds that it protect non-smokers from the harmful effects of passive smoking. But liberals are much more uneasy about the State limiting an individual’s liberty for his or her own sake. This paper considers a response to this unease. ‘Libertarian paternalism’ – known more informally as ‘nudge’ – sounds oxymoronic, but advocates such as Richard Thaler and Cass Sunstein argue that agents do not always choose in their own best interests, that there is no viable alternative to acting paternalistically towards others, and that paternalism does not always involve coercion. Hence, libertarian paternalism is plausible and involves constructing ‘choice architecture’ in order to ‘nudge’ people towards options that benefit them without limiting their freedom of choice. The paper argues that standard objections to libertarian paternalism are unconvincing. Furthermore, what is really problematic about the approach has implications for our thinking about global health issues.
Jeffrey Kahn Health-related Research on the Web: Challenges for Global Research Protection Policy

The rapid growth of creation, storage and collection of data on the web pose new challenges for standard approaches to privacy and human subject protection regimes. In addition to what have become known as "big data" projects, health researchers are increasingly turning to the web to conduct basic biomedical research, clinical research, and public health surveillance and research. The standards of consent and privacy protection range from nearly none at at all to conventional opt-in models. I will attempt to articulate what I see as some of the major challenges posed by this research for ethics, policy and law on a global level, including (1) what standards of privacy ought to be applied to the range of health-related research uses of web-based data, and which governmental policies ought to prevail, (2) what are the appropriate conceptual models and policy approaches for consent of research participants, how do and should they interact with other protection policies being promulgated for the web (e.g., privacy, consumer protection, etc.) and which governmental policies ought to prevail, and (3) do human subjects protection paradigms need to be altered, augmented, or reconsidered altogether for the context of web-based research?
Meri Koivusalo Policy space for health in the context of emerging European trade policies

The paper will discuss challenges of international trade and investment negotiations and agreements to health systems and in particular matters of concern with respect to domestic regulation and regulation in a more commercialized context of provision of publicly funded health services in European Union member states. While European Union has competence in commercial policies, European Member States remain responsible for organisation, financing and provision of health care services to their citizens. The paper will discuss changes in the field since negotiation of the Lisbon Treaty as well as issues that emerge in the context of negotiation of trade and investment treaties in for health services cost-containment and regulation. Case studies and examples are presented from issues that relate to negotiations of the EU-Canada FTA (CETA) and CARIFORUM EPA from a perspective of a small European Union Member State (Finland).
Florencia Luna Global health: an immutable moving target

Every year 8 million children die before they reach the age of 5. More than 300.000 women die in pregnancy or childbirth and more than 4 million people die of AIDS, malaria and tuberculosis. On one hand global health seems a permanent irresoluble issue: an immutable pending debt; on the other hand, it shows a complexity and variance that makes of it a moving target. It has been extensively argued about the importance of global health and on the role and responsibilities of the wealthiest. Even if we can argue that there is the need of more resources, in the last years there have been funding and resources. For example, in the past last two decades international global health assistance has quadrupled. Still the situation is not solved. Why global health continues to lack? Why is it that it continues to be an immutable debt? Part of the problem may be that addressing global health is as difficult as shooting to a moving target where many factors interact and make of it a very difficult issue to be solved. In this paper I want to examine some of the empirical issues that make of this a difficult task.

Gwendolyn Majette Global Health Law Norms and the PPACA Framework to Eliminate Health Care Disparities

The existence of health care disparities for racial and ethnic minorities is a longstanding problem in the United States. According to the Institute of Medicine “healthcare disparities are differences in health or clinical outcomes that are not attributable to clinical appropriateness or patient preference.” Health care disparities have multiple causes including barriers to access to care. The consequence of encountering barriers to care, means that racial and ethnic minorities have disproportionately worse health.

In 2010,Congress passed the Patient Protection and Affordable Care Act which President Obama signed into law on March 23, 2010. Passage of this piece of legislation provides the US with a significant opportunity to eliminate health care disparities. Elimination of health care disparities among racial and ethnic minorities is not simply a national concern; it is also of international concern. Health and human rights norms impose obligations on countries to address discrimination and inequality. Both the World Health Organization and the United Nations Special Rapporteur for Health recognize the inequitable treatment of disadvantaged groups across the world as an issue of international concern.

This article uses health and human rights norms to examine PPACA and the framework that it creates to eliminate health care disparities in light of the United States' global health law obligations. The article concludes with my recommendations on additional legal steps that the United States can take to reduce health care disparities for racial and ethnic minorities in light of its global health law obligations.

Hadii M. Mamudu Tobacco Industry Use of International Trade and Investment Agreements against Health Policy

Tobacco use kills 6 million people worldwide and the WHO Framework Convention on Tobacco Control (FCTC) was developed to deal with it. Trade/investment vs. health, which has been an issue in global tobacco control since the 1980s presents challenge to implementation because tobacco companies have resorted to lawsuits based on bilateral and regional trade/investment agreements to challenge tobacco control measures. This strategy of the tobacco industry has global public health implications in undermining scope of FCTC implementation and “chilling effects” on states’ efforts to develop innovative health policies to reduce global tobacco epidemic and improve health of populations worldwide.  
Benjamin Mason Meier Global Health Takes a Normative Turn: The Expanding Purview of International Health Law and Global Health Policy to Meet the Public Health Challenges of the 21st Century

With international health law conceived as a means to protect independent state interests against global health threats, this paradigm of mutual self-interest is being challenged by a new normative reality - with global health policy pursued as a means to realize a more just world. In seeking justice in an increasingly globalized world - through international legal agreements among states and global health policies among state and non-state actors - norms are progressively framing the global health response. This presentation explores a normative turn in global health, tracing the history of international health law through the lens of realist and constructivist theories of international relations. As norms increasingly provide legitimacy to global health governance, this research analyzes the expanding influence of norms on international health law and global health policy, advocating additional legal research on the impact of norms and outlining a research base for normative policy analysis in global health.
Jean McHale & Sheelagh Mc Guinness Health Crimes and Globalisation: a case for extra-territorial jurisdiction and enforcement?

The criminal law has been increasingly utilized over the last twenty five years in England and Wales in the regulation of health care. Ethical controversy, public debate and condemnation have been followed by specific statutory criminal prohibitions. From organ selling, to commercial surrogacy, to human reproductive cloning the criminal law has been steadily employed as a means of curtailing patient autonomy and clinical decision-making. Juxtaposed against this over the same period of time globalization has opened up patient choices. ‘Health tourism’ is a term that has been coined to describe travel outside of a jurisdiction to access medical services. Reasons for it range from expense, to pleasure, to accessing expertise. In this paper we focus on individuals who travel abroad, or assist another to travel, to access health services that are unlawful in their home jurisdiction. We consider how the criminal law can and should respond to such individuals. 
Colin McInnes and Anne Roemer-Mahler  Global Health Governance

Over the past two decades the narrative of ‘heath is global’ has emerged to now assume a position of dominance. This narrative originated in the argument that, since ‘disease knows no boundaries’, globalization had qualitatively changed the ability and speed with which diseases could spread. But it is now equally applied to non-communicable diseases (tobacco, CVD, diabetes etc) and to structural factors (access to medicines, mobility of health professionals etc). This poses a challenge to the governance of health, which had previously been located at the national level with some limited international dimensions: if health is now global, then the governance of health should reflect this. We argue however that there is no single underlying logic to global health governance. Instead a variety of frames are in operation which reflect and reinforce competing visions of global health. The proliferation of actors and interests are therefore as much a symptom of this as a reason for the lack of progress. Global health governance is therefore an arena of political competition: the sort of problems encountered are not amenable to rational, value-neutral analysis leading to an optimal solution, but exist in an arena where different values, interests and knowledges create competition and contestation.
Eric Millstone Science and politics entangled in global food safety law

Under the provisions of the treaties that established the World Trade Organisation (WTO), minimum food safety standards for internationally traded foodstuffs are set by the Codex Alimentarius Commission (aka ‘Codex’). Codex was established in 1963 by the World Health Organisation and the UN Food and Agriculture Organisation, but has only had a legislative rather than advisory role since 1995, since when Codex standard-setting procedures have come under increasing scrutiny. This paper will review debates about the interactions between science and policy in Codex decision-making processes, and highlight the conditions under which science-based policy-making can achieve and reconcile scientific and democratic legitimacy.
James Orbinski Justice, Law and Global Health
Global Health in its broadest conceptualization connotes well-being in a state of justice. Reducing injustice and enhancing global health is a matter of practical action, and the use and construction of law is central to this process. Dr. Orbinski will draw on his twenty five years of international experience to argue that global health law is most effective when it has a plural grounding in pragmatism, the high ideals of humanity, human rights and the pursuit of the public good. He will argue for a conception of law in relation to global health that is beyond positivism (which holds that law is only made by the legislature), to one that sees law as most powerful when it is a function of a communicative process over time between elites and politically relevant groups.
David Patterson Rights-based approach to HIV in Middle East and North Africa

The HIV epidemic in the MENA region continues among key affected populations: men who have sex with men, injecting drug users, sex workers, and their sexual partners. In all countries, effective prevention measures are constrained by a disabling legal environment. People living with HIV face discrimination and legal issues relating to property inheritance and child custody. Key populations are hard to reach because their sexual behavior and drug use is criminalized. But, as elsewhere, police have the discretion to act, and the applicable law is often unclear or not well known. This paper explores recent work in the region to strengthen legal services and rights.
Patricia Peppin Off-Label Drug Uses and Knowledge Deficits

Drugs are approved for use in certain populations for certain purposes. Physicians are permitted to prescribe off-label, beyond these limits. This paper examines how deficits in knowledge, through research exclusions, failure to disclose, and biased presentation, affect public health.

Exclusions from drug testing of elderly patients, children and pregnant women expose patients to unknown harms. The risk of assuming safety and efficacy is illustrated by the heart valve problems created by the untested diet drug combination Fen-Phen. These effects are compounded by limitations in the regulatory oversight of promotion and disclosure. The knowledge deficits apparent in off-label uses demonstrate the need for enhanced regulation of testing and representation.

Kerry Petersen International Commercial Surrogacy: An appraisal of key legal and policy developments in permissive and prohibitive regimes

International commercial surrogacy is a fast growing industry which reflects a trend towards less negative views concerning non-altruistic surrogacy. It is also a sign of shifting family patterns where the number of children belonging to traditional families consisting of a married mother and father has declined. International commercial surrogacy has become a global health issue, because although most jurisdictions prohibit this practice the demand is increasing and people are prepared to ‘cross borders’ in order to access these services in permissive jurisdictions where commercial surrogacy is not outlawed. This paper discusses key legal and public policy issues and the impact of unregulated practices on the rights of children, surrogate mothers and the intending parents.
Maya Sabatello Children’s Agency in Healthcare Settings: Rights, Participation, and the CRC

This paper examines adolescences’ right of participation in the context of healthcare settings. Grounded in Article 12 of the Convention on the Rights of the Child (CRC), this right is considered the cornerstone –and most revolutionary provision –of the treaty. Analyzing leading court cases from various countries revolving around the question of children’s consent and participation in decisions regarding medical treatment, I examine how the issue of child’s capacity in this context has been considered. What were the courts’ rationales in accepting or rejecting the child’s position? To what extent are they grounded in the individual child’s capacity? And how is this capacity determined anyway? This examination is particularly illuminative considering that the question of the child’s right to give an informed consent to medical treatment was explicitly discussed during the negotiations of Art 12, and yet the repercussion of such consent (or refusal to consent) may be high. The argument advanced is that while protection and care for children is certainly essential for their development, courts’ contemporary constructions of children and childhood in healthcare settings may jeopardize the recognition of children as social agents that has been achieved in the CRC.
George Smith Global Health Law: Aspirational, Paradoxical, or Oxymoronic?

Although the notion of Global Health Law is not only an aspiration, A paradox, and an oxymoron, my paper will demonstrate how this situation in reality may be resolved by securing the ongoing development of a new Constitutionalism which relies upon Human Rights Law to fill in the "gaps" in national laws which detract from efforts to secure a "right" to the high sustainable standard of health or to health care.

The 1998 U.N. Universal Declaration on the Human Genome and Human Rights and the 2005 Universal Bioethics Declaration are illustrative of the Foundations from which principles are enunciated and normative standards set For recognizing a global constitutional ethic to secure Health Law. Challenging this positive force, however, are economic realities within Third-world states which inhibit healthful living guarantees together with the WHO's geo-political inability to re-calibrate the standards of progressivity for enforcement of healthcare "rights."

Maria Stuttaford, Damaris Fritz, Leslie London, Wendy Nefdt, Vanessa Reynolds, Glynis Rhodes, and Lulama Sigasana Weaving Conceptual Threads to Illuminate Implementation of the Right to Health: the Learning Network for Health and Human Rights, Western Cape, South Africa  

The Learning Network for Health and Human Rights (LN) is an assemblage of five civil society organizations (CSOs) in Western Cape, South Africa and three universities. Initiated in recognition of the undocumented knowledge that CSOs have of how to implement the right to health, the LN has been functioning for four years, is governed by an Executive Committee drawn from CSOs and academic institutions and has achieved several research and practice based interventions designed to enhance and extend the implementation of the right to health. The LN works alongside but outside of the judicial system, utilizing international, regional and national frameworks to advocate for the right to health, develop policy and programs, monitor the state and address past human rights violations. The principles of the UN General Comment 14 on the right to health (accessibility, availability, acceptability and quality, participation, accountability and non-discrimination) guide both how the LN functions as well as the work it undertakes. Rooted in critical theory, the LN research programme has followed a participatory action research design and has evolved by responding to the learning objectives and research objectives identified by CSOs and academics. While objectives are set at annual strategy meetings, the LN is fluid and responsive about how to meet the objectives. This paper builds on practice to date and emerging discussions in the LN to propose a conceptual framework to deepen our understanding not only of the LN, but collective action and collective rights more broadly.

The paper begins by presenting each of the five CSOs individually as a way to illustrate how the concepts are played out in practice. It is argued that the Cape Metro Health Forum can be explained utilizing spheres of influence; that Women on Farms Project uses a gendered approach; that Epilepsy South Africa uses a social theory of disability approach; The Womens Circle uses theories of adult education and Ikamva Labuntu adopts notions of sites for health rights. While these are the dominant concepts within each organisation they are not unique but rather are interwoven across the LN. The paper brings these concepts together to develop an overarching conceptual framework for the assemblage of CSOs and universities comprising the LN. Gaps in the conceptual framework are identified, which will feed into future research and practice strategy meetings to support the ongoing development of the LN. In addition, it will be argued that such a conceptual framework is also useful for a wider understanding of civil society action on the collective right to health.

Thaksaphon Thamarangsi Regulation on Alcohol Marketing in Thailand: Legal Loophole and the Call for International Legal Framework

Alcohol marketing is the major tool of the alcohol industry to introduce their products, as well as maintain and expand their market share. Particularly for youth, alcohol marketing associates with drinking initiation for those non drinkers and increase in consumption among current drinkers. Evidence shows that marketing promote both brand-specific and general consumption. The alcohol industry has increased its marketing budget overtime, in particular to the emerging market developing countries, where overall alcohol consumption is below those of high income countries, and thus high profitability when taking into concern the rapid economic growth. Alcohol marketers in the modern time employ integrated marketing communication to remind about their brands to every aspect of their audiences’ life. These techniques include conventional mass media advertising and increasingly important below-the-line marketing, such as event sponsorship and high-technology media. With concern on youth drinking and drink driving situation, Thailand strengthened the alcohol marketing regulation in 2003, so-called the partial ban law, and recently updated by the Alcohol Control Act 2008. These laws allow small, but later significant, room for certain natures of advertising as the exempted areas for regulation. The alcohol industry, both domestic operators and transnational giants, enjoy the legal ambiguity and deploy the legal exemption as their main marketing outlets. These techniques include, but not limited to, sponsorship for sport, music and cultural events, surrogate product advertising, corporate social responsibility campaign, and indirect linkage to beverage brand. It is perhaps not too exaggerated to conclude that current alcohol marketing in Thai society is as prevalent and aggressive as the time before the laws were introduced. Moreover, the legal content of the regulations are by far unable to address both cross-border marketing and stateless high technology marketing, for example through internet and social network. Concern on the increasingly complicated and sophisticated marketing methods raises the need for the legal-binding international policy on alcohol, for example in the mould of the Framework Convention on Tobacco Control.
Matthew Weait Progressive Punitiveness: The Scandinavian and Nordic Response to HIV

Denmark, Finland, Norway and Sweden have the lowest HIV prevalence in Europe. They are frequently cited as exemplars of progressive and egalitarian economic and social policy and praised for their commitment to supporting developing countries with endemic HIV. In surveys, their nationals consistently manifest less punitive attitudes towards those who break the law than do those in other countries, and they are countries which have the lowest rates of imprisonment in Europe. At the same time, the Scandinavian and Nordic nations have the highest national rates of conviction and imprisonment for HIV-related offences (of transmission and exposure) than almost all other European countries. This paper explores the reasons for this apparent paradox. It suggests that strongly embedded social democratic values in the Scandinavian and Nordic nations, combined with high levels faith in law and legal institutions and a strong public health tradition, contribute to an environment in which people believe that it is the state which should, and will, protect them from harm and that they bear little or no personal responsibility for protecting themselves. An effect of this is the legitimation of coercive responses to PLHIV and the criminalization of non-deliberate HIV transmission and exposure, contrary to the approach advocated by UNAIDS and the UN Special Rapporteur on the Right to Health. Based on research undertaken in the spring of 2012 the paper considers the impact of criminalization on PLHIV in these four countries, and how civil society organisations, activists and medical professionals are combining to reform and reduce the adverse impact of criminal law on HIV prevention efforts and HIV-related stigma.
Jonathan Wolff The Content of the Human Right to Health

The Covenant on Economic, Social and Cultural Rights sets out a right to the 'highest attainable standard of health'. Critics have questioned how this is to be understood, especially in relation to resource-poor settings. A globally highest attainable standard appears utopian, while a locally highest attainable standard appears defeatist. Here I consider whether the human right to health should be interpreted using Henry Shue's notion of a 'standard threat': that the human right to health protects against 'standard threats' to health, and how in turn this notion is to be understood.