Written by Brigit Toebes, University of Groningen, b.c.a.toebes rug.nl

This Blog Post sets out eight points for advancing further research in global health law as an emerging branch of international law. It is based on the overall findings from the Research Handbook on Global Health Law, which came out with Elgar Publishing early 2019.[1] What are the lessons learnt, to be taken on board in the new decennium?

1. There are major challenges in global health governance which merit a response from a legal perspective, including global and domestic health inequalities, the ongoing threat from infectious (communicable) diseases, the global increase of chronic (non-communicable) diseases, as well as the threats to health caused by environmental pollution and climate change. [2] Global health is, therefore, an important topic of international legal scholarship.
2. There is no agreement on the legal status of global health law. It has probably not reached the status and authority of existing international law branches such as international environmental law and international humanitarian law. Yet it is probably safe to conclude that it is an emerging branch of public international law, which is increasingly studied by scholars and practitioners from all over the world. It is important to invest more research into the contours and implications of global as an international legal field in the making.[3]
3. In global health law, human rights standards play a foundational role. Global health law should not undermine health and human rights law in the way it has been developed thus far.[4] Health and human rights law, reflecting both economic, social and cultural rights and civil and political rights, is a sophisticated field, which provides a range of legal tools that should be applied systematically and consistently in practice.
4. We should talk about the emergence of general principles in global health law. As a young discipline, such principles are currently not identified. As stipulated in Article 38 of the Statute of the International Court of Justice, such principles can emerge from domestic law, yet they may also emerge internationally (thus reflecting the increasing emancipation of international law). For such identification, inspiration can be drawn from international environmental law and international humanitarian law. In international humanitarian law, key principles are ‘humanity’ and ‘military necessity’, together reflecting a certain polarity. Does a similar polarity inherent in global health law? And what about health capability as an overarching principle in global health law?[5]
5. In global health law, soft law standards are important. They can serve as gap fillers where binding standards are absent, and they are more flexible and better equipped to bind non-state actors. At the same time, and looking at the success of the FCTC, the ultimate goal for a range of key health topics should probably be the adoption of legally binding standards. The Constitution of the WHO provides for considerable standard-setting powers, which can be used to advance important health objectives.[6]
6. In the health field, private actors are omnipresent. They vary from the pharmaceutical industry, private health insurers, to the tobacco and food and beverages industries. Given the nature of international law, it remains extremely difficult to address their responsibilities through international standards. It seems important to come up with creative solutions, in an interaction with scholars from governance and international relations.
7. We should explore the synergies and tensions with other branches of international law. Human rights lawyers should embrace international economic law rather than to shy away from it, and study the (potential) role of human rights standards therein. [7]  We should also study the interaction between public health as a concept in international economic law and the right to health as a human right. While there are overlaps, these two concepts are not completely congruent.
8. We should talk about strengthening existing standards and the adoption of new standards, including for example the International Health Regulations regulating the spread of infectious diseases.[8] For new instruments to be adopted, we need to familiarize ourselves with the political processes that have to be in place for such instruments to be adopted. We need strong norm entrepreneurs, supported by strong civil society movements to push for such instruments.

[1] Gian Luca Burci and Brigit Toebes, Research Handbook on Global Health Law, Edward Elgar Publishing, 2019.

[2] Inter alia, Chapter 2 in the book (Suerie Moon, Global health law and governance: concepts, tools, actors and power).

[3] See Chapter 1 (Brigit Toebes, Introduction).

[4] See Chapter 4 (Thérèse Murphy, Hardwired human rights: a health and human rights perspective on global health law).

[5] Chapter 2.

[6] See Chapter 16 (Gian Luca Burci, Global health law: present and future).

[7] Inter alia, Chapter 5 (Benn McGrady, Health and international trade law). See also the research conducted by Meaghan Beyer at the University of Groningen Faculty of Law.

[8] Stefania Negri, Chapter 10 (Communicable disease control).