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October 14, 2015

Responding To: WHO Director-General Continues Georgetown's Conversation on Global Governance

The Indispensable Role of Law

Oscar Cabrera and Susan C. Kim

As health lawyers, we were gratified when Dr. Margaret Chan championed the essential role that law plays in the future of global health governance during her Global Futures lecture.

We would, however, go one step further – law is not merely essential to the future of global health governance, it is indispensible.  The reason for this is perhaps deceptively simple – a house cannot be built without a foundation, and the foundation for governance at any level – local, national, regional, or global – is law.

When we write of the “law,” we mean two distinct, but interrelated concepts.  The first is more familiar – it is the text enacted by legislatures, implemented through regulation and policies, and litigated in courts.  The second is more intangible – the rule of law.  A well-functioning and sustainable system of governance requires both.

In global health, the tools exist to build technical legal capacity throughout the world.  At the national level, there are arguably enough comparative legal frameworks for countries without strong public health laws to develop them.  Countries can and do enact public health codes that govern the spread of disease and regulate food and drugs.  Globally, treaties and conventions order these matters between nations.  The best types of legal interventions in health (if law can be assessed in that manner) are those that are offensive rather than reactive; this parallels public health interventions.

The second concept of law – the rule of law – is significantly more difficult to capture and cultivate, but infinitely more important.  The premise is that a state is governed by legal principles as opposed to individual caprice.  At its core, it is a measure of faith.  Faith by the citizenry in their country’s ability to ensure the lights stay on, but also faith that a country will be able to mobilize an effective response when the lights go off.  Faith, however, is earned – neither coerced, nor taught.  It is long and rigorous process that requires care, discipline, and leadership.  Any gains made can easily be undone.

This existence of the rule of law is foundational not just to a health system, but any sustainable system of governance.

It is therefore no coincidence that countries with weak health systems have weak rule of law – the former is a consequence of the latter.  This is true with national health systems, and also with the global health system.

Dr. Chan spoke eloquently of the fragmented global health system.  WHO, the Global Fund, GAVI, non-governmental organizations, private foundations, bilateral agencies, industry – the global health arena is saturated with too many actors, competing for limited resources with no distinct authority or constituency.  This has led to inertia, recklessness, limited accountability, and duplication of effort, which in turn accounts for a pervasive lack of faith in the possibility of a truly “global” health system.  Global health governance is fragmented because it is lawless, yet there is no underlying sentiment that this arena must be better ordered by rule of law.

Instead, Dr. Chan highlights the things that are “nice-to-haves” moving forward – greater resources in the form of human capital, money, technology, medicines – but these are not the “must haves.”  The most advanced laboratories, drugs, and learned medical minds alone will not spare the world from the next public health emergency.  We have several recent examples of this – the embarrassingly stilted and off-guard responses to Ebola in the United States and Europe, and MERS in South Korea.

Conversely, we also have examples of what extraordinary advocacy, outreach, and leadership can achieve not just in tandem with, but even without, biomedical innovation – the revolution in global HIV treatment and prevention and tobacco control – both public health plagues – are both at a point where the health community can speak realistically of endgames.  At the heart of these efforts are legal interventions at the local, national, and global levels.

So how do we move forward?  At a minimum, national legal capacity must be strengthened in a pragmatic way.  Countries must be encouraged and supported in the development of national public health laws.  Countries that have not must fully implement international treaties with health implications – those promulgated through WHO, and also those that impact climate change, education, human rights, and trade.

Legal capacity must be recognized as essential knowledge for those working in health.  This does not necessarily mean a proliferation of legal staff, but rather those who work in public health should understand the power, duty, and limits granted to them by various legal instruments.

Globally, in the ongoing discussions about sustainable development, universal health coverage, and health systems strengthening, the law – both the technical and the intangible – must be critically assessed and included in any ensuing framework or guidance.

As for the more challenging issues, Dr. Chan highlighted the “need to think of a comprehensive, integrated approach to address the complex, multiple challenges the world is giving us.”  She is right – the lawyers can help.

Oscar A. Cabrera is the Executive Director of the O’Neill Institute for National and Global Health Law at Georgetown University and Visiting Professor of Law at Georgetown Law. Susan C. Kim is the Deputy Director of the O’Neill Institute for National and Global Health Law at Georgetown University.

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