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The Past, Present, and Future of Global Health Law Beyond Crisis
Published online by Cambridge University Press: 15 October 2021
Extract
The COVID-19 pandemic generated wide interest in global health law (GHL). The ease of its spread, and its eruption at a time of massive global travel in a city that is a major transport hub, turned it into an unprecedented event in the post-World War II era.
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- Copyright © The Author(s), 2021. Published by Cambridge University Press for The American Society of International Law
Footnotes
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Professor of international law and constitutional law at Tel Aviv University's Faculty of Law. The author is grateful to The Israel National Institute for Health Policy Research for its support of this research. Further funding was provided by the Taubenschlag Institute of Criminal Law at Tel-Aviv University. I am grateful to Pedro Villarel for his comments on an earlier draft of this Essay. Excellent research assistance was provided by Tamar Luster, Aner Shofty, Miri Tabenkin, and Shani Tsur. Finally, thanks to Batya Stein for her excellent editing work.
References
1 See Richard Horton, The COVID-19 Catastrophe: What's Gone Wrong and How to Stop It Happening Again 9 (2d ed. 2020).
2 Id. at 50.
3 David Fidler, SARS, Governance and the Globalization of Disease 6 (2004).
4 Id. at 8.
5 Id. at 16.
6 Id. at 26.
7 Id. at 26–29; See generally David Fidler, International Law and Infectious Diseases (1999).
8 Fidler, supra note 3, at 35.
9 Id. at 41.
10 WHO, International Health Regulations (2d ed. 2005) [hereinafter IHR].
11 Fidler, David, From International Sanitary Conventions to Global Health Security: The New International Health Regulations, 4 Chinese J. Int'l. L. 325, 355–56 (2005)Google Scholar.
12 Fidler, supra note 3, at 186.
13 See Christian Kreuder-Sonnen, Emergency Powers of International Organizations: Between Normalization and Containment 152–70 (2019). On the exercise of governance powers by the WHO during COVID-19, see Armin von Bogdandy & Pedro A. Villarreal, Critical Features of International Authority in the Pandemic Response: The WHO in the COVID-19 Crisis, Human Rights and the Changing World Order (MPIL Research Paper Series No. 2020–18, 2020).
14 IHR, supra note 10, Art. 12 (1).
15 Id. Art. 9.
16 Fidler, supra note 3, at 45.
17 The COVID-19 pandemic was the sixth case of a PHEIC declared under the 2005 IHR regulations. Gian Luca Burci, The Legal Response to Pandemics, 11 J. Int'l & Humanitarian Legal Stud. 204 (2020).
18 WHO, Summary of Probable SARS Cases with Onset of Illness from 1 November 2002 to 31 July 2003, at https://www.who.int/publications/m/item/summary-of-probable-sars-cases-with-onset-of-illness-from-1-november-2002-to-31-july-2003.
19 WHO Coronavirus (COVID-19) Dashboard, at https://covid19.who.int/table (about ten countries do not have any cases).
20 Horton, supra note 1, at 54.
21 On “AIDS exceptionalism,” see Thérèse Murphy, AIDS, in International Law's Objects 106 (Jessie Hohmann & Daniel Joyce eds., 2018).
22 Lawrence O. Gostin, Global Health Law (2014).
23 Additional books published in this period include a previous book by Gostin and Meier, Human Rights in Global Health: Rights-Based Governance for a Globalizing World (Benjamin Mason Meier & Lawrence O. Gostin eds., 2018), and two other books specifically focusing on infectious diseases and international law: The Governance of Disease Outbreaks: International Health Law: Lessons from the Ebola Crisis and Beyond (Leonie Cierck, Pedro A. Villarreal & A. Katrarina Weilert eds., 2017) and Infectious Diseases in the New Millennium: Legal and Ethical Challenges (Mark Eccleston-Turner & Ian Brassington eds., 2020).
24 Gostin, supra note 22, at 59.
25 Research Handbook on Global Health Law xiii (Gian Luca Burci & Brigit Toebes eds., 2018). See also Brigit Toebes, Global Health Law: Defining the Field, in Handbook, at 3. The “extreme fragmentation of the protection and promotion of human health among diverse legal regimes” is also addressed in the concluding chapter. See Gian Luca Burci, Global Health Law: Present and Future, in Handbook. On the “normative” rather than merely “descriptive” nature of GHL, see also Gostin, supra note 22, at 60.
26 Toebes, supra note 25, at 2–3.
27 Id. at 5.
28 Suerie Moon, Global Health Law and Governance: Concepts, Tools, Actors and Powers, in Handbook, supra note 25, at 25–27. Moon relies on a few texts in this discussion, especially Julio Frenk, Octavio Gómez-Dantés & Suerie Moon, From Sovereignty to Solidarity: A Renewed Concept of Global Health for an Era of Complex Interdependence, 383 Lancet 94 (2014); Theodore M. Brown, Marcos Cueto & Elizabeth Fee, The World Health Organization and the Transition From “International” to “Global” Public Health, 96 Am. J. Pub. Health 62 (2006). On the relationship between “international health,” “public health,” and “global health,” see also Jeffrey P. Koplan, et al., Towards A Common Definition of Global Health, 373 Lancet 1993 (2009). For a study of various definitions of global health, see Melissa Salm, Mahima Ali, Mairead Minihane & Patricia Conard, Defining Global Health: Findings from a Systematic Review and Thematic Analysis of the Literature, 6 BMJ Glob. Health (2021).
29 Benjamin Mason Meier & Lawrence O. Gostin, Introduction: Global Health and Human Rights, in Foundations of Global Health and Human Rights 4 (Lawrence O. Gostin & Benjamin Mason Meier eds., 2020). For a discussion of this shift, see also Handbook, supra note 25. See also Benjamin Mason Meier, Margherita Marianna Cina & Lawrence O. Gostin, Advancing Human Rights Through Global Health Governance, in Foundations, at 200.
30 See Martti Koskenniemi, The Fate of Public International Law: Between Technique and Politics, 70 Modern L. Rev. 1 (2007); Martti Koskenniemi, International Law Commission Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, UN DOC A/CN.4/L.682 (Apr. 13, 2006).
31 Kosekenniemi, The Fate, supra note 30.
32 Moon, supra note 28, at 29.
33 See Jeremy Greene, Marguerite Thorp Basilico, Heidi Kim & Paul Farmer, Colonial Medicine and Its Legacies, in Reimagining Global Health 33 (Paul Farmer, Jim Yong Kim, Arthur Kleinman & Matthew Basilico eds., 2013). See also Randall Packard, A History of Global Health (2016); Anne-Emanuelle Birn, Yorgan Pillay & Timothy H. Holtz, Textbook on Global Health Law 1–20 (4th ed. 2017).
34 See Coleen Flood & Aeyal Gross, Conclusion: Contexts for the Promise and Peril of the Right to Health, in The Right to Health at the Public/Private Divide: A Global Comparative Study 451, 452–54 (Colleen Flood & Aeyal Gross eds., 2017).
35 Toebes, supra note 25, at 6–7. Similarly, in her contribution to Handbook, Murphy points to GHL as a distinctive normative orientation rather than merely a description. Thérèse Murphy, Hardwired Human Rights: A Health and Human Rights Perspective on Global Health Law, in Handbook, supra note 25, at 88.
36 Toebes, supra note 25, at 13–16.
37 Lawrence O. Gostin, Matiangai V. S. Sirleaf & Eric Friedman, Global Health Law: Legal Foundations for Social Justice in Public Health, in Foundations, supra note 29, at 59.
38 Gostin, for example, in his 2014 treatise, lists “the human right to health” as one of three major sources of global health law, alongside what he calls international health law (WHO law) and interconnecting legal regimes that have an impact on health. Gostin, supra note 22, at 11–12.
39 Lawrence O. Gostin & Benjamin Mason Meier, Introduction: Global Health & Human Rights, in Foundations, supra note 29, at 1–5.
40 See Gostin, Sirleaf & Friedman, supra note 37.
41 Constitution of the World Health Organization, pmbl., July 22, 1946.
42 Universal Declaration of Human Rights, Art. 25 (1), Dec. 10, 1948, UN Doc. A/RES/217(III).
43 International Covenant on Economic, Social and Cultural Rights, Art. 12, Dec. 16, 1966, 993 UNTS 3. In Handbook, Murphy addresses the relationship between “health and human rights” and GHL. Murphy, supra note 35, at 82.
44 Gostin and Meier trace the initial steps of the field to the mutual links between health and human rights in the early years of the HIV/AIDS response. Gostin & Meier, supra note 39, at 10. The issue is explored in detail in both of the books reviewed in this Essay. Joseph J. Amon & Eric A. Friedman, Human Rights Advocacy in Global Health, in Foundations, supra note 29, at 133; Sharifah Sekalala & John Harrington, Communicable Diseases, Health Security, and Human Rights: From AIDS to Ebola, in Foundations, supra note 29, at 222–24; Daniel Tarantola & Sofia Gruskin, The Recognition and Evolution of HIV and Human Rights Interface, 1981–2017, in Handbook, supra note 25; Murphy, supra note 35, at 83–87.
45 For the background to the reemergence of the right to health since the 1990s and the reasons leading to it, see Colleen Flood & Aeyal Gross, Introduction: Marrying Human Rights and Health Care Systems, in The Right to Health, supra note 34, at 1, 2–4.
46 See, e.g., Litigating Health Rights: Can Courts Bring More Justice to Health? (Alicia E. Yamin & Siri Gloppen eds., 2011); Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World (Varun Gauri & Daniel M. Brinks eds., 2008); The Right to Health, supra note 34; Colleen M. Flood & Aeyal Gross, Litigating the Right to Health: What Can We Learn from a Comparative Law and Health Care Systems Approach, 16 Health & Hum. Rts. 62 (2014).
47 John Tobin & Damon Barret, The Right to Health and Health-Related Human Rights, in Foundations, supra note 29, at 79–80.
48 John Tobin, Still Getting to Know You: Global Health Law and the Right to Health, in Handbook, supra note 25, at 81.
49 Morton Horowitz, Rights, 23 Harv. C.R-C.L. L. Rev. 393 (1988).
50 For a discussion see Murphy, supra note 35, at 100.
51 See the sources in note 46 supra.
52 Colleen Flood & Bryan Thomas, Justiciability of Human Rights to Health, in Foundations, supra note 29, at 188. See also Octavio Luiz Ferraz, Health as A Human Right: The Politics and Judicialisation of Health in Brazil (2021).
53 Minister of Health and Others v. Treatment Action Campaign and Others, [2002] (5) SA 721 (CC) (S. Afr.).
54 Flood & Thomas, supra note 52, at 178.
55 Chaoulli v. Quebec (AG), [2005] SCR 791 (Can.).
56 See William Forbath, Cultural Transformation, Deep Institutional Reform, and ESR Practice; South Africa's Treatment Action Campaign, in Stones of Hope: How African Activists Reclaim Human Rights to Challenge Global Poverty 51 (Lucie White & Jeremy Perelman eds., 2011)
57 Flood & Thomas, supra note 52, at 185–86.
58 Id. at 186.
59 See Aeyal Gross, Is There a Human Right to Private Health Care, 41 J. L. Med. & Eth. 138 (2013).
60 Paul Farmer, Pathologies of Power: Health, Human Rights, and the New War on the Poor, ch. 9, 213 (2003); see also Paul Farmer & Nicole Gastineau, Rethinking Health and Human Rights: Time for a Paradigm Shift, 30 J. L. Med. & Eth. 655 (2002). On the limits of a legalized rights rhetoric in this context, see also Lucie White, “If You Don't Pay, You Die”: On Death and Desire in the Postcolony, in Exploring Social Rights: Between Theory and Practice 72 (Daphne Barak-Erez & Aeyal Gross eds., 2007).
61 Brigit Toebes & David Patterson, Human Rights and Non-communicable Diseases: Controlling Tobacco and Promoting Healthy Diets, in Foundations, supra note 29, at 251.
62 Id.
63 Chung-Feng Wu & Chien-Huei Wu, International Trade, Public Health, and Human Rights, in Foundations, supra note 29, at 353–54.
64 Frederick M. Abbot, Health and Intellectual Property Rights, in Handbook, supra note 25.
65 See Hogler Hestermeyer, Human Rights and the WTO – The Case of Patents and Access to Medicines (2008).
66 Doha Ministerial Declaration on the TRIPS Agreement and Public Health, adopted Nov. 14, 2001, WT/Min (01)/DEC/2.
67 Wu & Wu, supra note 63, at 361–62.
68 Id. at 363–68; Benn McGrady, Health and International Trade Law, in Handbook, supra note 25, at 109; Abbot, supra note 64, at 156. See also Ellen ‘t Hoen, Private Patents and Public Health: Changing Intellectual Property Rules for Access to Medicines (2016); Susan Sell, TRIPS Was Never Enough: Vertical Forum Shifting, FTAS, ACTA and TTP, 18 J. Intell. Prop. L. 448 (2011)
69 See Hestermeyer, supra note 65.
70 Statement from Amb. Katherine Tai on the COVID-19 TRIPS Waiver (2021).
71 See WTO Press Release, Members Approach Text-Based Discussions for an Urgent IP Response to COVID-19 (June 9, 2021), at https://www.wto.org/english/news_e/news21_e/trip_09jun21_e.htm.
72 Matthew Kavanagh (@MMKavanagh), Twitter (May 6, 2021, 3:21 PM), at https://twitter.com/MMKavanagh/status/1390280527815585795. See also Matthew Kavanagh, Mara Pillinger, Renu Singh & Katherine Ginsach, To Democratize Vaccine Access, Democratize Production, For. Pol'y (Mar. 1, 2021), at https://foreignpolicy.com/2021/03/01/to-democratize-vaccine-access-democratize-production; Michael Hirsh, Can Biden's Vaccine Patent Waiver End the Pandemic, For. Pol'y (May 6, 2021), at https://foreignpolicy.com/2021/05/06/biden-vaccine-waiver-coronavirus-intellectual-property-rights; US Supports the COVID-19 TRIPS Waiver for Vaccines; Now, Technology Sharing Must Become a Reality, Med. L. & Pol'y (May 6 2021), at https://medicineslawandpolicy.org/2021/05/us-supports-the-covid-19-trips-waiver-for-vaccines-now-technology-sharing-must-become-a-reality.
73 See Pablo Guiterrez & Ashley Kirk, Vaccine Inequality: How Rich Countries Cut Covid Deaths as Poorer Left Behind, Guardian (June 28, 2021), at https://www.theguardian.com/world/ng-interactive/2021/jun/28/vaccine-inequality-how-rich-countries-cut-covid-deaths-as-poorer-fall-behind?CMP=Share_iOSApp_Other; Sharifah Sekalala, et al., Decolonizing Human Rights: How Intellectual Property Laws Result in Unequal Access to the COVID-19 Vaccine, 6 BMJ Glob. Health (July 12, 2021); Amaka Vanni, On Intellectual Property Rights, Access to Medicines and Vaccine Imperialism, TWAILR (Mar. 23, 2021), at https://twailr.com/on-intellectual-property-rights-access-to-medicines-and-vaccine-imperialism.
74 Chiara Giorgetti, however, argues that investment protection law has accommodated the necessary requirements for protecting public health. Tribunals have accepted the notion that provisions intended for the protection of public health must find place in state regulation systems even if they affect foreign investment. Chiara Giorgetti, Health and International Investment Law, in Handbook, supra note 25, at 196.
75 Wu & Wu, supra note 63, at 359–60. See also Toebes & Patterson, supra note 61, at 257–58. See Suzanne Zhou & Jonathan Liberman, The Global Tobacco Epidemic and the WHO Framework Convention on Tobacco Control: The Contributions of the WHO's First Convention to Global Health Law and Governance, in Handbook, supra note 25, at 375–383; Ben McGrady, Health and the International Trade Law, in Handbook, supra note 25, at 105–06, 133–34; Giorgetti, supra note 74, at 183–85, 195–96; Amandine Garde, Global Health Law and Non-communicable Disease Prevention: Maximizing Opportunities by Understanding Constraints, in Handbook, supra note 25, at 389.
76 See Aditya Rathore & Ashuton Bajpai, The WTO Appellate Body Crisis: How We Got Here and What Lies Ahead, Jurist (Apr. 14, 2020), at https://www.jurist.org/commentary/2020/04/rathore-bajpai-wto-appellate-body-crisis.
77 Wu & Wu, supra note 63, at 357.
78 Additionally, the Regulations Regarding Nomenclature is also part of WHO hard law. World General Assembly, WHO Regulations No. 1 Regarding Nomenclature (Including the Compilation and Publication of Statistics) with Respect to Disease and Causes of Death (1948), at https://apps.who.int/iris/handle/10665/97656.
79 WHO Director-General's Statement on IHR Emergency Committee on Novel Coronavirus (2019-nCoV) (Jan. 30, 2020), at https://www.who.int/director-general/speeches/detail/who-director-general-s-statement-on-ihr-emergency-committee-on-novel-coronavirus-(2019-ncov).
80 Fidler, supra note 11, at 329.
81 Id. at 331–32; see also Fidler, supra note 3, at 31.
82 Fidler, supra note 11, at 332–33.
83 Fidler supra note 7, at 58–61.
84 Fidler, supra note 11, at 334–35.
85 Id. at 337.
86 Id. at 338.
87 Id. at 339; Fidler, supra note 3, at 42–43.
88 Fidler, supra note 11, at 343.
89 Stefania Negri, Communicable Disease Control, in Handbook, supra note 25, at 268–69, 292.
90 Id. at 292.
91 Sekalala & Harrington, supra note 44, at 233–34.
92 Id. at 234.
93 Horton, supra note 1, at 79; Caitlin Williams, Jocelyn Getgen Kestenbaum & Benjamin Mason Meier, Populist Nationalism Threatens Health and Human Rights in the COVID-19 Response, 110 Am. J. Pub. Health 1766 (2020).
94 See Lukasz Gruszczynski & Chien-huei Wu, Between the High Ideals and Reality: Managing COVID-19 Vaccine Nationalism, Eur. J. Risk Regulation 1–9 (2021); Armin von Bogdandy & Pedro Villarreal, The Role of International Law in Vaccinating Against COVID-19: Appraising the COVAX Initiative (MPIL Research Paper No. 2020–46, 2020). For an argument for “vaccine internationalism,” see Brian L.H. Wong, et al., Toward “Vaccine Internationalism”: The Need for an Equitable and Coordinated Global Vaccination Approach to Effectively Combat COVID-19, 66 Int'l J. Pub. Health 1 (2021).
95 Stephen Thomson & Eric C. Ip, COVID-19 Emergency Measures and the Impending Authoritarian Pandemic, 7 J. L. & Biosciences 1 (2020).
96 See, e.g., AIDS, Malaria and Tuberculosis are Surging, 584 Nature 169 (2020); Editorial, Tuberculosis and Malaria in the Age of COVID-19, 21 Lancet – Infectious Diseases 1 (2021); The Global Fund, Mitigating the Impact of COVID-19 on Countries Affected by HIV, Tuberculosis and Malaria (2020), available at https://www.theglobalfund.org/media/9819/covid19_mitigatingimpact_report_en.pdf; Alexandra B. Hogan, et al., Potential Impact of the COVID-19 Pandemic on HIV, Tuberculosis and Malaria in Low-Income and Middle-Income Countries: A Modelling Study, 8 Lancet – Glob. Health e1132 (2020).
97 Finn McQuaid, A. Vassall, T. Cohen, K. Fiekert & R.G. White, The Impact of COVID-19 on TB: A Review of the Data, 25 Int'l J. Tuberculosis & Lung Disease 436, 439 (2021).
98 The Global Fund, Results Report (2021), at https://www.theglobalfund.org/en/results.
99 UNICEF Press Release, COVID-10 Pandemic Leads to Major Backsliding on Childhood Vaccinations, New WHO, UNICEF Data Shows (July 15, 2021), at https://www.unicef.org/press-releases/covid-19-pandemic-leads-major-backsliding-childhood-vaccinations-new-who-unicef-data.
100 See Thomas J. Bollyky, Serena Tohme & Samantha Kiernan, Noncommunicable Diseases Kill Slowly in Normal Times and Quickly in COVID-19 Times, Council For. Rel. (Sept. 10, 2021), at https://www.cfr.org/article/noncommunicable-diseases-kill-slowly-normal-times-and-quickly-covid-19-times.
101 Additionally, as the authors of a textbook on global health noted, global health governance is concerned with disease outbreaks that could interrupt commerce, manufacturing, tourism, and other powerful economic sectors, pointing out how the protection of the world economic order of neoliberal capitalism is a prime driver of geopolitical interests in global health. See Birn, Pillay & Holtz, supra note 33, at xxxvi.
102 Id. at xxvi.
103 Hilary Charlesworth, International Law: A Discipline of Crisis, 65 Modern L. Rev. 377 (2002).
104 Id. at 377. For a recent example, see Agora, The International Legal Order and the Global Pandemic, 114 AJIL (2020).
105 Charlesworth, supra note 103, at 384.
106 Id. at 386–87.
107 Id. at 390–391.
108 Id. at 388–89.
109 Id. at 391.
110 On the social determinants of health see, for example, WHO Commission on Social Determinants of Health Final Report, Closing the Gap in a Generation: Health Equity through Action on the Social Determinants of Health (2008).
111 See Sharifah Sekalala, Soft Law and Global Health Problems: Lessons from Responses to HIV/AIDS, Malaria and Tuberculosis (2018).
112 Id. at 216. However, Sekalala also notes that, in soft law programs, uneasiness surrounds the overreliance on unelected donors unaccountable for key decisions, and the danger of developing countries pinning long-term hopes for access to medicines on unsustainable arrangements that ignore the underlying problems caused by the TRIPS system in measures taken in regard to non-PHEIC diseases. Id. at 256. On the advantages and disadvantages of “soft law” and the relationship between “soft” and “hard” law, see Gian Luca Burci, Global Health Law: Present and Future, in Handbook, supra note 25, at 490–91, 520–27.
113 WHO Global Tuberculosis Program, TB: A Global Emergency, WHO Report on the TB Epidemic, WHO/TB/94.177 (1994).
114 See Ruvandhi R. Nathavirtharana & Jon S. Friedland, A Tale of Two Global Emergencies: Tuberculosis Control Effort Can Learn from the Ebola Outbreak, 46 Eur. Respiratory J. 293 (2015).
115 On TB: WHO – Regional Office for Africa, Tuberculosis (TB), at https://www.afro.who.int/health-topics/tuberculosis-tb; on Malaria: WHO, Malaria, at https://www.who.int/news-room/fact-sheets/detail/malaria; on AIDS: WHO – Regional Office for Africa, HIV/AIDS, at https://www.afro.who.int/health-topics/hivaids.
116 IHR, supra note 10, Art. 1 (emphasis added); Art. 12; Annex 2, Decision Instrument for the Assessment and Notification of Events That May Constitute a Public Health Emergency of International Concern.
117 Toebes & Patterson, supra note 61, at 258.
118 Id. at 255.
119 Garde, supra note 75.
120 Toebes & Patterson, supra note 61, at 244.
121 Gostin, supra note 22, at 383–94.
122 In their chapters in Foundations, Brigit Toebes and David Patterson note that NCDs are now responsible for over 70% of deaths worldwide, with 85% of premature deaths due to NCDs now occurring in low-to-middle-income countries. Toebes & Patterson, supra note 61, at 243. See also Gostin, supra note 22, at 43–46.
123 Madhukar Pai, Covidization of Research: What Are the Risks, 26 Nature Med. 1159 (2020).
124 Toebes & Patterson, supra note 61; Zhou and Liberman, supra note 75; Garde, supra note 75; Oliver Lewis & Soumitra Pathare, Chronic Illness: Disability and Mental Health, in Foundations, supra note 29.
125 On obesity, see Katharina O Cathoaoir, Metter Hartlev & Celine Brassat Olsen, Global Health Law and Obesity: Towards a Complementary Approach of Public Health and Human Rights Law, in Handbook, supra note 25, at 427; on chronic illness, see Oliver Lewis & Soumitra Pathare, Chronic Illness: Disability and Mental Health, in Foundations, supra note 29, at 285.
126 See, e.g., Alvarez, Jose, The WHO in the Age of the Coronavirus, 114 AJIL 578 (2020)CrossRefGoogle Scholar; Gostin, Lawrence O., Habibi, Roojin & Meier, Benjamin Mason, Has Global Health Law Risen to Meet the COVID-19 Challenge? Revisiting the International Health Regulations to Prepare for Future Challenges, 48 J. L. Med. & Eth. 376 (2020)Google Scholar; Burci, Gian Luca, The Legal Response to Pandemics: The Strengths and Weaknesses of the International Health Regulations, 11 J. Int'l Hum. Legal Stud. 204 (2020)Google Scholar; Benvenisti, Eyal, The WHO – Destined to Fail? Political Cooperation and the COVID-19 Pandemic, 114 AJIL 588 (2020)CrossRefGoogle Scholar.
127 Special Session of the World Health Assembly to Consider Developing a WHO Convention, Agreement, or Other International Instrument on Pandemic Preparedness and Response, WHO Seventy Fourth World Health Assembly, Agenda Item 17.3, A74/A/Conf./7 25 (May 2021), available at https://apps.who.int/gb/ebwha/pdf_files/WHA74/A74_ACONF7-en.pdf. The call for a pandemic treaty was made by the president of the European Council and endorsed by twenty-five heads of state the director of the WHO. See WHO Press Release, COVID-19 Shows Why United Action Is Needed for More Robust International Health Architecture (Mar. 31, 2021), at https://www.who.int/news-room/commentaries/detail/op-ed---covid-19-shows-why-united-action-is-needed-for-more-robust-international-health-architecture; Haik Nikogosian & Ilonka Kikbusch, A Pandemic Treaty: Where We Are Now that the Leaders Have Spoken, BMJ Opinion (Apr. 26, 2021), at https://blogs.bmj.com/bmj/2021/04/26/a-pandemic-treaty-where-are-we-now-that-the-leaders-have-spoken; Duff, Jonathan, et al. , A Global Public Health Convention for the 21st Century, 6 Lancet Pub. Health e428 (2021)Google ScholarPubMed. For an exception that, in the context of discussing a pandemic treaty, addresses the need to decolonize the prevailing paradigm of global health security, see Sakiko Fukuda-Parr, Paulo Buss & Alicia Ely Yamin, Pandemic Treaty Needs to Start with Rethinking Paradigm of Global Health Security, BMJ Glob. Health (June 3, 2021), at https://gh.bmj.com/content/6/6/e006392. On the lack of definition of a “pandemic” in international law and the relationship between “pandemic” and PHEIC, see Pedro Villarreal, Pandemic: Building a Legal Concept for the Future (MPIL Research Paper No. 2021–12, 2021).
128 See, e.g., Action to Decolonize Global Health, at https://decolonise.health; Duke Decolonizing Global Health Working Group, at https://sites.duke.edu/dukedgh; Harvard Chan Student Committee for the Decolonization of Public Health, at https://www.hsph.harvard.edu/decolonizing-global-health-so.
129 According to Abimbola and Pai, decolonizing global health requires removing all the forms of supremacy currently prevalent in the operation of global health organizations—who runs them, where they are located, who holds the purse strings, who sets the agenda, and whose views, history, and knowledge are taken seriously. See Seye Abimbola & Madhukhar Pai, Will Global Health Survive Its Decolonization, 396 Lancet 1627 (2020). Buyum, et al. describe how the current global health ecosystem upholds the supremacy of the white savior and the need for more equitable representation in global health leadership positions. On the implications of private actors’ increasing role in public-private partnerships, see Birn, Pillay & Holtz, supra note 33, at xxxvi.
130 See Alicia Ely Yamin & Paul Farmer, Against Nihilism: Transformative Human Rights Praxis for the Future of Global Health, OpenGlobalRights (June 7, 2021), at https://www.openglobalrights.org/against-nihilism-transformative-human-rights-praxis-for-the-future-of-global-health/?lang=English.
131 See, e.g., Buyum, Ali Murad, Cordelia-Kenney, , Koris, Andrea, Mkumba, Laura & Raveendran, Yadurshini, Decolonizing Global Health, If Not Now, When?, 5 BMJ Glob. Health e003394 (2020)CrossRefGoogle Scholar; Abimbola & Pai, supra note 129; Hirsch, Lioba A, Is It Possible to Decolonize Global Health Institutions, 397 Lancet 189 (2021)CrossRefGoogle Scholar. For a recent exception within legal analysis, see Sharifah Sekalala, et al., supra note 73. Additionally, the United Nations Special Rapporteur on the Right to Health, Dr. Tlaleng Mofokeng, announced in 2021 that her main approach during her tenure will be to examine the understanding of coloniality and racism, their impact on the right to health, and how to move forward to substantive equality. See Tlaleng Mofokeng, Special Rapporteur on the Right to Physical and Mental Health, Strategic Priorities of Work, UN Doc. A/HRC/47/28 (Apr. 7, 2021).
132 Additionally, in November 2020 the UNEP joined the tripartite in forming a One Health High-Level Expert Council. UNEP Press Release, UNEP Joins Three International Organizations in Expert Panel to Improve One Health (Nov. 12, 2020), at https://www.unep.org/news-and-stories/story/unep-joins-three-international-organizations-expert-panel-improve-one-health.
133 See UNEP Press Release, Preventing the Next Pandemic: Zoonotic Diseases and How to Break the Chain of Transmission (July 6, 2020), at https://www.unep.org/resources/report/preventing-future-zoonotic-disease-outbreaks-protecting-environment-animals-and; see also Preventing Pandemics, at https://www.preventingfuturepandemics.org.
134 The One Health approach is discussed in the chapter by Sekala & Harrington, supra note 44, at 237. See also a brief discussion of this cooperation in Burci, in Handbook, supra note 25, at 498.
135 Anne Peters, COVID-19 as a Catalyst for the (R-)Constitutionalisation of International Law: One Health – One Welfare (MPIL Research Paper No. 2020–44, 2020). See also Peters, Anne, COVID-19 Shows the Need for a Global Animal Law, 11 Derecho Animal 86 (2020)Google Scholar.