7. International Law
David P Fidler
Use of international law in the production of GPGH (2)
- WHO Constitution imposes 2 substantive duties on member states:
- pay their share of the WHO budget
- submit periodic reports on various public health matters
- Procedural, substantive and enforcement mechanisms differ in legal depth and breadth
- GPGH production will benefit from international legal rules at all levels
- WHO’s approach remains institutional - broad not deep - but may be changing
The WHO Constitution imposes only two substantive duties on member states: (i) to pay their share of the WHO budget; and (ii) to submit periodic reports on various public health matters.
The construction of procedural approaches to specific public health problems provides more legal depth but less breadth because specific public health problems are singled out for greater attention (eg CDC). Adoption of specific substantive rules regulating state behavior produces greater depth and less breadth because such rules seek to channel state behavior in ways that will reduce the public health problem in question. Enforcement mechanisms represent the deepest and narrowest layer because states have decided not to tolerate violations of specific substantive rules.
The production of GPGH would benefit most when states create international legal rules at all four levels. Historically, WHO's approach to the production of GPGH remains largely at the institutional level because it does not, outside the IHR, deepen its legal approach to any global public health problem. Outside WHO, states and IGOs have attempted to create deep international legal regimes in trade, human rights, labour, and environmental protection by crafting procedural mechanisms, substantive rules, and sometimes enforcement strategies.
WHO's move to revise the IHR and negotiate the FCTC may represent a greater role of international law in the production of GPGH.