European perspectives on global health: a policy glossary

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3. Europe must assert its role in global health governance <strong>European</strong> approaches to international laws for health International law represents the body of rules and principles that regulates the conduct of, and relationships among, states ; the operation of international organisations ; the relations between states and natural or juridical persons ; and – in some cases – the conduct of persons towards each other. Europe should promote the development of a new framework of international laws on health. Historically, international law has been a central mechanism in international governance. Relations between states occur in a condition of anarchy, meaning that states recognise no common, superior political authority. In this context, international law serves as a critical process that allows states to coordinate their behaviour and cooperate on problems of mutual concern. Over time, international law has evolved to regulate not only inter-state relations but also the relations of states with their citizens ( e.g. human rights ) and obligations persons owe each other as human beings ( e.g. a duty not to commit crimes against humanity ). For global health today, some of the most important areas of international law are : international trade law, international environmental law, international human rights law, international humanitarian law, international labour law, international law on arms control, and international law on specific health problems ( e.g., communicable diseases ). Global health has experienced major controversies with respect to the impact of international trade law in the WTO on public health, particularly with respect to WTO treaties on intellectual property rights ( TRIPS ) and trade in services ( GATS ). The controversies merely reinforce how important international law has been, and will continue to be, for the pursuit of global health. From the moment health emerged as a diplomatic concern in the mid-19th century, international law has been important to the pursuit of health objectives in international relations. Use of international law for public health began with the international sanitary conventions adopted in the late 19th century, continued with the formation of the WHO in 1948, and expanded in the latter half of the 20th century to cover many activities that affect health or the social determinants of health. Much of the international law of relevance to health developed in the second half of the 20th century. It emerged outside WHO, which did not frequently utilise its powers to create international law for public health purposes. WHO’s reluctance to adopt binding international legal instruments, or “hard law,” demonstrated a preference for using “soft law,” or non-binding conventions and agreements with states on how they should approach international health problems. Globalisation has heightened the importance and stimulated major new international legal initiatives in global health. First, the processes of globalisation created the crisis in emerging and re-emerging infectious diseases in the 1990s ; and this crisis led to the adoption in May 2005 of the new International Health Regulations ( IHR 2005 ). The IHR 2005 constitute a radically new international legal regime designed to strengthen global health security against public health emergencies of international concern. They establish a new basis for cooperation in the event of international public health emergencies, by defining the circumstances under which health events should be reported in terms of their potential risk to international health. They require states to maintain the capacity to monitor and respond to such circumstances, with assistance and support from WHO or other states. Second, globalisation contributed to the emergence of a pandemic of tobacco-related diseases in the 1990s ; and WHO moved to counter this growing threat with the first treaty ever created under the treaty-making authority in the WHO Constitution, - the Framework Convention on Tobacco Control ( FCTC ). Like the IHR 2005, the FCTC is a seminal development in the use of international law for global health purposes. Third, a number of developments linked to globalisation’s destabilising effects have generated renewed attention to the human rights aspects of ( 1 ) public health problems ( e.g., discrimination evident in the HIV / AIDS pandemic ; quarantine and isolation in the SARS epidemic ) ; and ( 2 ) activities that affect public health ( e.g. the impact of TRIPS on the human right to have access to essential medicines ). 44 <strong>European</strong> Foundation Centre – <strong>European</strong> Partnership for Global Health
3. Europe must assert its role in global health governance Europe’s experiences with international law and health place it at the forefront globally in terms of the use of international law to benefit human health. The institutions of the <strong>European</strong> Union have addressed, through its various treaties, public health threats to safety, health at work, environmental degradation, the spread of communicable diseases and the broader impact of social and economic policies on health. The Council of Europe, which both predates the <strong>European</strong> Union and has a wider regional membership, has taken the lead in developing international law that protects public health as a human right not only as an issue for the <strong>European</strong> region but as a global imperative. The “<strong>European</strong> Convention on Human Rights and Fundamental Freedoms” was introduced in 1953, the <strong>European</strong> Commission on Human Rights started work in 1954, and the <strong>European</strong> Court of Human Rights was established in 1959. Any state wishing to become a member of the <strong>European</strong> Union must first sign and ratify the <strong>European</strong> Convention on Human Rights and accept the jurisdiction of its court. The Court took an increased role in relation to health issues when individuals were granted leave to take petitions and cases to the court in 1998. The Convention deals with civil and political rights ; it recognises a fundamental right to life but does not go further in specifying rights of access to health and care services. These rights are specified in the <strong>European</strong> Social Charter first adopted by the Council of Europe in 1961 and revised and reaffirmed in 1996. The Charter is part of the proposed new constitution of the EU, which has not yet been ratified. It is important to note that ratification of these conventions and charters requires the adoption of state laws giving recognition and precedence to international laws and courts. Because the <strong>European</strong> Union is fundamentally a legal agreement between states, with an independent legal process for settling disputes at the <strong>European</strong> Court of Justice ( ECJ ), many issues that might otherwise be considered matters for agreements between states are adjudicated through a legal process. Thus, for example, the right to treatment in certain cases, to obtain health services beyond the borders of a particular Member State, the application of working hours directives to health, action on tobacco and other products have all been subject to legal action at the ECJ. Treaties and agreements covering basic environmental emergencies were concluded at a relatively early stage in the development of the <strong>European</strong> Union, as for example, the Seveso Directive of 1982. Laws and directives concerning health and safety at work and other issues touching mental and physical health at work such as working time and discrimination at work have also been prominent in EU legislation and directives. Given the emphasis of the EU upon employment and trade it is also unsurprising that consumer protection was an early priority. The Amsterdam Treaty of 1997 calls for all EU social and economic policies to be subject to health impact assessment, while the 2004 policy reflection Enabling Good Health for All looks forward to the establishment of mechanisms for health impact assessment to ensure that all sectors become accountable for their policies and actions on health, and the health theme to be taken up by the Finnish presidency of the EU in 2006 will be “Health in All Policy”. In addressing health environmental concerns, it has been increasingly realised that many issues encompass the whole of the <strong>European</strong> region and its near neighbours. The EU through its Directorate for Health and Consumer Affairs has developed a close partnership with the <strong>European</strong> Office of the WHO to address regional concerns as exemplified by the WHO Protocol on Water and Health of 2005. Like other regions, Europe faces the challenge of improving compliance with the great body of preexisting international law relevant to health. For example, the recent Environmental Policy Review highlights the fact that, while the EU has passed more than 200 laws on environmental health, including 140 Directives on issues such as water quality and waste treatment, more than a third of all infringement cases, where the failure of governments to implement EU laws are investigated, relate to environmental issues. Improved compliance involves strengthening <strong>European</strong> performance under the regimes and increasing political, financial, and technical assistance to least-developed and developing countries that lack Global Health Policy Glossary 45
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European perspectives on global health: a policy glossary

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