The Soft Law Alternative to the Who's Treaty Powers

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TABLE OF CONTENTS    I. INTRODUCTION  II. THE WHO'S EXPERIENCE WITH HARD INTERNATIONAL HEALTH      LAW      A. Hard Law: Uses and Drawbacks      B. The WHO's Article 19 Power and Experience      C. The WHO's Article 21 Power and Experience      D. Summary III. THE SOFT LAW ALTERNATIVE: ATTRIBUTES AND PROSPECTS      A. Sovereignty Costs and Normative Experimentation      B. Coordination and Central Coordinator      C. Participation of Non-State Actors      D. Nimble and Responsive to Rapid Scientific Change      E. Customary International Law      F. Summary  IV. APPLICATION OF SOFT LAW TO THE WHO AND INTERNATIONAL      HEALTH LAW      A. Lowering Sovereignty Costs and Establishing Health Norms      B. Global Health Coordination and the WHO as Coordinator      C. Participation of Non-State Actors      D. Nimble and Responsive Health Agreements      E. Customary International Health Law      F. Summary   V. A FOURTH AGREEMENT: WILL HISTORY REPEAT?  VI. CONCLUSION 

I. INTRODUCTION

In 1947, the world "recognized that the solution of certain problems in the field of health depends on international action" (1) and needed a "powerful and competent international body [to] apply[] modern remedies ...." (2) In this spirit, the Constitution of the World Health Organization (WHO) bestowed on its highest decision-making body, the World Health Assembly (WHA), (3) the power to adopt binding international agreements. (4) However, it has used this power only three times. (5) Some commentators label this inaction "myopia," (6) argue it damages the WHO's institutional legitimacy, (7) and advocate greater use. (8) Perhaps in response to this criticism, in May 2012, the WHA unanimously resolved to begin work on a fourth agreement. (9)

However, "soft law" agreements are also used to coordinate and organize international activity. (10) This Note argues that instead of energizing its mostly dormant treaty-making authority, the WHO can better facilitate the development of global health 'law' by promulgating soft law instruments containing specific, concrete provisions. Practitioners in international financial and environmental law have deployed such instruments effectively to decrease the barriers to entry, articulate norms, facilitate coordination, involve non-state actors, and respond to rapid change. (11)

Section II of this Note analyzes the WHO's experience with its constitutional treaty-making power, revealing significant drawbacks to hard lawmaking. Section III defines soft law, reviews its relative benefits, and explains why it works with international financial and environmental agreements. Section IV analyzes the characteristics of sort law in light of the goals of global health law, (12) concluding that it provides an effective basis for coordinating international health efforts and potentially creates binding customary law. Section V will critique the recent WHA decision to pursue another binding agreement and explain why the choice of instrument may hinder, rather than foster, its noble aims.

II. THE WHO's EXPERIENCE WITH NARD INTERNATIONAL HEALTH LAW

The mission of the WHO is "to act as the directing and coordinating authority on international health work." (13) Much global health research concerns the WHO's activity. (14) Due to its position, some commentators have lamented the "untapped" potential of the WHO's role in crafting global health law, (15) defined as:

   [A] field that encompasses the legal norms, processes, and    institutions needed to create the conditions for people throughout    the world to attain the highest possible level of physical and    mental health. The field seeks to facilitate health-promoting    behavior among the key actors that significantly influence the    public's health, including international organizations,    governments, businesses, foundations, the media, and civil society.    The mechanisms of global health law should stimulate investment in    research and development, mobilize resources, set priorities,    coordinate activities, monitor progress, create incentives, and    enforce standards. …