Academic journal article
By Fidler, David P.
Vanderbilt Journal of Transnational Law , Vol. 31, No. 5
Since the election of Dr. Gro Harlem Brundtland as the new Director-General of the World Health Organization (WHO, or the Organization),(1) the future of WHO has been a much discussed topic. For many years, WHO has come under attack from public health and political leaders who believe that it has become inefficient and ineffective. Many reform proposals have been suggested in public health literature; however, under Director-General Hiroshi Nakajima, WHO reform never progressed far.(2) Brundtland's selection has rejuvenated the hopes of many inside and outside the Organization who wish to see WHO return to the greatness of its halcyon days.(3)
An emerging issue in discussions of WHO's future is what role international law should have in WHO's global public health mission. Historically, WHO has ignored international law.(4) In a seminal 1992 article, Allyn Taylor, an American legal scholar and WHO consultant, made the first significant case for WHO to take international law more seriously than it historically has.(5) This Author has made similar arguments, specifically in connection with WHO's approach to emerging infectious diseases.(6) The literature also contains a growing recognition of the importance of other international legal regimes, especially international trade law, to WHO's future.(7) The contrast between WHO's historical attitude and the emerging interest in the importance of international law to WHO's work creates an opportunity to explore what role international law should play in WHO's future.(8)
This Article argues that WHO should take international law more seriously than it has in the past by developing an understanding of how international law already affects global health concerns and by using international law as a strategy to support WHO's mandate of furthering humanity's health. In addition, this Article develops the concept of global health jurisprudence to provide a comprehensive framework into which the Organization can integrate its international legal endeavors. The concept of global health jurisprudence helps clarify that WHO faces legal challenges not only internationally, but also nationally, and both must be addressed in an integrated and comprehensive manner. Creating global health jurisprudence will prove a difficult and frustrating task for WHO and will require the Organization to develop and utilize public health law capabilities that it has never thought necessary. Despite this formidable challenge, pursuit of global health jurisprudence constitutes a strategy that WHO needs to include as an essential element of its future global health policy.
Part II provides a brief history of international health law by analyzing (1) international legal activity from the mid-nineteenth century until WHO's creation, (2) the constitutional authority WHO possesses to develop international health law, and (3) how WHO has neglected international law during most of its fifty-year existence. Part III contrasts WHO's historical attitude towards international law with general developments in international law since 1945 and with how other international organizations have used international law to address global problems. Part IV attempts to explain why WHO neglected international law during its first fifty years by focusing on the adverse legal consequences of the Organization's "medical-technical ethos." Part V addresses the skeptical perspective that, even if WHO had been more involved with international law, such involvement would have made little difference to global public health because international law is a weak institution in international relations. Part VI examines the role of international law in WHO's future and argues that WHO is facing an international legal tsunami that will require a sea change in its attitude towards international law. Part VII presents the concept of global health jurisprudence as a possible framework for WHO to use in integrating national and international law into its future public health mission. …