Introduction

Global health is experiencing a record influx of public and private actors with unprecedented levels of funding directed to global heath activities. Despite the popular attention, in scholarly debates, the multiple academic disciplines that inform global health governance, have yet to provide an adequate theory that moves beyond national and self-interest of sovereign states and international human rights law. Moreover, a theoretically grounded normative approach to global health governance has failed to emerge from the interdisciplinary intersection of medical ethics, international relations, international human rights law, health policy and law and public health law. This paper aims to provide the beginnings of a theory of global health governance that, unlike international relations and international law, uniquely situates the problem of global health governance as one of a failure, in terms of the roles and responsibilities of both
domestic and global actors, to fully agree on, commit to and implement policies to effectuate the public moral norm of equity in health. This approach takes health and disease control out of the realm of: national or security interests of powerful countries like the United States; the self-interests of wealthy non-governmental organizations and foundations and; international legal instruments. Rather this approach grounds global health governance in principles of global health justice. These values identify overarching goals, principles and duties and obligations of national and state actors. This approach develops an ethical paradigm that emphasizes a particular type of norm – a public moral norm – to form the basis of self and societal regulation to achieve equity in health.1 By emphasizing these factors, this approach offers findings distinct from those provided by existing theories of international relations and international law, and the paper concludes with prescriptions for future reform of the global health governance architecture.

Alternative Governance Frameworks

Global health governance is a relatively newly emerging field. Construed broadly, it encompasses work in multiple disciplines including economics, political science and sociology; environmental and gender studies; history; international relations and international law; and medicine and public health. More “narrowly,” the field is comprised of three dominant frameworks that have emerged primarily for global health cooperation: national and security interests; domestic and global economic development; and international human rights.2 Horizontal participation and vertical representation are cross-cutting dimensions to these frameworks.3 Just a few years ago, for example, the World Health Organization (WHO) Commission on Macroeconomics and Health advocated international cooperation on health due primarily to the national and global economic impact of such investments; demonstrating the powerful influence of economic approaches to global health governance.

Decades earlier, powerful sovereign states, primarily in Europe, saw investments in controlling the spread of cholera and yellow fever as essential foreign policy to thwart off external threats to the health of their populations. A 2007 issue of the Bulletin of the World Health Organization highlighted the unprecedented focus on health as a foreign policy issue and the rise in nations’ pursuit of health as a foreign policy concern linked to security, power, economic prosperity and influence and a move beyond health as a humanitarian issue.  This framework has enveloped the argument for framing health threats as security challenges, especially in the area of biological terrorism, HIV/AIDS and pandemic influenza where world superpowers have driven the global security agenda by concerns about threats to their nations’ interests. Moreover, many international legal instruments such as international treaties (agreements among states), customary international law (unwritten rules established over time through practice), and general principles of law (domestic law principles adopted in international law) have been established under a framework of international cooperation for protecting state interests. For example, the purpose of the newly revised International Health Regulations (IHR) is to “prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with and restrict to public health risks, and which avoid unnecessary interference with international traffic and trade.”6 The new IHR are closely connected to international trade law and based on the premise that fully functioning global markets (that are not hindered by health threats) are essential for the free flow of international economic activity. The focus on addressing health measures that might restrict global trade in goods and services brings together both the economic and national interest motivations for international health cooperation.

The third framework, human rights, has increasingly been invoked as the only viable framework for evaluating global health atrocities such as the HIV/AIDS pandemic in Sub-Saharan Africa, the break-out of SARS in China, and the public health impact of the South Asian Tsunami disaster. Human rights have as such filled a “moral gap” in the international discourse in global health left void primarily by economic and geo-political governance frameworks for international health issues. In 2002, for example, international human rights law, as embodied in the South African constitution, was brought to bear on a case in which the Treatment Action Campaign of South Africa brought suit against the South African government alleging that limitations on the
availability in public hospitals of Nevirapine violated HIV-positive pregnant women and their children’s right to health as stipulated under the South African constitution.  The trial court in this case ruled in favor of the Treatment Action Campaign stating that restricting Nevarapine in public hospitals “is not reasonable and is an unjustifiable barrier to the progressive realization of the right to health care.”  A year later, the Constitutional Court of South Africa (South Africa’s highest court) upheld the lower court’s decision.

Despite its recent resurgence in particular contexts (with respect especially to HIV/AIDS) and numerous successes, the human rights movement – as embodied in the 1948 adoption of the Universal Declaration of Human Rights (UDHR), and the subsequent adoptions of the International Covenant on Civil and Political Rights10 (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR)11 and taken forward thereafter in legal academia especially by Ronald Dworkin,12 Lawrence Tribe,13 Louis Henkin14 and later by Abram and Antonia Chayes15, Harold Koh16, and others — has also been viewed with considerable skepticism and doubts. And concern about compliance with international human rights law has now
become an issue as has the topic of the effectiveness of legal human rights instruments in influencing the behavior of state and non-state actors more broadly.

One would be hard pressed to find a more controversial or nebulous human right than the “right to health” – a right that stems primarily, although not exclusively, from Article 12 of the ICESCR and requires governments to recognize “the right of everyone to the highest attainable standard of physical and mental health.”18 As noted above, the “right to health” has been brought to bear in domestic case law, but it has also been invoked much more widely in a rhetorical sense – especially by non-governmental organizations and activists in efforts especially to raise awareness and mobilize support for addressing disease and morbidity world-wide. And thanks to the work of the late Jonathan Mann and colleagues19, the field of health and human rights is now widely accepted as a domain that brings together academicians and practitioners to incorporate a human rights perspective to specific diseases and to health more broadly.20Yet despite the significant progress made in promoting a human rights approach to health and the field of health and human rights more generally, the human rights strategy has been only moderately effective, for example in efforts to control and mitigate the HIV/AIDS epidemic.21 International human rights law scholars doing work in public health and health policy have typically focused on government’s binding legal obligations to promote and protect both public health and human rights22 and on drawing on human rights to address public health issues, especially the HIV/AIDS pandemic.23 Yet scholars in this field have, in the words of Larry Gostin, “developed a sophisticated understanding of civil and political rights but have failed systematically to examine the meaning and enforcement of social and economic rights.”24 And while General Comment No. 14, issued by the UN Committee on Economic, Social, and Cultural
Rights (CESCR), provides the most reliable report on the “right to health,” it too, by necessity and purpose, lacks a systematic theoretical approach to global health governance.

Values and Norms in Global Health Governance

The theoretical approach taken here states that values and norms, particularly their level of generality, and the social agreement or lack thereof around them, have an independent role in understanding global health governance. This approach does not attempt to arrive at a single unified framework for explaining global health governance, and it recognizes the complementary roles of political science, economic and legal perspectives. Nonetheless, it argues that unarticulated values and norms have a critical role to play in global health governance; this role has been inadequately studied and has lacked a theoretical framework.

Within this theoretical framework, this paper argues that policy goals, which require individuals to make financing commitments (e.g., tax contributions) in the form of redistributing resources for implementation (e.g., health systems development), should be analyzed within a normative framework that evaluates actors ethical commitments to making such sacrifices and effectuating policies and programs that are beyond their self-interest. The distribution of public moral norms, their degree of internalization, and the social consensus, or lack thereof, which applies to them must be objects of study in the effort to better understand global health governance.

Surprisingly, few systematic efforts have been made to deal with the underlying normative frameworks of global health injustices.26 27 Some views from the field of global justice more broadly provide background, however. One view, the Hobbesian tradition, states that collective security and national-interest are the primary aim of justice. From this perspective, global health inequalities provide no moral motive for remedy. This view is consistent with the overarching framework of national and security interests in global health governance noted above. A second view stems from John Rawls’s theory28 and coincides with Thomas Nagel’s 29 account; both apply a relational perspective and ground the obligation of justice in the sovereign nation state;
global health inequalities have no moral standing; justice, an associative obligation, is owed only our sovereign citizens. Both Hobbes and Rawls would require global sovereignty or world government to justify duties and responsibilities of global actors to address global health inequalities.

A final view, cosmopolitanism, argues principles of justice apply to all individuals wherever they are in the cosmos; and varies from strong demands for fair terms of cooperation30 on a global scale to at a minimum adherence to the no harm principle, that international institutions and agreements be prohibited from causing harm31, particularly extreme poverty, to others. Rectifying such harm justifies international action. Despite this broader background, however, ethicists have provided very little on the philosophical foundations of global health, its distribution and global health justice.

I’ve argued elsewhere that global health disparities are morally problematic and that efforts to reduce them are morally justified.32 The moral concern in global health inequalities is individuals’ reduced capability for physical and mental functioning or even for being alive.  Deprivations in the capability to function rob individuals of the freedom to be what they want to be.
This underlying principle of justice applies to all humans regardless of where they live and regardless of any given person’s or people’s specific relationship to them. It takes individuals as the central moral unit of justice. This approach does not seek to find ways in which global and national actors deal with global justice by virtue of their effect on self-interest, national interest, adherence to a global social contract, collective security, requirement of cosmopolitan duty or humanitarian assistance; all insufficient foundations of global health justice. Rather, it endorses the more robust concept of human flourishing and the desire to live in a world where all people have the capability to be healthy.

This perspective differs from other schools of thought. The contractarian or utilitarian views see contracts to achieve mutual advantage—or states of affairs that maximise societal welfare (the aggregation of individual welfare)—as solutions to problems of global justice. The approach espoused here differs from general cosmopolitan theory by rejecting the attenuation of attachments of duties and obligations to the nation-state, fellow citizens and local communities. From this perspective, the primary, though not sole, duties fall on nation-states. Global health inequalities are morally troubling because our intuition and ethical claim of equal respect for all humans tells us that being born into a country or society in which one has a good chance of being in the worse-off health group is morally arbitrary and requires rectification. Moral arbitrariness should not be the basis for determining one’s health; or survival. This approach differs from positivist theories of international relations (e.g. realism, neo-realism and neo-liberalism or neo-classical economics) and adopts an optimistic or idealistic view of a future world order in which the ideals of domestic and international cooperation to reduce health disparities prevail.

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