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UBC Theses and Dissertations

Salvaging the global neighborhood : multilateralism and public health challenges in a divided world Aginam, V. Obijiofor 2002

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S A L V A G I N G THE G L O B A L NEIGHBOURHOOD: M U L T I L A T E R A L I S M A N D PUBLIC H E A L T H C H A L L E N G E S IN A DIVIDED WORLD by V. OBUIOFOR A G I N A M L L . B . , University of Nigeria, 1992 B.L. , Nigerian Law School, 1993 L L . M . , Queen's University at Kingston, Ontario, 1998 A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEG REE OF DOCTOR OF PHILOSOPHY in THE F A C U L T Y OF G R A D U A T E STUDIES (Faculty of Law) We accept this thesis as conforming to the required standard THE UNIVERSITY OF BRITISH C O L U M B I A January 2002 © V. Obijiofor Aginam, 2002 In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. Department of The University of British Columbia Vancouver, Canada Date in DE-6 (2/88) 11 ABSTRACT This thesis explores the relevance of international law in the multilateral protection and promotion of public health in a world sharply divided by poverty and underdevelopment. In this endeavour, the thesis predominantly uses the concept of "mutual vulnerability" to discuss the globalisation of diseases and health hazards in the emergent global neighbourhood. Because pathogens do not respect geo-political boundaries, this thesis argues that the world has become one single germ pool where there is no health sanctuary. The concept of mutual vulnerability postulates that the irrelevance or obsolescence of national boundaries to microbial threats has created the capability to immerse all of humanity in a single microbial sea. It follows, therefore, that neither protectionism nor isolationism offers any effective defences against advancing microbial forces. As a result, the thesis argues that contemporary multilateral health initiatives should be driven primarily by enlightened self-interest as opposed to parochial protectionist policy. This study is primarily situated within the discipline of international law. Nonetheless, it draws on the social sciences in its analysis of traditional medicine in Africa. It also makes overtures to medical historians in its discussion of the attitudes of societies to diseases and to the evolution of public health diplomacy, to international relations in its analysis of international regime theories, and to a number of other disciplines interested in the phenomenon of globalisation. This interdisciplinary framework for analysis offers a holistic approach to public health policy-making and Ill scholarship to counter the segmented approaches of the present era. Thus, this thesis is concerned with four related projects. First, it explores the relevance of legal interventions in the promotion and protection of public health. If health is a public good, legal interventions are indispensable intermediate strategies to deliver the final dividends of good health to the vulnerable and the poor in all societies. Second, it explores multicultural approaches to health promotion and protection and argues for a humane health order based on multicultural inclusiveness and multi-stakeholder participation in health-policy making. Using African traditional malaria therapies as a case study, the thesis urges an animation of transnational civil society networks to evolve a humane health order, one that fulfils the desired vision of harmony and fairness. Third, it makes an argument for increased collaboration among lawyers, epidemiologists and scholars of other disciplines related to public health. Using the tenets of health promotion and primary health care, the thesis urges an inter-disciplinary dialogue to facilitate the needed "epidemiological transition" across societies, especially in the developing world. Fourth, the thesis makes modest proposals towards the reduction of unequal disease burdens within and among nation-states. The thesis articulates these proposals genetically under the rubric of communitarian globalism, a paradigm that strives to meet the lofty ideals of the "law of I V humanity". In sum, it projects a humane world where all of humanity is inexorably tied in a global compact, where the health of one person rises and falls with the health of every other person, and where every country sees the health problems of other countries as its own. Arduous as these tasks may be, they are achievable only i f damaged trust of past decades is rebuilt. Because the Westphalian sovereign states lack the full capacity to exhaustively pursue all the dynamics of communitarian globalism, multilateral governance structures must necessarily extend to both state and non-state actors. In this quest, the thesis concludes, international law - with its bold claims to universal protection of human rights and the enhancement of human dignity - is indispensable as a mechanism for reconstructing the public health trust in the relations of nations and of peoples. TABLE OF CONTENTS Abstract ii Table of Contents v Acknowledgements viii Dedication x Introduction and General Overview 1 CHAPTER ONE The Conceptual Framework and Methodology of the Thesis 17 A: The Conceptual Framework of the Study 17 (i) The Research Problem(s) 17 (ii) Literature Review 24 (iii) Cluster(s) of Research Questions 34 (iv) Expected Research Findings 35 B: Research Methodology 40 C: Contributions of the Study and The Thesis 43 CHAPTER TWO The Paradox of Global Village in a Divided World 45 A: Overview of the Argument 45 B: A Global Neighbourhood? 47 C: A Divided World? 49 D: The Globalisation of Poverty: Two Levels of Inquiry on Public Health and South-North Disparities 54 (I) Globalisation of Poverty and Human Right to Health 57 (II) Globalisation of Poverty, Structural Adjustment Programs (SAPs), and Public Health in the Global South 68 E: Bridging the South-North Health Divide: Law and Development 73 F: Summary of the Arguments: Are we Still in a Global Neighbourhood? 76 CHAPTER THREE Mutual Vulnerability and Globalisation of Public Health in the Global Neighbourhood 78 A: Overview of the Argument 78 B: Retrospective Vision: Diseases, Peoples and Nation-States in Historical Perspective 82 C: Mutual Vulnerability and the Evolution of Public Health Multilateralism 84 D: Mutual Vulnerability and Contemporary Public Health Multilateralism 93 (I) The Re-emergence of Tuberculosis as a Threat in the Global North 96 (II) 'Tmported" and "Airport" Malaria in Europe and North America 99 E: The Obsolescence of the Distinction Between National & International Public Health in a Globalising World 102 F: Summary of the Arguments: Self Interest Re-Visited 105 vi CHAPTER FOUR Vulnerability of Multilateralism and Globalisation of Public Health in the Global Neighbourhood 107 A: Overview of the Argument 107 B: Nineteenth Century Infectious Disease Diplomacy: The Politics of Law and Public Health Among Sovereign States 110 C. Nineteenth Century Public Health Multilateralism: Its Colonial Origins and Post-Colonial Underpinnings 114 D: Vulnerabilities of Contemporary Public Health Multilateralism: South-North Politics at the World Health Assembly 120 E: International Law and Governance of the Mandate of the World Health Organisation: Two Levels of Inquiry 126 (I) International Health Regulations (IHR) 13 5 (II) Framework Convention on Tobacco Control (FCTC) 149 F: Global Public Health and Global Environmental Governance From a Comparative Perspective: Lessons From the Ozone Layer Convention and Global Environmental Facility 157 (I) United Nations Convention for the Protection of the Ozone Layer 1985 157 (II) The World Bank: Instrument Establishing the Global Environmental Facility (GEF) 159 G: Summary of the Arguments 162 CHAPTER FIVE Case Study: Global Malaria Policy and Ethno-Pharmacological/Traditional Medical Therapies for Malaria in Africa 164 A: Overview of the Argument 164 B: WHO's Roll-Back Malaria Campaign: Its Mission and Vision 170 C: Traditional Medicine and Malaria in South-Eastern Nigeria: The Voices of Rural Populations 175 D: Global Malaria Control Strategies: Globalisation-From-Above or Globalisation-From-Below? 181 E: Constitutive Approaches: The Wealth and Poverty of Theory in Multilateral Health Governance 187 F: Summary of the Arguments 196 CHAPTER SIX In Search of Prophylaxis for a Humane Global Health Order: Towards Communitarian Globalism - A Proposal for a Disease Non-Proliferation Multilateral Facility 199 A: Overview of the Argument: Summary of Conclusions and Recommendations 199 B: Communitarian Globalism: A Proposal for WHO-World Bank Collaboration 202 C: Towards Disease Non-Proliferation Treaty: An Argument for WHO-World Bank Global Health Funding Facility 207 D: International Law and Governance of the Global Health Fund 216 Vll E : Mutua l Vulnerabil i ty, Globalisation o f Diseases and Self-interest as Defences 220 F : Communitarian Global i sm and Nation-States 222 G : Communitarian Global ism, Non-State Actors and Globa l C i v i l Society 225 H : Fidel i ty to Humanity's Health: Br idg ing the South-North Health Div ide -The Prophylaxis for Humane Multi lateral Health Order 229 Bibl iography 233 Appendix : Non-Exhaustive Lis t o f Questions Used in Semi-Structured Interviews in South-Eastern Nigeria , 13-30 December, 2000 245 viii ACKNOWLEDGEMENTS I am profoundly indebted to a long list of persons and institutions for their emotional and intellectual support in the past three years as I explored this global issue. I thank God for sustaining me with good health in the course of writing this thesis, especially his grant of journey mercies as I traveled to many parts of the world. I am immensely indebted to my wife, Chichi, parents Osodieme and Ezeonyekachi, my two brothers and three sisters, my parents in law, Egbueziora and Margaret, my immediate and extended families particularly all the Aginam's, Ezeuzoekwe's, Uzoatu's, Aguolu's, and Nweze's, for their emotional support all these years. M y supervisory committee - Professors S. Salzberg (Research Supervisor), Ivan L . Head, O.C., Q.C., and Karin Mickelson deserve my sincere thanks. Their detailed and critical comments on many drafts of this thesis assisted my to re-focus its scope over and over again. I thank them for their patience, wisdom and words of encouragement that shaped my methodological approach to this thesis. I should like to thank the Faculty of Graduate Studies, University of British Columbia, for their financial awards of University Graduate Fellowship and Theodore F. Arnold Graduate Fellowship to me 1998-2001. Without these fellowships, this research may not have been possible. I am indebted in many ways to the Rockefeller Foundation and the Institute of International Studies, University of California at Berkeley for their travel grants that funded my participation in the African Dissertation Workshop at Berkeley, and the Health and Society in Africa Conference at Stanford University, both in 1998. The meetings introduced me to social science research methodologies, and opened a channel of communication between me, and a number of other scholars working on health-related issues. I should like to thank the World Health Organization for generously funding my tenure as Global Heath Leadership Officer at their headquarters in Geneva, Switzerland 1999-2001. It is a gross understatement to say that this thesis benefited from my two-year stay at the WHO headquarters. M y stay in Geneva provided me with the enviable privilege of personally observing the annual sessions of the World Health Assembly, the WHO Executive Board, and a series of very important meetings aimed at forging consensus by WHO's 194 member states on a number of multilateral health issues. As well I traveled to many countries for meetings, an experience that shaped the thoughts I have explored in this thesis. It was indeed a rare privilege to have worked closely with top policy-makers at the WHO on the Framework Convention on Tobacco Control and the revision of the International Health Regulations. I should like to thank particularly Dr. Douglas Bettcher, Dr. Allyn L . Taylor, Dr. Derek Yach, Sandy Cocksedge, all of the WHO, and Professor Johan Giesecke of the Karolinska Institute of Public Health, Stockholm, Sweden (formerly of the WHO) for making my stay at the WHO an experience to be treasured for life. I should also like to thank the International University of Peoples' Institutions for Peace, Rovereto, Italy, and its Director, Professor Guilliano Pontara for giving me the opportunity to attend their international training program in 1998, and for also inviting me recently to present a guest lecture on "Globalisation and Health". ix Also on the list of institutions is the Academic Council on the United Nations System (ACUNS) that funded my participation in their annual summer workshop on "International Organisation Studies" at the Center for Globalisation & Regionalisation, University of Warwick, Coventry in 2000. It was at the A C U N S workshop that I first presented draft chapters of this thesis and got detailed comments from the workshop directors - Professors Paul Wapner of the American University, Christine Chinkin of the London School of Economics and Political Science, and Jan Aart Scholte of the University of Warwick. I also got useful feedback from fellow workshop participants especially Ralph Wilde of the University of Cambridge, Kent Buse of Yale University and Ralph Njoku of Dalhousie University. At Warwick, I received overwhelming support from the Executive Director of ACUNS, Ms. Jean Krasno. I am grateful to my Geneva circle of friends and fellow scholars: Dr. Edward Kwakwa, Dr. Omar Ahmed, Robert Agyako, Shyama Kuruvilla, Dr. Obioma Nwaorgu, Dr. Maura Ricketts, William Onzivu, Dr. Blerta Maliqi, Claire Chauvin, Dr. Kanda-Bure Kamara, Dr. Patrick MaCarthy & Lisa, Dr. Tin Tin Sint, Dr. Tim Murithi, Beryl Carby-Mutambirwa, and Collin Archer. I should like to acknowledge the immense intellectual inspiration I have received over; the years from the scholarship of Professors Obiora C. Okafor, Maurice Iwu, David P. Fidler, George Alexandrowicz, Richard Falk, Anthony Anghie, Makau wa Mutua, Jutta Brunnee, James Thuo Gathii, and Dr. IPS Okafor. M y thanks are also due to my friends, Dr. Ikechi Mgbeoji, Chidi Oguamanam, Chinonye Obiagwu, Raymond Onyegu, Michael Gaveh, Gerald Heckman, Dave Mackenzie, Russell Jutlah, Samuel Amadi, Shedrack Agbakwa, Uzo Maxim Uzoatu, Pius Bola Adesanmi, Pius Lekweuwa Okoronkwor, Enyinnaya Nwaogu, Chigbo Uzokwelu, Alexie Tcheuyap, Andre Kazadi, Patrick Okaro, Ralph Njoku, Chidi Uzuapkpunwa, Emeka Chiegboka, Bibhas Vaze, Ugo Ukpabi, Chuma Ozowalu, Chinedu Ezetah, Virtus Igbokwe, Patrick Osakwe, Ifeanyi Onwuachusi, Sunday Nwafor, Reginald Nnazor, and Romanus Ejiaga, all scholars in their own right. I feel safe to say that this thesis jointly belongs to all of us. Finally, I acknowledge the 'unquantifiable' support of my foremost mentors, A . R . K Saba, Lawan Marguba, B.S.O Aguolu, Chris. Nduka, and Olisa Agbakoba (SAN), who taught me to work hard and "defer the applause of the moment to the judgment of history". DEDICATION This work is concurrently dedicated to: Osodieme, that rare gem of a woman who summoned the courage to give birth to me on a highway without any form of medical assistance in the heat of the Nigerian civil war, and my father, Ezeonyekachi who at that difficult moment of my birth abandoned his career as a teacher and became my mother's emergency gynecologist, midwife and nurse, all in one. Chichi, my beloved wife, who became part of my life in the middle of this work and inspired me to get to the finishing line. Nwando Aguolu, that little voice of love and reason whom I have missed dearly all these years of my sojourn in a foreign land in the course of this work. Millions of innocent children all over the Third World whose daily lives - for no fault of theirs - are continuously threatened by deadly, but preventable infectious and non-communicable pathogens, diseases, and health hazards. 1 A: INTRODUCTION AND GENERAL OVERVIEW In the late 1960s, my mother gave birth to me in the heat of the Nigerian civil war. M y parents lived in a small rural village in Eastern Region of Nigeria - the then breakaway Republic of Biafra - that came under heavy shelling by Nigerian federal troops. Biafra was completely cut off by an economic blockade. From the perspective of persons living in rural villages, the impression was widespread that the Nigerian federal authorities were pursuing a war of genocide. Like most wars, bombs hit both military and non-military targets, fell on innocent civilians, and completely destroyed social infrastructures. Massive hunger and starvation set in, resulting in uncontrollable malnutrition, deplorable medicare, and excessively high infant mortality. It was in this difficult and hopeless situation - life in a war-torn neighbourhood - that my mother's painful childbearing labour started when she was about to have me. Because of an acute shortage of gasoline in war-ravaged Biafra there was no car to take my mother to the nearest medical clinic then managed by Irish Catholic Missionaries, about a twenty-minute drive from the village where she lived with my father. In this medically hopeless situation, providence had it that I was born on a highway absolutely without any kind of medical assistance. M y father, who was then a teacher, became my mother's emergency midwife, nurse and gynaecologist, all in one. The above scenario, albeit a war situation, is a microcosm of the contemporary health divide between the industrialised and developing worlds. The reality is that even in times of peace and normalcy, more than half of the world's population faces very difficult and turbulent health challenges fairly similar to the above scenario. In many developing countries, access to clean water, food, housing, nutritious diets and sanitation is a luxury 2 rather than a necessity. Medical clinics are kilometres away and inaccessible, and the cost of medicines is prohibitive and beyond the reach of the majority that are poor. There is one physician to thousands of people. Babies are not vaccinated against leading killer diseases, and public health budgets are a tiny fraction of spending in other comparable public sectors like defence and foreign affairs. Strategies for primary health care, health protection and health promotion lack the needed policy interventions that will ultimately deliver health benefits to the populace as a public good. At the dawn of the twenty-first century, humanity is both on a hinge and fringe of history. Natural disasters and environmental calamities, food insecurity, wars and civil conflicts, globalisation, forced and intentional migrations, travel, trade and tourism, poverty, and underdevelopment combine to propel the emergence and spread of diseases and pathogenic microbes across national boundaries. History is replete with epidemics and pandemics that decimated a sizeable percentage of humanity - the Plague of Athens in 430 BC, the Black Death (Bubonic Plague) in 14 th century Europe; small pox, measles, scarlet fever, chicken pox and influenza in the Americas in the 16 t h and 17 t h centuries, and global swine flu in 1918-1919. Together with recent outbreaks of certain infectious diseases - ebola haemorrhagic fever, lassa-fever, hanta-virus, West Nile virus, the re-emergence of multi-drug resistant tuberculosis, the global pandemic of HIV/AIDS, and other diseases that transcend national boundaries - humanity is now re-positioned for a severe battle with the microbial world. Epidemics and pandemics serve as wake-up calls for nation states, multilateral institutions and civil society to rise to the enormous challenges and vicious threats posed to humanity by disease. Because the interaction between humanity and diseases is almost as ancient as human history, and because 3 infectious diseases have killed more people than wars, the challenge of protection of humanity's health against microbial threats should catalyse a co-ordinated multilateral policy response to facilitate the needed "epidemiologcal transition"1 across societies. The concept of health, its definition and parameters differ across societies, cultures and disciplines. It has been observed that, human health is a derivative of multiple circumstances, not all of them fully understood or subject to accurate measurement. Because health is a relative term, both its measurement and its indicators assume varying interpretations within and among societies, cultures, and geographic regions. Any endeavour to examine the health environment on a global scale- as distinct from a compound of statistics gathered from individual states-must therefore be sensitive to attitudinal variations. Not all societies place the same value on health; not all individuals accept the validity of even the most basic of health determinants.2 As a result, health has become analogous to the proverbial "road traversed by many pathways". Almost everyone has a view of what health means, what it does not mean, how to protect or promote it, its parameters and determinants, its linkages with other socio-economic factors and the paradigms - legal, legislative and social - for its progressive realisation. A discussion of public health by scholars of various disciplines or even by scholars of the same discipline can easily recall an image of the discordant voices reminiscent of the biblical Tower of Babel3, or what one scholar refers to as 1 David R. Phillips^ Health and Health Care in the Third World (New York: Longman, 1990) at 41 states that epidemiological transition assumes or implies a range of changes: in attitudes, education, diet, aspirations, urbanization, public health and health care and its technology. Basically, it is proposed that societies during modernization will move from a period of high birth and death rates and low life expectancy (perhaps 40 years of life expectancy at birth or even lower) to a stable period when life expectancy will have increased to around 70 years or longer, and death rates and birth rates will have become much lower, often approximately balancing each other numerically. 2 See "Global Health Challenges", Report of a Symposium Organised by Liu Centre for the Study of Global Issues, Vancouver, Canada, 5 March, 1999 at 2. 3 "Come, let us go down and confuse their language so they will not understand each other ....That is why it was called Babel - because there the Lord confused the language of the whole world", see Genesis 11:7-9 The Holy Bible (New International Edition, 1973). 4 "charateristics of a dinner party conversation that endeavours to recall the plot of The Two Gentlemen of Verona ".4 Most lawyers confuse the terms public health, health care, primary health care, medical services and medicare. For instance, in the study The Right to Health in the Americas,5 Roemer argued that the phrase "right to health" is an absurdity because it implies a guarantee of "perfect health".6 She opted for the phrase "right to health care", which encompasses "protective environmental services, prevention, health promotion and therapeutic services as well as related actions in sanitation, environmental engineering, housing and social welfare".7 Professor Virginia Leary has pointed out that "such an extensive definition seems contrary to common understanding of the phrase "right to heath care".8 The editors of the volume The Right to Health in the... Americas recognised that the phrase "right to health" may be conceptually misleading, and consequently suggested "a right to health protection" to include two components: a v right to health care and a right to healthy conditions.9 In the midst of non-unanimity of opinion over definition and basic components of public health by lawyers and scholars of other disciplines, this thesis charts a fuzzy landscape of multilateral health challenges in a paradoxically interdependent/globalising but sharply divided world. Notwithstanding the raging debate between the "positive"10 4 Ivan L. Head, "The Contribution of International Law to Development" (1987) Vol. X X V Canadian Yearbook of International Law 29 at 31 (describing similar confusion surrounding the definition and meaning of "development" as well as the role of international law in that dynamic). 5 H.L Fuenzalida-Puelma & S.S Connor, eds., (Washington, DC: Pan-American Health Organisation, 1989) 6 Ruth Roemer, "The Right to Health Care", ibid at 17. 7 ibid. 8 Virginia Leary, "The Right to Health in International Human Rights Law" (1994) 1 Health & Human Rights 25 at 31. 9 The Right to Health in the Americas, supra note 5 at 600. 1 0 The positive school of thought defines health ambitiously as " a state of complete physical, mental and social well-being, and not merely the absence of disease or infirmity". See for instance, Constitution of the World Health Organisation, opened for signature July 22, 1946 (Preamble) (defining health ambitiously in those terms). 5 and "negative"11 schools, this study combines the tenets of "health promotion",12 "primary health care"13 and "determinants of health"14 to explore the multiple dimensions of public health in a world polarised by socio-economic inequalities and disparities. Because these approaches are supportive of a 'positive' definition of health, this study explores public health broadly from an international legal perspective, and creates critical linkages between health, human rights, poverty, underdevelopment, the South-North divide, globalisation, multiculturalism, equity and fairness in the pursuit of health as a global public good. " The negative school of thought defines health as "the absence of disease, impairment or infirmity'!. For a discussion of this school, see S. Nadasen, Public Health Law in South Africa (Durban: Butterworths, 2000) 2. "' 1 2 The Ottawa Charter for Health Promotion defines health promotion as "the process of enabling people to increase control over, and to improve their health. To reach a state of complete physical, mental and social well-being, an individual or group must be able to identify and realise aspirations, to satisfy needs, and to change or cope with the environment. Health is...a resource for everyday life....Health is a positive concept emphasising social and personal resources, as well as physical capacities... .Health promotion is not just the responsibility of the health sector, but goes beyond health lifestyles to well-being". See Ottawa Charter for Health Promotion, November 21 1986, adopted at the first International Conference on Health Promotion, held in Ottawa, Canada in November 1986, available at http://www.who.dk/policy/ottawa.htm (Visited April 8, 2001). 1 3 The Alma-Ata Declaration on Primary Health Care 1978 defines primary health care as the "essential health care based on practical, scientifically sound and socially acceptable methods and technology made accessible to individuals and families in the community through their full participation and at a cost that the community and country can afford to maintain at every stage of their development in the spirit of self reliance and self determination. It forms an integral part both of the country's health system, of which it is the central function and main focus, and of the overall social and economic development of the community. It is the first level of contact of individuals, the family and community with the health system bringing health care as close as possible to where people live and work, and constitutes the first element of a continuing health care process". See Alma-Ata Declaration on Primary Health Care, September 12, 1978, adopted at the joint World Health Organisation and United Nations Children's Fund (WHO/UNICEF) sponsored international conference held in Alma-Ata, former USSR, Sept. 6-12 1978, "Health for A l l " Series No. 1 (Geneva: WHO, 1978), available at http://www.who.mt/hpr/docs/almaata.html (Visited Apri l 8, 2001). 1 4 The determinants of health include biological, behavioural, environmental, health system, socio-economic and socio-cultural factors, ageing of the population, science and technology, information and communication, gender, equity, and social justice. See G. Pinet, "Health Challenges of the 21 s t Century: A Legislative Approach to Health Determinants" (1998) 49 International Digest of Health Legislation 131 at 133-134, John M . Last, Public Health and Human Ecology (Stamford, Connecticut: Appleton & Lange, 6 There are many good reasons why the promotion of public health in a multilateral context deserves heightened interest and attention from scholars, national policy makers, multilateral institutions and civil society in an emerging 'global neighbourhood'. Prominent among these reasons is the increased global interdependence between nation-states and populations. As people and goods cross national boundaries in volumes hitherto unknown in recorded history, so do disease pathogens permeate geo-political boundaries to threaten populations in distant places with unprecedented speed.15 Because of the phenomenon of globalisation and the consequent vulnerability of national boundaries, the erstwhile traditional distinction between national and international- health is becoming increasingly obsolete. One consequence of globalisation is the mutual vulnerability of populations within the "global village" 1 6 to the cross-border spread of deadly infectious diseases and other microbial threats. Microbes carry no national passports; neither do they recognise geo-political boundaries or state sovereignty. Propelled by travel, trade, tourism, the phenomenon of globalisation, and a host of other factors, public health threats occasioned by an outbreak of a disease in one part of the world could easily transcend national boundaries to threaten populations elsewhere. 1998) at 7. For a discussion of determinants of health from the perspective of development, See David R. Phillips, Health and Health Care in the Third World (New York: Longman, 1990) ppl 1-19 15 See generally "Global Health Challenges", Report of a Symposium by the L iu Centre, supra note 2 (stating that modern transportation mechanisms have facilitated the rapid movement of peoples and goods. If the economic influence is global, so can be the patterns of disease transmission. A global economy demands extensive travel by business persons, and permits extensive travel by tourists, in both instances in congested long-range passenger confinement on aircraft with closed atmospheres: germ incubators) 1 6 For an insightful discussion of the concept of the global village, see M . McLuhan & B.R. Powers, The Global Village: Transformations in World Life and Media in the 21 s t Century (New York: Oxford University Press, 1992). 7 The world is fast becoming a single germ pool where there are no health sanctuaries or safe havens from pathogenic microbes. In sum, this inquiry uses the concept of mutual vulnerability to discuss the South-North health divide - disparities and unequal distribution of disease burdens between industrialised and developing worlds and the implications of these disparities for multilateralism. This study makes policy recommendations to narrow the apparent regime deficit between multilateral health policies and the realities of public health programs on the ground, especially in the developing world. In an interdependent world marked by the complexities of globalisation and socio-economic inequalities, every part of the world is vulnerable to the prevailing, emerging and re-emerging threats of disease. The mutuality of vulnerability therefore calls for genuine self-interest as nation-states grapple with the challenges of using multilateral legal and other governance mechanisms to forge a humane health order. Although the scope of this work is interdisciplinary because it draws from seminal works in public health and epidemiology, history, international relations, and development, it remains a dissertation in international law. Its primary domain is law; its focus is multilateral institutions, and its subject of analysis is international law's response to globalisation of diseases and health risks. Chapter One sketches the parameters of the research problem(s), review of literature, clusters of research questions and methodology for the study. To explore the complex ramifications of the multilateralisation of public health, this study uses the terms mutual vulnerability (mutual threats posed by disease to all of humanity in an interdependent world), and vulnerability of multilateralism (the challenge of forging multilateral consensus on cross-border spread of disease). I argue that the two are 8 inexorably linked, and that the interaction between them paradoxically highlights the intriguing tenets of self-interest (mutual co-operation) and the frustrating dangers of isolationism (protectionism). From a review of the literature, Chapter One shows that international law has been at the margins in multilateral health discourse because of two main reasons. First, most lawyers who explore the vast terrain of health focus narrowly on segmented health issues as opposed to taking a holistic approach that theorises the relevance of law in evolving multilateral health governance mechanisms. Second, lawyers and public health scholars have yet to forge symbiotic ties on multilateral health discourse and governance. I explore the relevance of law in the protection and promotion of public health multilaterally, and argue for increased collaboration between international lawyers, epidemiologists and scholars of other disciplines relevant to public health. Chapter One also explains the methodology which this study uses to answer the clusters of research questions posed by the thesis. I combine critical, analytical, and descriptive analyses of interdisciplinary literature as well as policy documents of relevant multilateral health institutions, especially the World Health Organisation. I rely on social science qualitative interviews to study ethno-pharmacological and indigenous malaria therapies of rural populations in the developing world. Further, I use these therapies to assess the effectiveness of global malaria control strategies of the World Health Organisation. Chapter Two focuses on the strange paradox of a global village in a divided world. To assess how socio-economic inequalities affect health, I conduct two levels of inquiry under the rubric of what I call 'globalisation of poverty'. The first deals with the limits of international treaty provisions on human right to health, especially the 9 importance of financial and technical resources in realising the right to health under the International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966. The second level of inquiry deals with the health-related impact of Structural Adjustment Programs (SAPs) prescribed by the international financial institutions, especially the World Bank, for most of the developing world. To break the recurring cycle of poverty, infection and illness, I explore emerging perspectives aimed at closing the contemporary South-North health divide by addressing paradigms that are better suited to promote public health in a diverse and multicultural world. Here, I am concurrently a student of Falk, 1 7 Nader,1 8 Trubek1 9 and Snyder,20 and the progressive schools of legal anthropology as well as law and third world development. Chapter Three focuses on mutual vulnerability and globalisation of public health in an emergent global neighbourhood. It,explores in detail the ramifications of mutual vulnerability: the erosion of geo-political boundaries by microbes and the consequent fragility of humans to succumb to microbial threats in an interdependent world. Historically, humans across cultures have dealt with disease and illness in a variety of ways. Although mutual vulnerability has been with humankind since at least the Plague of Athens in 430 B C , the use of international law as a governance weapon against mutual vulnerability is comparatively recent. It took more than two hundred years after the Treaty of Westphalia 1648 before France convened and hosted the first international sanitary conference in 1851. Cholera outbreaks in Europe in 1830 and 1847 were the 1 7 Richard Falk, Law in an Emerging Global Village: A Post-Westphalian Perspective (New York: Transnational Publishers, 1998). 1 8 Laura Nader, "The Anthropological Study of Law", American Anthropologist Vol.67 at 25. 1 9 David Trubek, "Towards a Social Theory of Law: A n Essay on the Study of Law and Development", (1972) 82 Yale Law Journal 1. 2 0 Francis G. Snyder, "Law and Development in the Light of Dependency Theory" (1980) 14 Law & Society Rev. 723. 10 catalysts for the earliest public health multilateral co-operation and infectious disease diplomacy. These outbreaks compelled European states to convene successive international sanitary conferences and consequently to use international sanitary conventions as governance mechanisms against the cross border spread of disease. To explain the dynamics of mutual vulnerability in the present era of multilateral crisis of emerging and re-emerging infectious disease (EIDs), I focus discussion on the re-emergence of tuberculosis and the so-called 'airport' or 'imported' malaria in the industrialised countries of the global North. Arguing that the distinction between national and international health has become obsolete, Chapter Three re-visits the ideals of self-interest to catalyse humane and fair public health multilateralism. Malaria and other diseases may have heavier mortality and morbidity burdens in the developing world, but they are no longer solely the exclusive problems of developing countries. Thus, the distinctions between 'our disease' and 'their disease', 'us' and 'them', have become anachronistic in multilateral health discourses and policy-making. r Because the complexities of mutual vulnerability are beyond the capabilities of any one country or group of countries, Chapter Four discusses the necessary multilateral approaches needed to check globalisation or transnationalisation of diseases and health risks under the rubric of the vulnerability of multilateralism. To better understand the gaps of multilateral co-operation in the present era, I discuss the politics of law and public health among sovereign states in nineteenth-century infectious disease diplomacy. Economic, strategic and other selfish interests of countries, all noticeable phenomena in the nineteenth century sanitary conferences, are still serious impediments to effective multilateralism in the present era. South-North politics at the World Health Organisation 11 and the acrimonious tone of the nuclear weapons debates at the World Health Assembly-are recent examples of the contemporary vulnerabilities of public health multilateralism. Another important feature of nineteenth-century infectious disease diplomacy was the use of international law (sanitary treaties and conventions) as mechanisms to share epidemiological information on outbreaks and cross-border spread of disease. In the nineteenth-century, international law itself was engaged in complex manoeuvres with colonialism and colonised peoples across the world. Because of this I discuss the colonial legacies which nineteenth-century international health law (sanitary conventions) bequeathed to the contemporary international health order. In other words, has the legacy of the nineteenth century exacerbated contemporary South-North disparities, and thereby propelled the resurgence and cross-border spread of disease? Has the legacy of the nineteenth-century impeded third world innovations and indigenous therapies on health protection and health promotion? Has this legacy impeded the needed synthesis of the apparently antithetical third world traditional medical therapies and global health policies? This analysis re-positions international law as a post-ontological discipline to play a key role in the governance of multilateral health issues. I analyse two legal mechanisms used by WHO to govern global health issues: the International Health Regulations (IHR) (on infectious diseases) and the ongoing negotiations for a Framework Convention on Tobacco Control (FCTC), with a focus on the gaps in the enforcement of the IHR and the potential of the FCTC. Although the World Health Organisation has innovative treaty-making powers under its constitution, I argue that extreme use of legal strategies in multilateral health work by the WHO, while absolutely necessary, may not on its own deliver the ultimate dividends of health as a public good. In public health, law 12 is only a means to an end and not an end itself. What is needed is an effective combination of legal and non-legal strategies to facilitate epidemiological transition across a range of societies. Because the WHO has no history of enforcing legally binding treaties, I conduct a comparative overview of a treaty and another multilateral mechanism that govern global environmental issues: Montreal Protocol on Substances that Deplete the Ozone Layer, and the World Bank's Global Environmental Facility. Despite the shortcomings of these multilateral environmental regimes, I argue that in its use of international law, legal strategies, and interventions to pursue its health mandate, the World Health Organisation has some good lessons to learn from the enforcement mechanisms of these environmental regimes. In Chapter Five, I explore the interaction between African traditional malaria therapies and the World Health Organisation's multilateral malaria control strategy: the Roll-Back Malaria Project. As a major partnership between governments, multilateral institutions, corporations and foundations, WHO's Roll-Back Malaria campaign: must be assessed against the behavioural practices of rural populations in malaria endemic parts of the world to analyse the extent to which global partnerships respond to the constituencies they purport to serve. Also, traditional medicine of indigenous societies in most of Africa has often been dismissed as either witchcraft, quackery, sorcery, magic, or unscientific barbarism that is unfit for integration into the multilateral health policy framework. I assess these indigenous therapies, and argue that African traditional herbal medicine used for ages by local communities as therapies for malaria can be synthesised with, and integrated within, multilateral malaria control strategies. Contemporary multilateral governance of transnational problems like public health (malaria) is 13 witnessing a tension between a coalition of nation-states and another coalition of civil society groups and non-state actors. Policies incubated at multilateral forums by states as repositories of state power are increasingly viewed as harmful to a range of public goods: the environment, public health, and human rights. As a result of gaps between these global policies and realities on the ground, they are often characterised as 'globalisation-from-above'. Applied to the interaction between indigenous malaria therapies of malaria endemic societies and WHO's Roll-Back Malaria, would a contemporary multilateral malaria control strategy be considered globalisation-from-above? The interviews I conducted with traditional healers, rural populations and western-trained physicians practising in rural communities in Nigeria suggest that there is a regime deficit between the global malaria control policy of multilateral institutions and the behavioural and ethno-pharmacological practices of rural populations in malaria endemic societies in Africa. Traditional medicine, which is not a central and integral part of WHO's Roll-Back Malaria Project is popular among rural populations in malaria endemic societies. The conundrum here is that despite the popularity of traditional medicine, the phenomenon of globalisation has started to erode traditional medical therapies in most of the developing world at an alarming speed, and is simultaneously doing little to place western medicines within the reach of these third world populations. This conundrum opens an opportunity for multifaceted dialogue across cultural, disciplinary and theoretical schools. The concern of these dialogues, which I call 'constitutive approaches', is the evolution of policy recommendations that would alter the global burden of diseases presently unequally distributed between populations of the industrialised and developing worlds. 14 Chapter Six discusses these multilateral policy recommendations. I coin the term communitarian globalism to focus the thrust of these recommendations on the active participation of every important player and actor in multilateral health governance: multilateral institutions, nation-states, non-state actors, and civil society. Because underdevelopment and poverty breed diseases, and because enormous resources are needed to re-build public health infrastructures across the world, I sketch the urgent collaboration that I foresee between the World Bank (because of its immense resources) and other multilateral institutions - the World Health Organisation (WHO) and the United Nations Children's Fund (UNICEF). The World Bank has been severely critiqued for its obsession with extreme neo-liberal policies - part of which I examine in Chapter Two - therefore I suggest that we search for commonalties between the bank's funded health programs and WHO's mandate along the lines of humane and equitable policies like the Alma-Ata Declaration on Primary Health Care. These commonalties will pave the way for a disease non-proliferation treaty: a recommendation of this thesis for a multilateral funding facility very similar to the multilateral fund regimes of the Montreal Protocol and the Global Environmental Facility. Coincidentally, this recommendation is now receiving its highest multilateral imprimatur in the form of the Global HTV and Health Fund jointly being proposed by U N Secretary-General Kofi Annan, the G-8 Summit and the United Nations General Assembly to curb the global threats of HIV/AIDS, Malaria and Tuberculosis. I discuss the potential problems and prospects of the global health fund regime and argue that in line with communitarian globalism, its modus operandi must recognise divergent national and socio-economic contexts. In line with multicultural approaches to health, the fund must draw from expertise among civil 15 society organisations and the United Nations system, as well as sustainable practices of populations that live with these diseases. The fund must be transparent and accountable to constituencies where the burdens of these diseases are heaviest. International law, I suggest, must play an important role in the governance of the fund. Its constitution and governing instruments must reflect equity, justice and fairness and must be sensitive to unequal disease burdens between the global South and the global North. Although this thesis argues very strenuously that the distinction between national and international health has become obsolete because of globalisation, and that mutual vulnerability compels multilateral approaches to cross-border disease spread, it does not suggest that nation-states will become completely irrelevant in a system of global health governance. Our present world-order is still composed of sovereign nation-sates. Because of this, communitarian globalism foresees certain key roles for nation-states. The onus of basic curative, protective, preventive and promotional health-care services lies substantially on Governments in national jurisdictions. These services have multiple dimensions: basic sanitation and hygiene, resource-allocation decisions, poverty alleviation^ food security, regulation of health insurance and other policy, legal, and administrative interventions. As I suggest, it is only when Governments begin to address these basic and essential health services within national jurisdictions that the transnational spread of disease and microbial threats in an inter-dependent world will start to diminish. Notwithstanding the continued relevance of the state, communitarian globalism - as I use it in this study -poses a serious challenge to the Westphalian system of multilateralism. The promise of non-state actors in global governance is boosted by the persistent exclusion of a sizeable part of humanity from the protective structures of the nation-state since the ascendancy of 16 the State from the Peace of Westphalia 1648 to the present day.2 1 Thus, the future of multilateral health governance should paradoxically look like a fragmented but unified fabric involving a multiplicity of actors - both states and transnational networks of civil society actors. Finally, I conclude that absolute fidelity to the protection of humanity's health in an interdependent world requires enormous sacrifices and multilateral approaches. Unintentional or wilful tolerance of an infectious disease in one part of the world constitutes a potential threat to populations in distant places. What ought we do to protect populations in the emergent global village from microbial threats? Neither isolationism nor protectionism has the capacity to provide solid defences against advancing microbial forces. Rather, the primacy of enlightened self-interest should guide both States and non-state actors to forge future multilateral ties and consensus on global health challenges in a divided world. This study is therefore an exploration of self-interest - its prospects and potentials for disease non-proliferation in our global neighbourhood. 21 See Richard Falk, supra note 17 at 35. 17 CHAPTER ONE THE CONCEPTUAL FRAMEWORK A N D METHODOLOGY OF THE THESIS A : THE CONCEPTUAL FRAMEWORK OF THE STUDY I: THE RESEARCH PROBLEM(S): That the wor ld is a "global v i l lage" 1 or a "global neighbourhood" 2 is a truism that metaphorically underscores the increasing and inevitable interdependence o f populations, markets and nation-states. Since the Peace o f Westphalia in 1648, multilateralism has grappled with the multiple dimensions o f the economic, health, social, and environmental vicissitudes o f global interdependence. A plethora o f globalizing forces has since emerged in the form o f complex international airline networks, flows o f foreign direct investment, ecological tourism, religious pilgrimages, international sports festivals, regionalism, and free trading blocs. 3 But, almost simultaneously, the emergent global village is threatened by a surge in the number o f refugees fleeing c i v i l wars and conflicts, environmental and natural disasters, social and economic disparities between the South and the North, as we l l as the emergence, re-emergence, and prevalence o f infectious diseases and other transboundary health hazards. In the twenty-first century, very few, i f any, urgent public health events are solely within the purview o f national jurisdictions any longer. One obvious consequence o f globalization is the increased risk o f the international spread o f diseases and hazards. People and goods are crossing national borders in massive 1 See M . McLuhan & B . R Powers, The Global Village: Transformations in World Life and Media in the 2 I s ' Century (New York: Oxford University Press, 1992). 2 See Our Global Neigbourhood: The Report of the Commission on Global Governance. Co-Chaired by I. Carlsson & S. Ramphal, (New York: Oxford University Press, 1995). 3 L . Sohn & T. Buergenthal (eds.), The Movement of Persons Across Borders (American Society of International Law; Studies in Transnational Legal Policy No.23, 1992). 18 numbers unparalleled in human history. In the field o f international public health, it has been argued that the powerful impetus o f globalisation undermines state sovereignty as power flows out o f the formal apparatus o f the state into the hands o f industrialists, investment bankers, media moguls and transnational corporations. The pervasive impact o f globalisation, which is apparent in telecommunications, manufacturing strategies, international trade, and global capital flows, has shattered the traditional distinction between national and international health. This distinction is no longer relevant because globalisation has enabled pathogenic microbes to spread illness and death globally wi th unprecedented speed. 4 The fact that an outbreak o f an infectious disease anywhere in an interdependent and increasingly globalising world poses a threat to populations everywhere makes multilateralism an inevitable option in the battle against diseases and pathogenic microbes. The W o r l d Health Organisation argues that infectious diseases now constitute a "wor ld cr is is" . 5 Leading epidemiologists agree with the W H O . 6 A s observed by John M . Last, dangers to health anywhere on earth are dangers to health everywhere. International health, therefore, means more than just the health problems peculiar to developing countries...There are many good reasons why we should be concerned about wor ld health. The most obvious is self-interest: Some o f the world 's health problems endanger us a l l . . . 7 I f 'self-interest' must compel or induce effective, fair and humane multilateral health co-operation, why then has so little been done in this regard? Put another way, why 4 D. Fidler, "The Globalization of Public Health: Emerging Infectious Diseases and International Relations" (1997) V o l . 5 N o . l Indiana J. of Global Legal Studies 1. See also, D. Yach & D. Bencher, "The Globalization of Public Health, 1: Threats and Opportunities" (1998) 88 A m . J. of Pub. Health 735, G. Walt, "Globalisation of International Health" (1998) 351 Lancet 434. 5 World Health Organisation, World Health Report 1996: Fighting Disease, Fostering Development (Geneva: W H O , 1996) 1. 6 Paul F. Basch, A Textbook of International Health (Oxford: Oxford University Press, 1990), Laurie Garret, The Coming Plague: Newly Emerging Diseases in a World Out of Balance (New York: Penguin Books, 1994). 7 John M . Last, Public Health and Human Ecology 2 n d ed. (Stamford, Connecticut: Appleton & Lang, 1998)337. 19 have nation-states been largely reluctant to act together to salvage the global neighbourhood from the calamities o f disease? The utility o f these questions is twofold. First they reveal a strange paradox facing scholars and multilateral institutions: the paradox o f simultaneously l iv ing in a global neighbourhood and a divided world . The first l imb o f the paradox projects an ideal o f a fair, just and humane global neighbourhood, where a l l o f humanity are inexorably part o f a global compact tied by the bonds o f human dignity and values. The second l imb o f the paradox projects an unfair global neighbourhood marked by unequal disease burdens on the populations i n the South and the North: poverty and underdevelopment o f over seventy percent o f the world 's nation-states and populations, mainly i n the global South. Second, these questions hypothesise the apparent apathy and indifference o f the global North (developed and industrialised world) towards global health challenges. This apathy and indifference is evidenced in the weakness o f the contemporary international normative order on public health, and remains a major contributor to underdevelopment and the heavy disease burdens i n the developing wor ld o f the global South. This inquiry strives to find support for this hypothesis in the bias, nature, l imited scope, and colonial implications o f the international sanitary regimes from 1851 to the formation o f the W o r l d Health Organisation i n 1948. This bias, I argue, is sti l l manifest i n present-day public health multilateralism and diplomacy. There is an imbalance i n the priorities o f multilateral institutions including 8 1 do not argue that every single health problem in the developing world constitutes a global problem that should be placed within the agenda of multilateralism. Nutrition, basic sanitation, housing, civi l wars and political conflicts, environmental disasters, each affects human health in significant ways. It is the primary responsibility of the Government in every country, especially in the developing world, to respond to these health-related social problems. M y concern in this thesis hinges on health problems that are far beyond the surveillance capacity and developmental capability of individual countries: those health problems that are being propelled by underdevelopment and globalisation in ways that threaten all populations within the global village irrespective of the jurisdiction or origin of the disease or pathogen in question. 20 the United Nations organs and specialised agencies wi th a mandate on global health issues. Today, the vicious threat posed by diseases and pathogenic microbes to our global neighbourhood - more than ever before in the past five millennia - is predicated on two slightly different but inexorably l inked concepts: the mutuality of vulnerability and the vulnerability of multilateralism.9 Mutua l vulnerabi l i ty 1 0 refers to the traditional, emerging and re-emerging threats which South-North" disparities and globalisation o f diseases and health hazards pose to al l populations i n the global neighbourhood irrespective o f whether they l ive in the South or North. The re-emergence o f tuberculosis as a public health threat i n Europe and North Amer ica in the decade o f the 1990s and the so called 'airport or imported malaria ' used to explain isolated malaria outbreaks i n the global North, are examples o f mutual vulnerability o f populations i n an interdependent world . The emergence o f new < diseases and re-emergence o f o ld ones across the wor ld constitutes a global crisis o f diverse and complex magnitude. Vulnerabil i ty, which first affected national boundaries through the globalisation o f markets, now has a marked impact on populations through the 9 This rhetorical exploration of microbe-humanity interaction in an interdependent world as 'mutuality of vulnerability and vulnerability of multilateralism', is inspired by a similar rhetorical exploration of the inequities of the international system as "international order o f poverty and poverty of the international order" by Mohammed Bedjaoui, Towards a New International Economic Order (Paris: U N E S C O , 1979). 1 0 The concept of mutual vulnerability in multilateral interdependence of nation-states is not new. What is new about the concept as I use it in this study is its relevance in, and application to, the complexities of transnationalisation of diseases and health hazards in a globalising world. For earlier use of the concept of "mutual vulnerability" to explore the international political economy of development, See Ivan L. Head, On a Hinge of History: The Mutual Vulnerability of South and North (Toronto: The University o f Toronto Press, in association with the International Development Research Centre, 1991); Jorge Nef, Human Security and Mutual Vulnerability: The Global Political Economy of Development and Underdevelopment. 2 n d Ed., (Ottawa: IDRC, 1999). This study benefits from the insightful analysis of the concept by Head and Nef. 1 1 Throughout this thesis, I will be using the term "South-North" as suggested by Ivan L . Head, On a Hinge of History: The Mutual Vulnerability of South and North. Id., at 14. Head prefers "South-North" as a more accurate reflection of the current international system and argues that the popular usage of 21 globalisation o f diseases. F rom Thucydide's account o f the Athenian plague o f 4 3 0 B C 1 2 to cholera outbreaks i n mid-nineteenth century Europe, down to contemporary infectious disease diplomacy, the mutual vulnerability o f populations across national boundaries has become the dominant concept i n public health discourses and pol icy-making agendas. Related to this is the twin concept o f vulnerability o f multilateralism, which I use to explain the gaps, shortcomings and politics o f early and contemporary public health multi lateralism. 1 3 The politics, gaps and shortcomings o f nineteenth-century public health multilateralism, which were dominant features at the first International Sanitary Conference in 1851, 1 4 are sti l l conspicuous in twenty-first century public health multilateralism. The vulnerability o f multilateralism, in the form o f South-North politics, is sti l l wi th the W o r l d Health Organisation - the Uni ted Nations specialised agency wi th a mandate to "act as the directing and co-ordinating authority on international health w o r k " . 1 5 To assess how the vulnerability o f multilateralism has affected the work and mandate o f the W o r l d Health Organisation, I conduct two levels o f inquiry. The first deals wi th selected issues o f South-North politics at the proceedings o f the W o r l d Health Assembly and the second offers a critical assessment o f the W H O ' s on-going Ro l l -Back Malar ia Project. M y aim in the first level o f inquiry is to determine the extent to which South-"North-South" is misleading because "it lends weight to the impression that the South is the diminutive". 1 2 Thucydides, History of the Peloponnesian War (R. Warner, trans.) (Harmondsworth: Penguin Books, 1954). 1 3 M y use of the term vulnerability of multilateralism is similar, but not in pari materia, with Microbialpolitik, a term coined by David P. Fidler, which he uses to describe the "international politics produced as states attempt to deal with pathogenic microbes". See David P. Fidler, "Microbialpolitik: Infectious Diseases and International Relations" (1998) 14 A m . Uni . Int'l Law Rev. 1. M y use of the term vulnerability of multilateralism embraces other variables outside politics - gaps, failures, shortcomings, frustrations, and bureaucracy of early and contemporary public health multilateral initiatives. 1 4 For a discussion and chronology of the nineteenth century international sanitary conferences, see N . Horward-Jones, The Scientific background of the International Sanitary Conferences 1851-1938 (Geneva: W H O , 1975). 15 See Constitution of the World Health Organisation, World Health Organisation: Basic Documents. 2 n d Edition (Geneva: W H O , 1999) 7. 22 North rhetoric and disparities have affected the effectiveness o f a multilateral organisation l ike the W H O . M y second level o f inquiry explores the extent o f the integration o f indigenous medical therapies, and sustainable behavioural practices prevalent in the malaria-endemic societies (particularly i n Africa) into W H O ' s R o l l -Back Malar ia Project - an ongoing global multilateral initiative to cut malaria mortality and morbidity i n the developing world. Since I agree with Richald Fa lk ' s critique o f contemporary market-driven global civi l isat ion as "globalism-from-above", 1 6 the centrality o f m y assessment o f the Ro l l -Back Malar ia Project focuses on its integration with, or exclusion of, indigenous medical practices o f populations i n malaria-endemic Afr ican societies. Thus, this study argues that the complex interaction o f the mutuality o f vulnerability and the vulnerability o f multilateralism has impacted heavily on global health discourses and pol icy-making. Far from being effective, fair, or humane, public health multilateralism has remained at a crossroads. A s nation-states navigate between the Scylla o f protectionism driven by what they perceive as strategic interests, and the Charybdis o f protection o f public health, the gap between the global South and the global North in terms o f disease burdens continues to widen. The impact o f this gu l f -a k ind o f development apartheid - between the South and the North takes its tol l on mil l ions o f persons across the world. F rom the perspective o f infectious diseases, both the mutuality o f vulnerability and the vulnerability o f multilateralism provide the catalysts for a reform o f multilateral health co-operation. This thesis explores these two related concepts and charts a future multilateralism that is humane and responsive to the health needs o f populations, especially in the developing wor ld - what Richard 1 6 R. Falk, "The Coming Global Civilization: Neo-Liberal or Humanist", in Legal Visions of the 21 s t Century: Essays in Honour o f Judge Christopher Weeramantrv. Antony Anghie & Garry Sturgess eds., (The Hague: Kluwer Law International, 1998) 15. See also R. Falk, Law in an Emerging Global Village: A Post-Westphalian Perspective (New York: Transnational Publishers, 1998) 189. 23 Falk has identified as global partnership that "fulfils the v is ion o f unity and harmony". 1 7 The first task is to explore mutual vulnerability in a way that would induce genuine self-interest. To ask one simple question: i f populations i n the Uni ted States or Canada were in real danger o f being infected by an outbreak o f ebola haemorrhagic fever in Democratic Republic o f Congo or Chagas disease in B o l i v i a (through global commerce and movement o f people across national boundaries), would this induce sufficient self-interest from either the Uni ted States or Canada to assist in developing the surveillance capacity o f public health facilities in either B o l i v i a or Congo? W o u l d this perceived threat o f ebola fever or chagas disease compel a quia timet18 transfer o f resources from a developed to a developing country through a multilateral institution? Discussing mutual vulnerability from this perspective paves the way for a reconstructive inquiry, a reconstruction that strives to reform contemporary unfair public health multilateralism. A s a response to the vulnerability o f multilateralism, this reconstructive mission, inter alia, searches for alternatives and inevitably makes an argument for fairness, equity and humanistic approaches to multilateral co-operation in the global public health arena. In this endeavour, with some caveats I w i l l be a student o f Thomas Franck 's fairness discourse 1 9 , Richard F a l k ' s 2 0 humane wor ld order and John R a w l s ' 2 1 theory o f jus t ice . 2 2 I f populations within countries - developed or developing, r ich or poor, 17 ibid. 1 8 A quia timet action is "an action based on fear of some probable injury to a person's interests". See H .C Black, Black's Law Dictionary 5 t h ed., (St. Paul, Minnesota: West Publishing Co., 1979) 1122. I use this expression in a policy context to catalyse self interest in multilateral health co-operation between countries as opposed to a legal context. 1 9 Thomas M . Franck, Fairness in International Law and Institutions (Oxford: Clarendon Press, 1995). 2 0 Richard A . Falk, On Humane Governance: Towards a New World Politics (College Park, P A : Penn. State University Press, 1995). 2 1 John Rawls, A Theory O f Justice Revised ed. (Cambridge: Harvard University Press, 1999). 2 2 Although the liberal scholarships of Franck and Rawls are compelling and persuasive, I am not completely wedded to their views as infallible pathways to humane, equitable and fair public health 24 strong or weak, South or North; are v ic ious ly threatened by diseases wi th a comparable degree o f propensity - then mutual vulnerability would remain a persuasive catalyst capable o f overriding the vulnerabilities o f multilateralisation o f public health i n the twenty-first century. Al though this initiative is beginning to receive some attention from multilateral institutions involved in the R o l l - B a c k Malar ia Project , 2 3 more efforts and resources are sti l l needed to salvage the global neighbourhood and its endangered populations from the threat o f diseases and pathogenic microbes. Based on an assessment o f available literature and contemporary multilateral approaches, this thesis strives to make pol icy recommendations for future normative global partnerships i n the domain o f public health diplomacy and the globalisation o f diseases. II: LITERATURE REVIEW Public health is a subject within the scientific discipline o f epidemiology. 2 4 Has international law anything to do with epidemiology? O f what relevance is an international covenant, treaty, or rule to cross-border threats o f diseases? C a n public health effectively be the subject o f international normative governance mechanisms? Can an international lawyer and an epidemiologist forge a collaborative alliance on multilateral health policy-making and scholarship? Mos t regrettably, the failure to address these questions has stultified scholarly progress and academic inquiry on a plethora o f multilateral issues where international law and public health intersect. Evidence from the literature persuasively suggests that international lawyers have multilateralism. Thus, I use the more critical approach of Falk to chart a constitutive theoretical and policy approach to health promotion in a divided world. 2 3 Roll-Back Malaria Project is a global public-private partnership by W H O , U N I C E F , U N D P , The World Bank, leading global pharmaceutical corporations, and private foundations. 2 4 Epidemiology is defined as "the study of the distribution and determinants of health-related states or events in specified populations, and the application of this study to control of health problems". See 25 remained largely passive within the scholarly edifice o f global public health. Multi lateral public health institutions have also discarded international law as a useful operational tool in the evolution o f global health policies. Epidemiologists, on the other hand, have often complacently analysed global health issues from the narrow parameters o f medical science. Notwithstanding a l l o f these shortcomings, this thesis argues that law and public health in the global arena is l ike the proverbial mansion with many rooms or a road traversed by many paths. International lawyers, most unfortunately, have confined themselves to the peripheries - either opting to sit i n one o f the rooms in the mansion or to simply stand on one o f the paths. In exploring the vast terrain o f multilateral health, most lawyers adopt segmented approaches to inexorably-linked and interdisciplinary public health issues. Over ly legalistic, the bulk o f seminal works by lawyers on bio-ethics, the human right to health, the human right to a healthy environment, the health implications o f war and use o f nuclear weapons, international trade and public health - often display an obvious lack o f holistic and interdisciplinary approaches. Even within "mainstream multilateral health scholarship and po l icy-making" , 2 5 extreme legalism remains a dominant feature i n the works o f the very few international lawyers who have explored the interaction o f global public health and international law wi th commendable intellectual rigour. In her discussion o f the mandate o f the W o r l d Health Organisation, universal access to conditions for health, and the role o f international health regulations in global infectious disease surveillance, Taylor drew heavily from W H O ' s statistics on disparities i n health John M . Last, A Dictionary of Epidemiology 3 r ed. (New York/Oxford/Toronto: Oxford University Press, 1995)54. 2 5 I use the expression "mainstream multilateral health policy-making" to refer to multilateral approaches to, and normative governance of, cross-border health challenges that are beyond the capacity of one individual country or a group countries, including the effects of social and economic disparities within and among countries on multilateral health initiatives. These approaches and governance mechanisms involve a symbiosis of legal and non-legal interventions. 26 standards between r ich and poor countries. Taylor ' s critique o f W H O ' s reluctance to utilize law and legal interventions to facilitate its global health strategies implies that the essence o f law and legalism in multilateral pol icy-making is teleological - that law holds a certain promise towards a significant reduction o f disease burdens within and among countries. Fidler, one o f the most prolific contemporary scholars o f international law and public health, canvasses similar arguments for increased use o f international law i n multilateral health strategies. 2 8 H i s recent work International L a w and Infectious Diseases sketches an international normative paradigm for globalization o f public health. U s i n g international law and international relations theoretical and historical frameworks, Fidler explores critical linkages between global public health and human rights, international trade, environmental issues, war and weapons. A s put by Professor Ian Brownl ie , . . .F idler has used international law as a framework wi thin which to organise his study o f the normative and institutional techniques employed by the international community in order to control and prevent the spread o f disease. H i s legal expertise is infused by his knowledge o f international relations thinking and techniques. The outcome is a successful study o f considerable or iginal i ty . 3 0 Fidler's treatise posits the challenge o f emerging and re-emerging infectious disease threats as a challenge for the international community . 3 1 H i s historical account o f See A . L Taylor, "Making the World Health Organisation Work: A Legal Framework for Universal Access to the Conditions for Health" (1992) 18 A m . J. of Law & Medicine 301, A . L Taylor, "Controlling the Global Spread of Infectious Diseases: Toward a Reinforced Role for the International Health Regulations" (1997) 33 Houston Law Rev. 1326. 2 1 ibid. 28 See David P. Fidler, "Return of the Fourth Horseman: Emerging Infectious Diseases and International Law" (1997) 81 Minnesota Law Rev. 771; David P. Fidler, "The Future of the World Health Organisation: What Role for International Law" (1998) 31 Vanderbilt J. of Transnational Law 1079; David P. Fidler, "International Law and Global Public Health" (1999) 48 The University of Kansas Law Rev. 1. For similar arguments for increased use of legal strategies in multilateral health initiatives, see B . J Plotkin & Anne-Marie Kimball , "Designing the International Policy and Legal Framework for the Control of Infectious Diseases: First Steps" (1997) 3 Emerging Infectious Diseases 1. 2 9 David P. Fidler, International Law and Infectious Diseases (Oxford: Clarendon Press, 1999). 3 0 ibid "editor's preface". 31 ibid at 5-19. 27 multilateral health co-operation after mid-nineteenth century transboundary outbreaks o f cholera in Europe vindicates the central argument o f this thesis - that mutual vulnerability to disease and pathogenic threats in an interdependent wor ld elevates public health to a high pedestal i n the agenda o f multilateralism. Thus, the second half o f the nineteenth century emerged as an era o f intensive public health diplomacy marked by a series o f international sanitary conferences aimed at the exchange o f epidemiological information on cholera and other disease outbreaks wi th in Europe, harmonisation o f quarantines, creation o f an international surveillance system, and the creation o f multilateral health organisations. 3 2 One positive result o f this multilateral endeavour was the evolution o f the International Health Regulations ( I H R ) 3 3 as the legal basis for global surveillance o f certain infectious diseases as we l l as the groundwork for the establishment o f international health organisations 3 4 to enforce the emergent multilateral legal strategies for disease surveillance. A p p l y i n g a l l o f these^to microbialpolitik, Fidler's term for "a mixture o f the ordinary dynamics o f international relations and the special dynamics produced by the challenges posed by pathogenic microbes", 3 5 Fidler - l ike most lawyers - posits global infectious disease threats wi th in international legal and treaty regimes: a combination o f what he calls the "concept o f global health jurisprudence" and a proposal for a W H O Framework Convention on Infectious Disease Prevention and Con t ro l . 3 6 Al though Fidler ' s treatise looks comprehensive, it misses a key dimension in the international legal perspective 3 2 ibid at 21-52. 3 3 World Health Organisation, International Health Regulations. 3 r d Annotated Edition (Geneva: W H O , 1983). 3 4 Fidler mentions the establishment of the Pan-American Sanitary Bureau in 1902, International Office of Public Health in 1907, and the Health Organisation of the League of Nations in 1923 before the World Health Organisation was founded in 1948. See Fidler, Id. pp47-52. 28 on global public health: a strong South-North component. The focus o f this present inquiry is on international law and global public health from a somewhat different perspective: South-North disparities as a propelling factor in mutual vulnerability. South-North disparities and mutual vulnerability are peripheral to Fidler ' s enquiry. In his discussion o f 'globalisation o f public health', he observed that, The vulnerability States sense today is analogous to the vulnerability that forced nineteenth-century European States into international health co-operation and international law on infectious disease control . 3 8 In his discussion o f the history o f international law in the control o f infectious diseases, he argued that the development o f multilateral public health co-operation in the nineteenth-century was motivated by fear o f importation o f non-European diseases (notably As i an diseases) into Europe . 3 9 Despite the substantial anchorage o f this study on South-North disparities - a perspective different from Fidler's, it nonetheless draws heavily from Fidler's insights on the history o f public health co-operation through the nineteenth century international sanitary conferences. A s wel l , this study benefits immensely from his application o f international relations theories to microbialpolitik, colonial origins, and post-colonial implications o f the nineteenth century international (Euro-centric) health order, and the relevance o f international law (including international human rights treaties) to global health promotion and protection. Whi le this thesis endorses the arguments for increased use o f legal strategies in global health Fidler himself recognised this fact when he wrote, "although the monograph provides a comprehensive international legal analysis of infectious diseases, it does not exhaust this topic. Each area of international law analysed is in flux, making it impossible to provide a definitive analysis. Another challenge was writing for not only international legal specialists but also public health experts who are generally unfamiliar with international law. Despite these problems, this monograph contributes to a neglected area of international legal, public health, and international relations scholarship and encourages others to explore this increasingly critical global issue", ibid at 4. 38 Ibid at 7. 3 9 Ibid at 28-35. South-North disparities and global health challenges received a more detailed attention from Fidler in an earlier article albeit from a strictly international relations perspective. See David P. Fidler, "Microbialpolitik: Infectious Diseases and International Relations (1998) 14 A m . Univ. Int'l Law Rev. 1. 29 pol icy-making as canvassed by Taylor, Fidler and other international lawyers, it goes further to explore how South-North inequalities impact on the health o f populations in a sharply divided world. L a w , I argue, may simply be a means to an end but not an end i n itself. No t discarding legal strategies entirely, I coin the term communitarian globalism to argue for increased participation o f global c i v i l society in multilateral health forums as wel l as the need for a 'disease non-proliferation treaty' through a multilateral funding facility regulated by international law. The apathy and disenchantment o f international lawyers towards mainstream multilateral health pol icy-making is not exactly shared by scholars o f other academic disciplines related to public health. Scholars o f his tory, 4 0 international relations, 4 1 development, 4 2 and o f course the undisputed owners o f public health, epidemiologists 4 3 - have enriched vast areas o f public health scholarship with more incisive academic inquiries. F rom the discipline o f history emerges the fact that crossr border spread o f epidemics is as old as humanity. The movement o f populations across national boundaries has always had disease implications for a l l o f humanity. One o f the earliest recorded epidemics - the plague o f Athens in 430 B C - medical For some relevant works on global public health from historical perspectives, see D. Porter, Health. Civilization and the State: A History of Public Health From Ancient to Modern Times (London & New York: Routledge, 1999); J.N Hayes, The Burdens of Disease: Epidemics and Human Response in Western History (New Brunswick/New Jersey/London: Rutgers University Press, 1998); W . H McNe i l l , Plagues and Peoples (New York: Doubleday, 1976); N . Howard-Jones, The Scientific Background of the International Sanitary Conferences 1851-1938 (Geneva: W H O , 1975); N . M Goodman, International Health Organizations and Their Work 2 n d ed. (London: Churchill Livingstone, 1977); H . Zinsser, Rats, Lice and History: A Chronicle o f Pestilence and Plagues (New York: Black Dog & Leventhal, 1963). 4 1 D. Yach & D. Bettcher, "The Globalization of Public Health II: The Convergence of Self-interest and Altruism" (1998) 88 A m . J. of Pub. Health 738; David P. Fidler, "The Globalization of Public Health: Emerging Infectious Diseases and International Relations" (1997) 5 Indiana J. Global Legal Stud. 11; H. Nakajima, "Global Disease Threats and Foreign Policy" (1997) Brown J. o f World Affairs 319; M . Zacher, "Global Epidemiological Surveillance: International Co-operation to Monitor Infectious Diseases" in Global Public Goods: International Co-operation in the 21 s t Century. I. Kaul et al, eds. (New York: U N D P & Oxford University Press, 1999) 266. 4 2 For perspectives on global underdevelopment, poverty and public health, see R Keily & P. Marfleet eds., Globalisation and the Third World (London: Routledge, 1998); M . Chossudovsky, The Globalisation of Poverty: Impacts of IMF and World Bank Reforms (Penang, Malaysia: Third World Network, 1997); K . Watkins, Oxfam Poverty Report (Oxford: Oxfam, 1995). 43 See generally, John M . Last, supra note 7; Paul Basch, supra note 6. 30 historians tell us, resulted from cross-border movement o f troops during the Pelopennesian war . 4 4 The arrival o f Columbus in the Americas in the fifteenth century marked the devastation o f Native American populations by imported European diseases: measles, mumps, chicken pox, and scarlet fever 4 5 From the perspective o f international relations, commentators observe that the cross-border spread o f infectious diseases constitutes a security threat deserving o f urgent attention by governments as a top foreign pol icy issue 4 6 Development theorists and commentators argue that policies o f powerful multilateral financial institutions l ike the W o r l d Bank and the International Monetary Fund ( IMF) are hostile to their host social and economic environments in the developing world , the end result being "globalism-from-above" with adverse implications for, and deleterious effects on, the health o f populations in their recipient countr ies . 4 7 Recent trends in epidemiology use macro-economic models to explore the unequal distribution o f the burdens o f diseases and health risks in a wor ld sharply divided by inequalities, poverty, and underdevelopment. What emerges from these interdisciplinary perspectives is the obvious fact that a cross-border resurgence o f diseases, as the W o r l d Health Organisation observes, now constitutes a global crisis that requires multilateral approaches 4 9 The relevance o f these divergent perspectives makes this thesis interdisciplinary and enriches its analysis from both theoretical and pol icy angles. The history o f multilateralism in the field o f public health in nineteenth-century Europe provides the opportunity for an 4 4 Thucydides, History of the Peloponnesian War (Harmondsworth: Penguin Books, 1954). 4 5 See Porter, supra note 40 at 46; Sheldon Watts, Epidemics and History: Disease. Power and Imperialism (New Haven/London: Yale University Press, 1997) 89-121. 4 6 See generally H . Nakajima, supra note 41, David P. Fidler, "The Globalisation of Public Health: Emerging Infectious Diseases and International Relations", supra note 41. 4 7 M . Chossudovsky, supra note 42. 48 See C J L Murray & A . Lopez, Global Burden of Disease (Cambridge: Harvard University Press, 1996). 4 9 See W H O , World Health Report 1996: Fighting Disease. Fostering Development, supra note 5. 31 intellectual exploration and deeper understanding o f the colonial and post-colonial underpinnings o f early international law and public health. It is through international relations perspectives that the politics and theoretical complexities o f multilateralism and international regimes w i l l be understood. A n d as international lawyers, our understanding o f the dynamics o f development equips us wi th additional skills to deeply appreciate and explain South-North disparities wi th in the confines o f our international legal domain. Drawing from these interdisciplinary sources, the originality o f this thesis -although palpable - is subject to a caveat. For one runs the risk o f being charged with 'intellectual blasphemy' for c la iming originality in international law on the vast terrain o f South-North disparities. In fact the past fifty years have witnessed an unprecedented surge and accelerated momentum in the scholarly exploration o f the < multiple dimensions o f South-North issues - development, human rights, sovereignty over natural resources, environment, culture and imperialism - wi th commendable intellectual rigour. This writer is therefore aware o f seminal works by distinguished international jur is ts 5 0 in this area o f the law including many declarations and 'soft-l aw ' mechanisms by multilateral institutions. Indeed the whole question o f the N e w International Economic Order ( N E I O ) and the debate by southern and northern scholars on its existence or otherwise, and the contents o f the Right to Development, See for instance, Mohammed Bedjaoui, Toward a New International Economic Order ( U N E S C O . 1979); Richard Falk, Law in an Emerging Global Village, supra note 16; The South Commission, The Challenge of the South (Oxford: Oxford University Press, 1990); R. P Anand, New States and International Law (Delhi: Vikas Ltd., 1972); R.P Anand, "Development and Environment: The Case of Developing Countries" (1980) 24 Indian J. of Int'l. Law 1; T.O Elias, Africa and the Development of International Law. 2 n d Rev. ed., (The Hague: Martinus Nijhoff, 1988). Quite recently, a formidable intellectual movement - Third World Approaches to International Law ( T W A I L ) that articulate South-North disparities from international legal perspective has emerged. See generally Makau wa Mutua, "What is T W A I L ? " , Lecture given at the 94 t h Annual Meeting of the American Society of International Law, Washington DC, Apri l 6, 2000, Proceedings of the 94 t h Annual Meeting of American Society of International Law (Washington, D C : A S I L , 2000). For an articulation of some important works of the leading scholars of South-North disparities from the developing world, see K . Mickelson, "Rhetoric or Rage: Third World Voices in International Legal Discourse (1998) 16 Wisconsin Int'l Law J. 353. 32 fall wi th in this broad construction o f South-North scholarship. O n al l o f these issues, this study can hardly ever c la im originality. Rather, this thesis complements and builds on an existing body o f South-North scholarship. It is innovative because o f the various ways in which it: (a) hypothesizes mutual vulnerability and the vulnerability o f multilateralism as inseparable concepts in contemporary multilateral public health scholarship marked by South-North disparities. (b) posits nineteenth century public health diplomacy within the colonial origins of, and post-colonial theories in international law. (c) relies on mutual vulnerability and globalisation o f diseases in an interdependent wor ld to argue for procedural fairness and distributive justice within a humane international system. (d) strives to develop cross-sectoral linkages between public health, human rights, colonial and post-colonial theories, politics, development, and international law. (e) strives to create a prominent role for international law in the complex dynamics o f the interface between humanity and diseases through the strengthening o f multilateral surveillance capacity for diseases through an international funding facility. (f) agrees with international relations scholarship that public health is a global public good and strives to find partnership and collaboration with universal international law to fulfil public goods' vis ion o f unity and harmony in the global neighbourhood. (g) coins and uses the term 'communitarian globalism' to argue for an inclusive multilateral health framework that involves al l important actors: multilateral institutions, state actors, non-state actors, and c i v i l society, and (h) explores the pros and cons o f the phenomenon o f globalisation i n multilateral health discourse, and projects globalisation as paradoxically having the capacity to 33 integrate cultures and the tendency to erode traditional medical therapies i n the developing world. A s already stated, international lawyers have explored global health challenges in segmented ways. This thesis strives to offer an interdisciplinary and holistic approach to health protection and promotion i n a divided world. In this endeavour, combining theories and perspectives from a mult ipl ici ty o f disciplines - history, international relations, international law, and development studies - w i l l be an arduous intellectual task. Because development and underdevelopment affect public health in a variety o f ways, and because global health scholarship can never be fully explored outside the context o f development, I w i l l largely heed the warning o f Head that, N o algebraic formula w i l l solve a problem i f a host o f variables is found on each side o f an equation. I f 'development' is susceptible o f a range o f definitions, as it is, and 'international l aw ' is so often found i n the eye o f the beholder - or at least the textbook author - the topic invites a display o f dipsy-doodling. . . .Development is a tough concept to discuss with intellectual rigour - not because it is any more complex or elusive o f definition than many others, but because everyone has his or her own view o f what it i s . 5 1 W i t h this i n mind, the interdisciplinary focus o f this thesis lies only with such theories and perspectives from allied disciplines that are humanist and fairness oriented. Here, I contemplate theoretical perspectives aimed not only at deconstructing the inequities o f the contemporary multilateral system, but also emerging inter-theoretical perspectives that recognise the immutable transnational bonds that tie al l o f humanity in a shared global compact. The legal, moral , and normative components o f these 5 1 Ivan L. Head, "The Contribution of International Law to Development" (1987) Canadian Yearbook of International Law V o l . X X V 29 at 31. 34 transnational humanitarian bonds come within the rubric o f what Richard Fa lk has aptly called "the law o f humanity". 5 2 I l l : CLUSTERS OF R E S E A R C H QUESTIONS This thesis raises the fol lowing clusters o f questions: (a) To what extent was the mutual vulnerability o f populations to infectious diseases a factor i n the earliest multilateral co-operation in the field o f public health? What legacy did early international law bequeath to the present, and how has this legacy affected indigenous ethno-medical therapies o f societies in the developing world? H o w ( i f at all) d id politics and strategic interests o f nation-states (vulnerability o f multilateralism) affect early multilateral health initiatives? (b) Has international law played any role in the dynamics o f the historical interaction between humanity, nation-states, and diseases? What role(s) can law and legal interventions play in contemporary public health multilateralism and scholarship? (c) What impact(s) do South-North disparities (social and economic inequalities) within and among countries have on multilateral efforts aimed at protection and promotion o f humanity's health? In what ways do poverty and underdevelopment increase or diminish the propensity o f mutual vulnerability i n the global village? (d) In v iew o f (a) (b) and (c) above, what are the best possible interventions that would lead to a humane global health order? Is there any evidence that public health policies o f multilateral institutions l ike W H O ' s R o l l - B a c k Malar ia - are guilty o f "globalism from above"? To what extent are indigenous medical practices (like traditional malaria therapies) o f most societies in developing countries part o f the core framework o f multilateral malaria policies? H o w can public health programs on the See Richard Falk, Law in an Emerging Global Village, supra note 16 at 33. 35 ground be effective, and how best can international or multilateral involvement contribute to their effectiveness? W i t h respect to transnationalisation o f diseases, does mutual vulnerability at present induce sufficient self-interest to commit scarce but moderate global resources towards the protection and promotion o f health o f populations? Is the state-centric Westphalian system stil l capable o f effectively responding to every emerging multilateral health issue o f our time and age or do we require a more inclusive multi-stakeholder participation based on animation o f transnational c i v i l society? In an attempt to answer these questions, this thesis combines a number o f approaches. For reasons that I w i l l elaborate under research methodology, it is important to note here that I have not completely followed the strict rules o f social science research methodology i n answering each o f these questions. For question (d) I w i l l rely on interviews I conducted in a Nigerian rural community in December 2000 as we l l as m y observations o f traditional malaria therapies o f populations in the same community to determine whether multilateral malaria policies l ike the W H O ' s R o l l -Back Malar ia Project is 'guil ty o f 'globalism-from-above'. For the other questions I simply adopt critical and analytical approaches in m y analyses o f literature and the work o f multilateral institutions. IV: EXPECTED RESEARCH FINDINGS The expected findings o f this inquiry are that, (a) Mutual vulnerability o f populations to diseases and pathogenic microbes -although a persuasive factor since nineteenth century public health diplomacy -nonetheless has yet to induce genuine and sufficient self-interest in an interdependent 36 wor ld o f the twenty-first century. Reasons for this phenomenon is two-fold: first, the widening development gap between the South and North as documented by multilateral institutions, 5 4 and second, the unequal distribution o f the global burdens o f disease on populations in developing and developed wor lds . 5 5 Twenty-first century infectious disease diplomacy seems not to have learnt sufficient lessons from its nineteenth century precursor when sheer protectionism and economic interests o f European nation-states hindered affective collaboration to find multilateral solutions to cross-border outbreaks o f cholera. In many ways, the industrialised world still draws an isolationist distinction between 'their ' diseases and those o f the developing world . It w i l l be a fatal mistake for nation-states to fall back on the i l lusion o f protectionism within the framework o f contemporary inter-state relations as globalisation o f diseases, global travel, trade and commerce, and migration, continue to erode national boundaries across the world . Nonetheless, the fascination which protectionism has for international scholarship is that it sounds l ike a vindication o f the theory o f realism in international relations. T o a typical apostle o f the realist school, i f since the first International Sanitary Conference in 1851 the wor ld cannot have an effective multilateral co-operation in the field o f public health, then why still bother today? The realist school uses examples o f this sort to assert that law and order is elusive i n the relations between sovereign states because no multinational police force is present to enforce such laws among sovereigns in the global arena. 5 3 Here I concur with Professor David Fidler's persuasive submission that "globalization provides diseases with opportunities to infect human populations across the planet almost as easily as infecting the family next door", see "Return of the Fourth Horseman", supra note 28. 5 4 See for instance, World Health Organisation, Bridging the Gaps: World Health Report 1995 (Geneva: W H O , 1995); World Bank, Investing in Health: World Development Report 1993 (New York: Oxford University Press, 1993). 5 5 See C.J .L Murray & A . D Lopez, Global Burden of Disease (Cambridge: Harvard University Press, 1996) (using what has emerged in public health literature as Disability Adjusted Life Years D A I L Y s to measure morbidity and mortality of selected communicable and non-communicable diseases in various regions of the world and finding the developing world, especially Africa, as lagging behind other regions). 37 Juxtaposing the realist argument with other contending schools o f thought, the public health imperatives o f our contemporary globalising and interdependent wor ld are far too complex for any one single theory or school o f thought to explain satisfactorily. 5 6 A s a way forward, only a cross-fertilisation o f perspectives from various theories and disciplines w i l l prove useful. Realism, l iberalism and critical theories o f international regimes must therefore inform one another. (b) The first finding inevitably leads to the second - reform o f public health multilateralism in an interdependent world . Here there are two identifiable interrelated issues. The first relates to the evolution o f a humane multilateral health regime. The second focuses on projects, policies and programs o f multilateral institutions that are often characterised as "globalism-from-above". 5 7 (c) International law has been at the margins i n the work o f multilateral health institutions especially the W H O . Despite the ambitious definition o f "health" i n its constitution 5 8 and the innovative legal powers 5 9 bestowed on it when it was founded in 1948, the W H O has largely treated international law as a 'no go area'. Dr . A l l y n Tay lo r , 6 0 Katarina Tomasevski 6 1 and D a v i d P . F id l e r , 6 2 a l l international legal scholars, have strongly criticised W H O ' s t imidity and the organisation's preferred use o f 3 6 I explore the pros and cons of each of the dominant theoretical schools under what I categorise as "the wealth and poverty of theory". See infra ppl87-196. 5 7 I borrowed this expression from Richard Falk whose arguments on a humane world order I completely concur with. See Falk, Law in an Emerging Global Village, supra note 16 at 29. 5 8 The Constitution of the W H O defines health as "a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity". See Constitution of the World Health Organization (Preamble), World Health Organization: Basic Documents (Geneva: W H O , 1988). 5 9 The legal powers of the World Health Organisation to adopt conventions, regulations and non-binding guidelines are contained in Articles 19-23 of its constitution. See Constitution of the World Health Organisation, ibid. 6 0 "Making the World Health Organisation Work: A Legal Framework for Universal Access to the Conditions for Health" (1992) 18 A m . J. of Law & Med. 301. 6 1 "Health" in Oscar Schachter & Christopher C. Joyner (eds.) United Nations Legal Order Vol .2 (New York: Cambridge University Press, 1995) 859. 6 2 "The Future of the World Health Organisation: What Role for International Law?" (1998) 31Vanderbilt J. of Int'l Law 1079; "Return of the Fourth Horseman", supra note 28; "International Law and Global Public Health" (1999) 48 University of Kansas Law Rev. 1. 38 narrow medical-technical standards to pursue its health mandate. A s observed by Fidler, the W H O isolated itself from general international legal developments in the post-1945 period. This isolation was not accidental but reflected a particular outlook on the formulation and implementation o f international health policies. The W H O operated as i f it were not subject to the normal dynamics o f the anarchical society; it acted as i f it were at the centre o f a transnational Hippocratic society o f physicians, medical scientists and public health experts. 6 3 Regrettably, a window o f opportunity seems to have been lost by W H O in the post-1945 years, which were marked by an exciting array o f international legal developments that could have been o f immense assistance to the organisation in pursuance o f its global health mandate. Look ing back comparatively with post-1945 global environmental multilateralism for instance, international environmental law has steadily developed into a mature area o f inquiry that is now used to forge South-North consensus and collaboration on a range o f environmental issues - ozone depletion, climate change, biodiversity, trade in endangered species, and marine pol lu t ion . 6 4 This thesis offers a brief analysis o f two multilateral environmental governance mechanisms - the Montreal Protocol to the U N Convention for the Protection o f the Ozone Layer, and the W o r l d Bank's Instrument Establishing the Global Environmental Faci l i ty - and argues for the use o f similar mechanisms in the domain o f public health. Recognizing the uneven landscape for present day multilateral co-operation, these environmental governance mechanisms, inter alia, emphasise transfer o f resources from the industrialised to the developing "International Law and Global Public Health", ibid at 15. I agree with Fidler, especially his caveat that this critique of W H O does not mean that international law has the magic bullet against public health problems in the world today but rather to encourage W H O to integrate useful legal strategies in its work and take relevant international legal development more seriously. 6 4 See generally, A . Kiss & D. Shelton, International Environmental Law (New York: Transnational Publishers, Inc., 1991); P .W Birnie & A . E Boyle, International Law and the Environment (Oxford: Clarendon Press, 1992). 39 world, equity, sharing and fairness. Whatever may be their shortcomings, these initiatives are still commendable because environmental issues, l ike public health, are global issues at the centre o f a deep-rooted South-North acrimony. (d) It follows from (c) above that i f underdevelopment is responsible for either the non-existence or collapse o f public health infrastructures in parts o f the developing world, then resources (mainly financial) that would f low from any global sharing formula would be channelled towards the re-vitalisation o f surveillance capacities in the developing wor ld based on agreed rules. But where w i l l these resources come from and which multilateral agencies w i l l develop the rules to be used in their sharing? Obviously, W H O does not have the resources to rebuild national public health infrastructures in developing countries. In recent years, the W o r l d Bank has grown as a cri t ically important player in the funding o f public health projects i n the developing w o r l d . 6 5 A partnership o f the W o r l d Bank, W H O and other relevant multilateral institutions, foundations.and leading donor countries is inevitable in this endeavour. Mutua l vulnerability and the vulnerability o f multilateralism would be significantly diminished by a humane, fair and equitable W H O - W o r l d Bank led multilateral Instrument Establishing a Global Public Health Fund. This would operate in principle as a 'disease non-proliferation treaty'. B y analogy it compares with similar funding mechanisms on international/multilateral environmental and marine pollution issues. (e) Globalisation erodes ethno-medical therapies and behavioural practices on malaria and other prevalent diseases in most o f the developing world . The conundrum o f the prohibitive cost o f western medicines and the simultaneous erosion o f traditional medicine by the phenomenon o f globalisation takes its tol l on the health o f 65 See World Bank; World Development Report 1993: Investing in Health (New York: Oxford University Press, 1993). 40 endangered populations. The complexity and dynamics o f global patent law and liberalisation o f international trade rules - in some ways - conspire to endanger public health in the developing world. B: RESEARCH METHODOLOGY This is a thesis i n international law that uses public health as its subject o f analysis. Al though it reaches out to the social sciences and other relevant disciplines especially international relations, its domain remains international law. It combines legal research methodologies with minimal social science qualitative methods in the study o f the interaction between multilateral malaria control policies and ethno-medical therapies in malaria endemic regions o f the global South. It is worthwhile to issue a caveat on the ethnographic and qualitative aspects o f m y analysis o f the W H O ' s Ro l l -Back Malar ia Project. These were based on facts and observations that emerged from interviews I conducted on rural populations and public health providers during m y visit to a Niger ian rural community. Fraught wi th the danger o f generalisation, facts and observations from the interviews should be l imited to the socio-cultural context o f the community where the interviews were conducted. However, there is a chance that since most developing countries, especially in the malaria endemic regions o f Afr ica , still share some cultural, natural, climatic and social similarities, information from the Nigerian rural community may be used to crit ically analyse malaria control strategies o f multilateral institutions l ike the W H O as they relate to most o f Afr ica . S imply put, is Ro l l -Back Malar ia guilty o f globalism-from-above? The relevance o f this question lies within Ro l l -Back Malar ia ' s tendency to either integrate or marginalise traditional medical practices and beliefs o f a sizeable number o f populations i n the developing wor ld (especially Africa) where malaria burdens (morbidity and mortality) are exceedingly high. These ethno-medical 41 practices are sti l l preferred by a sizeable percentage o f rural populations when they are infected by malaria. To the extent that this thesis never conducted any quantitative analysis, facts and observations from the Niger ian interviews w i l l only be used to study and understand the social contexts o f these populations, especially their behavioural practices with respect to malaria. A major advantage o f qualitative methodology o f this sort is that it allows the researcher to gain deeper insights into understanding, behaviour and trends o f the group studied. 6 6 Complementary to the qualitative dimension o f ethno-medical approaches to malaria are other methodological approaches - critical analysis o f literature i n search o f useful deductions and use o f secondary data from multilateral organisations to explain South-North disparities i n the field o f public health. In this endeavour this thesis is critical, analytical and interdisciplinary. The global scope o f this work makes it impossible to collect data from every country. W i t h some caveats I w i l l rely on W H O ' s Globa l Burden o f Disease, 6 7 which uses Disability Adjusted Life Years ( D A I L Y s ) to measure disease burdens i n various regions o f the wor ld based on mortality and morbidity. The major caveat on the reliability o f D A I L Y s is that many developing countries do not have official data on ailments, cl inical cases, hospital admissions and cause o f deaths. In his foreword to the Global Burden o f Disease study, W i l l i a m Foege observed that, In this sense I agree with P. Ellis that "the qualitative approach helps us to understand people as they interact in various social contexts and to define social reality from their own experience, perspective and meaning rather than from that of the researcher alone...It raises hitherto unasked questions, the answers to which afford deeper and sharper insights into how and why people participate as they do in a variety of social processes" quoted in J. Kitts & J.H Roberts, The Health Gap: Beyond Pregnancy and Reproduction (Ottawa: International Research Development Centre, 1996) 37. See also, World Health Organization, Qualitative Research for Health Programmes (Geneva: W H O , Division of Mental Health and Prevention of Substance Abuse, 1996). 67 See C J L Murray & A Lopez, supra note 48. 42 many developing countries find it difficult to acquire accurate mortality statistics, let alone morbidity and quality-of-life information. . .Many countries face difficulties i n accurately determining infant mortality rates, or even A I D S and tuberculosis incidence and prevalence rates, let alone acquiring a comprehensive understanding o f the total burden o f disease ...they face. 6 8 To this extent, data used in calculating D A I L Y s in most o f the developing wor ld are, at the very best, estimates. This thesis also draws heavily from the Pan-American Health Organisation ( P A H O ' s ) volumes on Health in the Amer i cas . 6 9 W h y P A H O ? P A H O membership presents a perfect setting for the study o f South-North disparities and unequal disease burdens between developed and developing worlds in a multilateral context. This is because P A H O membership includes Canada and the Uni ted States - two o f the most developed countries in the world - and some o f the world 's least developed countries l ike Hai t i , Honduras, Guatemala, and E l Salvador. Disparities among the countries o f the Americas continue to impact on health o f populations in the region. A s observed by the former Director o f P A H O , , an understanding o f the impact o f regulations and institutions on the health sector in the Americas must necessarily be viewed in light o f the problems the region faces - problems which differ in accordance o f each society's level o f development - and the challenge those problems pose. Because o f the many differences and for the purpose o f simplification, it is important to distinguish between the situation prevailing in the Hemisphere's two most developed countries: Canada and United States o f Amer ica , and in the developing countries o f La t in Amer ica and the Caribbean. 7 0 In sum, the strength o f this thesis lies i n its combination o f critical, analytical, descriptive, and qualitative approaches in analysing public health challenges in a sharply divided wor ld marked by the poverty and underdevelopment o f more than seventy percent o f the world 's population. It is important to note that while this thesis is critical o f contemporary multilateral initiatives under the rubric o f vulnerability o f W. Foege, "Foreword", C J L Murray & A . Lopez, Global Burden of Disease, supra note 48. 6 9 See Pan American Health Organization: Health in the Americas Vols. 1&I1 (Washington D C , P A H O , 1998). 7 0 See "Introduction", The Right to Health in the Americas: A Comparative Constitutional Study (H.L Fuenzalida & S.S Connor (eds.) (Washington D C : The Pan American Health Organization, 1989). 43 multilateralism, I do not adopt the same approach used by critical legal scholars that admirably deconstructs mainstream legal thought but shies away from reconstructing viable alternatives. 7 1 Rather, this thesis uses the vulnerability o f multilateralism to de-construct contemporary multilateral health co-operation i n a divided world , and uses the concept o f communitarian globalism to re-construct the future o f multilateral public health consensus. C: CONTRIBUTIONS OF THE STUDY AND THE THESIS This thesis, although anchored on international law, nonetheless makes overtures to the disciplines o f public health, development, international relations, and to a limited extent the social sciences. A s wel l , it explores a huge global issue - the globalization o f public health and transnational spread o f diseases i n a divided.world. Its interdisciplinary reach combines with its global scope to benefit international law, international relations, and development scholarships. For the social sciences, the analysis o f traditional medical therapies o f non-western societies vis-a-vis W H O ' s Ro l l -Back Malar ia Project raises an avalanche o f questions on the ethnographic study o f medical pluralism in divergent societies, cultures and social contexts. Fo l lowing the canons o f " law and anthropology" 7 2 as we l l as " law and development" 7 3 schools o f thought, it is pertinent to raise the fol lowing questions: how is law related to other aspects o f culture and social 7 1 For a detailed overview of critical legal scholarship, see D. Held, Introduction to Critical Theory: Horkheimer to Habermas (London: Hutchinson, 1980); D. Kairys, (ed.,), The Politics of Law: A Progressive Critique 3 r d edition (New York: Basic Books, 1998). 72 See generally, Laura Nader, "The Anthropological Study of Law", (1965) 67 American Anthropologist Pt.2 (Special Edition) p3; Clifford Geertz, "Local Knowledge: Fact and Law in Comparative Perspective" in Further Essays in Interpretive Anthropology (New York: Basic Books, 1989). 7 3 F .G Snyder, "Law and Development in the Light of Dependency Theory" (1980) 14 Law & Society Rev. 723; David M . Trubek, "Towards a Social Theory of Law: A n Essay on the Study of Law and Development" (1972) 82 Yale L.J 1. 44 organization, especially socio-cultural attitudes to disease and illness? Is it possible to synthesise behavioural and ethno-medical practices in radically different cultures? A p p l y i n g al l o f these questions by analogy to the Ro l l -Back Malar ia Project as wel l as its perceived integration or exclusion o f traditional medicine in Af r i ca , this thesis gives the social scientist useful tools for hypothesis generation and study o f health practices in non-Western societies. Thus lies the contribution o f this inquiry to the social sciences. A n exploration o f the vulnerability o f multilateralism underscores the gaps and shortcomings o f multilateral initiatives on global public health. F r o m this perspective, this thesis stands to benefit po l icy makers in the global multilateral institutions that serve as incubators o f global public health policies - the W H O , the F A O , the U N I C E F , the W o r l d Bank, the U N D P . Related to this is pol icy-making at the regional and national levels. Al though the thesis explores public health from a predominantly global perspective, global surveillance for diseases and other urgent international health events would be futile without core capacity and support at national levels. It is only when humanist-oriented pol icy initiatives at national levels merge wi th global humanist-oriented initiatives that South-North health disparities and unequal distribution o f disease burdens, and the global health divide w i l l be narrowed. Taken together, the potential contributions to be made by this thesis - to the academic disciplines, to social science ethnographic study o f medical therapies in Afr ica where malaria is endemic, and to pol icy making in multilateral institutions -combine to diminish the unfair distribution o f the global burden o f diseases across the world. In very modest ways, this thesis uses mutual vulnerability o f populations to the threats o f disease pathogens i n an interdependent and globalizing wor ld as the sine qua non for the evolution o f a humane multilateral health order. 45 CHAPTER TWO THE PARADOX OF A GLOBAL VILLAGE IN A DIVIDED WORLD A: OVERVIEW OF THE ARGUMENT I f health, as the Constitution o f the W o r l d Health Organisation provides, is "a state o f complete physical , mental and social well-being and not merely the absence of disease or inf i rmity" 1 , then the age-long health divide between the developed and developing worlds deserves pre-eminent attention from scholars and multilateral institutions. Quite paradoxically, global health challenges i n the past decades have focused not only on the global health divide, but also simultaneously on the phenomenon o f globalisation as a process that integrates nation-states, markets, cultures, and peoples across the world. Never before in history has humanity been so bonded together, and at the same time so sharply divided by underdevelopment, poverty, and an unequal distribution o f disease burdens. This paradoxical matrix elicits variegated responses in the scholarship o f public health. Whi l e there is unanimity o f opinion that poverty and underdevelopment breed disease, the impact o f globalisation on public health remains controversial and hotly contested. V i e w e d from one o f its simplest positive connotations as a process towards the emergence o f a borderless wor ld , globalisation arguably reinforces the global neighbourhood metaphor. In this sense, the complex interaction o f globalisation (in some ways the precursor o f the emergent global neighbourhood) and development disparities (the precursor o f a divided world) provides a good setting for the study o f mutual vulnerability - the transnational threats o f diseases in an interdependent world. This thesis argues that either end o f the paradoxical matrix spells doom for the health o f humankind. Underdevelopment - the end product o f poverty and disparities ' The Constitution of the World Health Organisation 1946 (Preamble) (Geneva: World Health Organisation: Basic Documents, 1999) 1. 46 between countries, breeds diseases and microbial pathogens; and globalisation on the other hand - the product o f global commerce, travel and tourism, trade liberalisation, forced and unforced migration - enables disease pathogens to transcend national boundaries with ease. This crisis is not l imited to infectious/communicable diseases. The burden o f non-communicable diseases on populations as we l l points to poverty and underdevelopment as leading causes especially i n the developing world. The paradox o f a global vil lage in a divided world is therefore inseparable from the challenges o f public health. Both ends o f the paradox affect public health in various ways and have therefore generated certain visible synergistic manifestations. Even within the related concepts o f mutual vulnerability and vulnerability o f multilateralism, the centrality o f this paradoxical underpinning in the relations between nation-states and populations raises issues that are hardly recondite for public health. If, due to underdevelopment, surveillance capacity i n a country either does not exist at al l or breaks down, any subsequent disease event that emanates as a result o f such ineffective national surveillance capacity could easily transcend national boundaries to render populations in distant places vulnerable. W i t h i n vulnerability o f multilateralism, it is the disparity between the developed and developing worlds that has led to intractable South-North acrimony in most multilateral institutions including the W o r l d Health Organisation. The developing wor ld has come to characterise the international system as unfair, inequitable and non-responsive to its developmental and public health needs. I f health, as has been persuasively argued, is a public good 2 then global health policies must necessarily deal with the paradoxical variables o f a global 2 See L .C . Chen et al, "Health as a Global Public Good" in Inge Kaul , et al, (eds.), Global Public Goods: International Co-operation in the 21s' Century (New York: UNDP/Oxford University Press, 1999)384. 47 neighbourhood and those o f a divided world, especially the various ways each o f them impacts on health o f populations. Health, l ike other global public goods, must meet two conditions. First, its benefits must have strong qualities o f 'publicness' as marked by non-rivalry in consumption and non-excludability. Second, its benefits must be quasi universal i n terms o f countries (covering more than one group o f countries), people (accruing to several, preferably a l l , population groups), and generations (extending to both present and future generations, or at least meeting the needs o f current generations without foreclosing development options for future generations). 3 Fol lowing these criteria, it is important to explore the extent to which socio-economic disparity between countries in a divided wor ld excludes the 'underdeveloped', 'developing' , 'poor ' and ' third wor ld ' countries from sharing i n the beneficial dividends o f health as a public good i n the global arena. This chapter explores this exclusion from the paradoxical matrix o f ' a global neighbourhood and a divided wor ld ' , and argues that both have contributed in various ways to mutual vulnerability and the vulnerability o f multilateralism. B: A G L O B A L N E I G H B O U R H O O D ? The global neighbourhood metaphor describes the increasing and inevitable interdependence o f nation-states and populations. Historically, l inks and contacts between populations for various purposes are as o ld as humanity itself. But the Peace o f Westphalia 1648 - although Euro-centric - marked the evolution o f the contemporary multilateral state system. The past fifty years have witnessed a phenomenal emergence o f the reinforcing vicissitudes o f a global neighbourhood: international airline networks, flows o f foreign direct investment, ingenious discoveries i n communication technology, ecological tourism, religious pilgrimages, 3 Inge Kaul, et al, "Defining Global Public Goods", in I. Kaul , et al, (eds.), Global Public Goods, id. 2. 48 international sports festivals, regionalism and free trading blocks, increased migrations, and global trade liberalisation. Each o f these events erodes national boundaries and precipitates mutual spread o f disease and pathogens. Scholars, multilateral organisations and policy-makers explore the health implications o f these reinforcing phenomena o f global interdependence under the rubric o f globalisation. Globalisation is variegated and multidimensional. 4 Its multiple dimensions conspire with the uneven multilateral landscape i n which it is practised to affect public health in many negative ways. For the majority o f humanity to reap the fruits o f health as a public good i n the global village, there must be utmost respect for neighbourhood values - peace, respect for life and other human rights, lack o f institutional and structural violence i n the international system, justice and equity, mutual respect and caring, economic security, sustainable development, and access to basic necessities o f life by the poor. 5 These values are inexorably l inked and inter-connected. These linkages compel a further inquiry to see how globalisation has either respected or disrespected neighbourhood values, and how it has consequently impacted on public health. This thesis conducts this inquiry particularly on the human right to health and the health implications o f prescriptions given to the developing wor ld by international financial institutions such as the W o r l d Bank ' s structural adjustment programs. 6 4 Because of the divergent complexities of globalisation, I wi l l only focus on its health implications within the rubric of what I explore as 'globalisation of poverty' including two levels of inquiry that I conduct under that rubric. See infra pp54-71. 5 For a discussion of 'neighbourhood values' from a global perspective, see Our Global Neighbourhood: The Report of the Commission on Global Governance. Co-Chaired by I. Carlsson & S. Ramphal, (New York: Oxford University Press, 1995) 48. 6 See Infra pp68-71. 49 C: A DIVIDED WORLD? The dawn o f the twenty-first century is witnessing a polarisation o f the wor ld less by geo-political boundaries and ethno-cultural affinities, than by poverty and underdevelopment. Since the 1970s heralded economic disarray i n most o f the developing world , the gap between developed and developing worlds has widened at an alarming speed. In 1997 the Uni ted Nations Development Program ( U N D P ) reported that "the share o f the poorest 20% o f the world 's people i n global income now stands at a miserable 1.1%, down from 1.4% i n 1991 and 2.3% in 1960. It continues to shrink. The ratio o f the income o f the top 20% to that o f the poorest 20% rose from 30 to 1 in 1960, to 61 to 1 in 1991 - and to a startling new high o f 78 to 1 i n 1994". 7 In 1998 the U N D P reported the widening gap and disparities not only among countries but also wi th in countries. In 1960, the 20% o f the world 's people who l ive in the richest countries had 30 times the income o f the poorest 20%; by 1995 that figure had reached 82 times as much income. Income distribution even wi thin industrialised countries shows disparities between r ich and poor. In the worst case, Russia, the income share o f the richest 20% is 11 times that o f the poorest 20%. In Australia and the Uni ted K i n g d o m it is nearly 10 times as much. 8 In its W o r l d Development Report 1993, which focused on health, the W o r l d Bank classified countries into four major categories: (i) L o w Income Economies (including the two most populous countries on earth -India and China as we l l as most o f Africa) wi th per capita G N P s o f about $350 U S i n 1991; (ii) Lower M i d d l e Income Economies with per capita G N P s up to $2500 U S ; 7 United Nations Development Program. Human Development Report 1997 (New York/Oxford: Oxford University Press, 1997) 7. 8 United Nations Development Program, Human Development Report 1998 (New York/Oxford: Oxford University Press, 1998) 29-30. 50 (iii) Upper Midd l e Income Nations with per capita G N P s up to $3500 U S ; and (iv) H i g h Income Nations (mostly O E C D countries) wi th per capita G N P s on average o f $21,500. 9 F rom this projection, it has been argued that about 3.1 b i l l ion , we l l over hal f o f the world 's population live in countries in the poorest group. A further 1.4 b i l l ion live in the lower-middle- income nations and 630 m i l l i o n in the upper-middle-income nations. About 820 mi l l i on l ive i n the high-income nations, which are r ich in part because o f their ability to exploit the resources, such as o i l , minerals, and food, o f poorer nations. Over eighty percent o f the world 's people l ive i n nations that collectively have less than twenty percent o f the wor ld ' s wealth and productive capacity. 1 0 It is obvious that whatever criteria are used to classify countries, 1 1 poverty and underdevelopment remain the two most important factors that divide countries and i j populations. A s observed by G u y Arno ld , "poverty is the single most important1 factor dividing the Nor th and South" . 1 3 The term South-North and the dividing line between them has its own difficulties. The South is not socially, culturally and poli t ically homogeneous, neither is the dividing line between the South and North an accurate geographical demarcation between the developing and the industrialised worlds. These differences notwithstanding, South-North has emerged as a popular 9 World Bank. World Development Report 1993: Investing in Health (New York: Oxford University Press, 1993). 1 0 John M . Last, Public Health and Human Ecology (Stamford: Appleton & Land, 1998) 338. " Apart from income disparities, multilateral institutions use other criteria to classify countries: Gross National Product (GNP), infant mortality, life expectancy at birth, and Disability Adjusted Life Years (DAILYs) . 12 To avoid the controversy that surrounds the use of the terms, 'first world' and 'third world' , this thesis prefers the use of the term 'South-North' as a more convenient expression to explore contemporary global disparities. See generally Ivan L Head, On a Hinge of History: The Mutual Vulnerability of South and North (Toronto: The University of Toronto Press, in association with International Development Research Centre, 1991). 1 3 The End of the Third World (New York: St. Martins Press, 1993) 45. 51 expression used i n exploring a divided world. In 1990, the South Commiss ion observed, Three and ha l f b i l l i on people, three quarters o f a l l humanity, l ive in the developing countries....Together the developing countries - accounting for more than two thirds o f the earth's land surface area - are often called the Third W o r l d . W e refer to them as the South. Largely bypassed by the benefits o f prosperity and progress, they exist on the periphery o f the developed countries o f the North. Whi l e most o f the people o f the North are affluent, most o f the people o f the South are poor; while the economies o f the North are generally strong and resilient, those o f the South are mostly weak and defenceless; while the countries in the North are, by and large, i n control o f their destinies, those o f the South are very vulnerable to external factors and lacking in functional sovereignty. 1 4 I f al l o f humanity were to be a single nation-state, the present South-North divide would have made it an ungovernable, semi-feudal entity, split by internal conflicts. A small portion would be prosperous and industrialised while most o f it would be poor and under-developed. 1 5 What then are the implications o f a wor ld divided by poverty and underdevelopment for global health challenges? H o w does poverty and underdevelopment impact on the health conditions o f the three-quarters o f a l l humanity who live in the South? The W H O Director-General put it succinctly thus, "poverty breeds infections; and infections breed poverty" . 1 6 Poverty, according to the W H O , is the world 's most ruthless ki l ler and the greatest cause o f i l l health and suffering. It is the main reason why babies are not vaccinated, clean water and sanitation are not provided, curative drugs and other treatments are unavailable, and mothers die i n childbirth. Poverty is the cause o f reduced life expectancy, handicap, disability and starvation. Poverty is a major contributor to mental illness, stress, 1 4 The Challenge of the South: The Report of the South Commission. Chaired by Julius Nyerere (New York: Oxford University Press, 1990) 1. "Ibid. 1 6 Gro Harlem Brundtland, " A Call for Healthy Development", in World Health Organization Report on Infectious Diseases: Removing Obstacles to Healthy Development (Geneva: W H O , 1999) 66. 52 suicide, family disintegration, and substance abuse. 1 7 The W H O argues further that "poverty wields its destructive influence at every stage o f human life from the moment o f conception to the grave. It conspires with the most deadly and painful diseases to bring a wretched existence to a l l who suffer from i t " . 1 8 Another consequence o f a divided wor ld - global development apartheid - is the unequal distribution o f the global burdens o f disease on populations within the South and N o r t h . 1 9 The current approach o f Disabili ty-Adjusted Li fe Years ( D A I L Y s ) quantifies burdens o f illness and health risks globally, focusing on health discrepancies in various regions o f the world . What emerges from this quantification o f diseases and risks is that cumulatively the countries o f the South lag behind those o f the North. Risks harmful to health and the endemic nature o f certain diseases that confront populations in the South abridge their life expectancy, increase the burdens o f disease on them, and significantly impact on the quality o f life they l i v e . 2 0 T o give one basic example, a person who is born in Uganda, lives and dies there at 50 and was struck by malaria and other tropical diseases many times before h i s 2 1 death, cannot ibe said to have l ived 50 healthy years. Comparing the life o f this Ugandan wi th a Canadian who l ived for the same 50 years in Canada without the burdens o f malaria and other tropical diseases, the quality o f lives l ived by both o f them is not l ike ly to be the same. A heavier disease burden may have impacted negatively on the quality o f 1 7 World Health Organisation, The World Health Report 1995: Bridging the Gaps (Geneva: W H O 1995) 1. 18 Ibid. 1 9 The World Health Organisation, World Bank and the Harvard School of Public Health have jointly commissioned the global burden of disease study: a comprehensive assessment of mortality and disability from diseases, injuries, and risk factors in 1990 and projected to 2020. Measuring the disease burden by mortality and morbidity using Disability Adjusted Life Years D A I L Y s , the study divided the world into eight regions: established market economies (EME) , formerly socialist economies of Europe (FSE), India, China, Other Asia and Islands, Sub-Saharan Africa, Latin America and the Caribbean, and Middle Eastern Crescent. See generally, The Global Burden of Disease and Injury Series. C J L Murray & A . Lopez (eds.), (Geneva: W H O , 1996). 2°Ibid. I use "his", "her", "she" and "he" all through this thesis not in a gendered sense but generically. 53 life o f the Ugandan, so much that it would be epidemiologically fallacious to say that he l ived 50 healthy years. Whi l e the Canadian may have l ived 50 healthy years or close to that, a heavier disease burden i n Af r i ca may have abridged the Ugandan's healthy life-years from 50 to 35. This is not to suggest that the burden o f such diseases l ike cancer, Alzheimer ' s , f lu, diabetes, sexually transmitted diseases, respiratory infections, cerebro-vascular and cardiovascular diseases, and the risk o f such habits and injuries as tobacco use and road accidents do not impose heavy disease burdens on populations in the North. Rather this thesis argues that, comparatively, diseases that are endemic in most o f the global South - malaria, American trypanosomiasis (chagas disease), Afr ican trypanosomiasis (sleeping sickness), dengue, onchocerciasis (river blindness), lymphatic fdariasis, guinea worm, to name just a few - impose far heavier burdens on populations in the global South. The W H O has identified the health implications o f l iv ing in a divided wor ld as an inequity that should stir the conscience o f the world. Accord ing to 1993 calculations, a person in one o f the least developed countries has a life expectancy o f 43 years. In one o f the most developed countries, it is 78 years. That is a difference o f more than a third o f a century. A s o f 1995, in a space o f a day, passengers f lying from Japan to Uganda leave the country with the world 's highest life expectancy - almost 79 years - and land i n the one with the world 's lowest - barely 42 years. A flight from France to Cote d ' lvoire takes only a few hours, but in terms o f life expectancy, it spans almost 29 years. A short air trip between Flor ida i n the U S A and Hai t i represents a life expectancy gap o f over 19 years. It is in the context o f this South-North disparity that the health implications o f globalisation and efforts to close the See World Health Report 1995: Bridging the Gaps, supra note 9 at 2. 54 widening South-North gap w i l l be discussed. U s i n g this inquiry 's paradoxical matrix o f global neighbourhood in a divided world , the meaning, historical evolution and role o f globalisation in the development o f the South w i l l be questioned in what I explore as globalisation o f poverty, and two subsequent levels o f inquiry made under it. D: GLOBALISATION OF POVERTY: TWO LEVELS OF INQUIRY ON PUBLIC HEALTH AND SOUTH-NORTH DISPARITIES23 A s already stated, globalisation is complex and multi-dimensional. It means different things to different people in different places, and its scope and historical antecedents lie in the particular eyes o f the beholder. The l ink between globalisation and health is even more complex. Accord ing to 'Yach & Bettcher, the l ink between the lives o f individuals and the global context o f development is evident i n another face o f globalization, an often forgotten one: global health futures are directly or indirectly associated with the transnational economic, social, and technological changes taking place in the world. A s a result, the domestic and international spheres o f public health pol icy are becoming more intertwined and inseparable. 2 4 Similarly, Lee & Dodgeson observed that "an understanding o f the linkages between globalization and health depends foremost on one's definition o f globalization and precise dating o f the process". 2 5 There is an overwhelming literature indicating that the emergence o f certain processes significantly erodes national boundaries, and as a result the sovereign state is incapable o f controll ing what occurs wi th in its geo-This part draws heavily from a paper I published in the Spring 2000 Vol.7 Issue 2 Indiana Journal of Global Legal Studies 603 entitled "Global Village, Divided World: South-North Gap and Global Health Challenges at Century's Dawn". The article was in response to Professor David P. Fidler's "Neither Science Nor Shamans: Globalization of Markets and Health in the Developing World" (1999) 7 Indiana Journal o f Global Legal Studies 191. 2 4 Derek Yach & Douglas Bettcher, "The Globalization of Public Health, I: Threats and Opportunities" (1998) 88 American J. of Public Health 735. 2 5 K . Lee & R. Dodgeson, "Globalization and Cholera: Implications for Global Governance" Apr.-June 2000 Vol.6 No.2 Global Governance 214. 55 poli t ical boundaries. These processes, which scholars explore as globalisation, encompass a breadth o f issues: markets and trade liberalization, environment, culture, travel and tourism, information, computers, and telecommunications. 2 7 The controversies o f the meaning and definitional scope o f globalisation are as formidable as the controversies o f its precise dating. Here there are two competing schools - the 'recent', and the 'ancient'. Accord ing to the recent school, globalisation is a concept o f the 1990s propelled by the global nature o f the activities o f multinational corporations. In an introduction to a book, Ray K e i l y observed that, The 1990s have seen a boom in writ ing about globalisation. Accord ing to one sociologist, . . .it is the concept o f the 1990s, a key idea by which we understand the transition o f human society into the third mi l lenn ium. . . . M u c h o f the debate surrounding globalisation has been extremely abstract. There is often a lack o f clarity i n definitions o f the term, its novelty and how it is experienced by people throughout the world . The ancient school argues that notwithstanding the emergence o f new globalising forces i n the global scene in the last one or two decades, globalisation has historical roots from the fifteenth century. 2 9 I f globalisation - as this thesis argues - connotes vulnerability o f national boundaries, then the historical antecedents o f trans-boundary impact o f diseases makes the contention that globalisation ' is the concept o f the Lee & Dodgeson, define globalization as "a process that is changing the nature of human interaction across a range of social spheres, including the economic, political, social, technological, and environmental. This process is globalizing in the sense that many boundaries hitherto separating human interaction are being increasingly eroded. These boundaries - spatial, temporal, and cognitive — can be described as the dimensions of globalization" Id. at 215. According to David P. Fidler, "globalization refers to processes or phenomena that undermine the ability o f the sovereign state to control what occurs in its territory". See "The Globalization of Public Health: Emerging Infectious Diseases and International Relations" 1997 Vol.7 Ind. J. of Global Leg. Stud. 11. Gordon R. Walker & Mark A . Fox argued that "the key feature which underlies the concept of globalization ... is the erosion or irrelevance of national boundaries in markets which can truly be described as global", G.R Walker & M . A Fox, "Globalization: A n Analytical Framework" (1996) 3 Indiana Journal of Global Legal Studies 375. 2 7 See Fidler ibid; G . Walker & M . A Fox ibid. 2 8 R. Kei ly , "Globalisation, (Post-)Modernity and the Third World" in Globalisation and the Third World. R. Kei ly & P. Marfleet (eds.) (London/New York: Routledge, 1998) 2 citing M . Waters, Globalization (London: Routledge, 1995). 29 See A . Giddens, The Consequences of Modernity (London: Polity Press, 1990), R. Robertson, Globalization: Social Theory and Global Culture (London: Sage, 1992). Both scholars differ on the scope of the progression of globalisation from the fifteenth century. Giddens posits globalization 56 1990s' less persuasive. In his account o f the plague that ravaged Athens during the Peloponnesian War in 430 B C , Thucydides wrote that; the plague first originated, so it is said, in Ethiopia above Egypt and then descended into Egypt and L i b y a and much o f the Persian Empire. It fell suddenly upon Athens and attacked in the first instance the population o f the Piraeus... . Later it also arrived in the upper city and by this time the number o f deaths was greatly increasing. The question o f the probable origin o f the plague and the nature o f the causes capable o f creating so great an upheaval, I leave to other writers, with or without medical experience....I caught the disease mysel f and observed others suffering from i t . 3 0 The place o f globalisation in South-North disparities and socio-economic inequalities among countries are hardly supportive o f the argument that it is the concept o f the 1990s. To come to terms with the root causes o f contemporary global inequalities, questions must be asked about how globalisation - the erosion or vulnerability o f national boundaries - affects the process o f development, and consequently impacts on human health. F rom its simpler meaning to its diverse theoretical and practical complexities in the 1990s, globalisation is implicated in the hegemonic foundation o f international law and relations among nation-states (civil ised world) and the so-called primitive or uncivil ised societies. 3 1 It is an age-old systematic institutionalisation o f polarisations, which came to cl imax i n the 1990s through ingenious discoveries in communications and computer technology, massive flow o f capital across national boundaries, and the colossal influence o f multinational corporations wi th complicated global networks; global networks that have continued to globalize poverty. Because squarely within modernity and Robertson identifies other variables that are global in nature outside modernity. 3 0 Thucydides, History of the Peloponnesian War Chapter 48 discussed in detail by James Longrigg, "Epidemic, Ideas and Classical Athenian Society", in Terence Ranger & Paul Slack (eds.,) Epidemics & Ideas (Cambridge: Cambridge University Press, 1992) 21. 3 1 I explore this argument in detail in subsequent chapters where I discuss the origin of multilateral co-operation in the field of public health. See infra Chapters Three and Four. 57 respect for human rights and dignity, especially the right to health, is one of the global neighbourhood values, and because underdevelopment and poverty impact on human health in a variety of ways, it is pertinent to understand how these emergent global forces have continued to globalize poverty. The double-edged inquiry that follows focuses on human right to health and development prescriptions by international financial institutions, and the various ways they affect human health in a divided world. D(I): GLOBALISATION OF POVERTY AND THE HUMAN RIGHT TO HEALTH 3 2 There are two main reasons why the right to health deserves scholarly attention in connection with globalization of public health. The first relates to the obligation undertaken by State Parties to the International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966 to "take steps individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources", to realise the rights enumerated in ICESCR. 3 3 The second reason - which is related to the first - involves the express provisions of international conventions on the right to health that recognise the financial and economic needs of developing countries. One example is the United Nations Convention on the Rights of the Child, which provides in Article 24(4) that in striving to realise the rights of children, states shall take "particular account...of the needs of developing countries".34 I am interested in the human right to health less from the intense debate by the schools of universalism and cultural relativism, but more from the impact of poverty and underdevelopment on an effective articulation of a viable right to health in international law. 33 International Covenant on Economic, Social and Cultural Rights, G . A Res. 2200, U . N . G A O R , 21 s t Sess., Supp.No.16, Art .2(l) , at 49, U.N.Doc. A/6316 (1966). 34 U.N. Convention on the Rights of the Child, G . A . Res.44/25, U . N . G A O R , Supp. No.49, at 167, U . N . Doc. A/44/49 (1989). 58 The relevance o f these approaches lies i n the socially and economically holistic definition o f health offered by the constitution o f the W o r l d Health * • 35 Organisation as we l l as in the impact o f underdevelopment on human health. Taken together, these two factors point to the importance o f economic development and financial resources to the realisation o f right to health. Unfortunately, the right to health -and by extension all economic, social, and cultural rights - have been treated peripherally by policy-makers and multilateral institutions 3 6 . T o many, they are not rights but lofty wishes and mere statements o f idealistic social desires. To others, they exist textually as 'soft l aw ' but are so all-encompassing, indeterminate and vague that their actual meaning and contents are difficult to articulate. Tomaseveski argues that Art ic le 12 o f the I C E S C R , which provides for the right to health, is imprecise and vague because "guaranteed access to health care services for al l people remains an issue o f disagreement. There is no agreement on the specific obligations o f States in providing access to health care to al l o f its population, let alone whether it is obliged to undertake the provision o f health care services at a l l " . 3 7 It is difficult to overlook the imprecision that has characterised international normative provisions on health as a human right. A number o f reasons can be advanced to explain why the human right to health (and most other economic, social and cultural rights) has been relegated to irrelevance and impotency. The first is the subordination o f economic, social, and cultural rights to c i v i l and poli t ical rights. C i v i l and poli t ical rights are frequently referred to as 'first generation' human rights, while economic, social and cultural 3 5 The Constitution of World Health Organisation 1946 (Preamble) (Geneva: W H O : Basic Documents, 1999) 1. 3 6 B. Toebes, "Towards an Improved Understanding of the International Human Right to Health" (1999) 21 Human Rights Quarterly 661(arguing that although it is often asserted that all human rights are interdependent, interrelated, and are of equal importance, in practice, Western states and N G O s have tended to treat economic, social, and cultural rights as i f they were less important than civil and political rights). 3 7 K . Tomaseveski, "Health", in United Nations Legal Order Vol .2 O. Schachter & C .C Joyner (eds.) (Cambridge: Cambridge University Press, 1995) 859. 59 rights - including the right to health - are 'second generation' rights. Al though the fist/second generation distinction does not reflect a hierarchy o f importance, it means that c i v i l and poli t ical rights are 'first in t ime' . The second reason relates to the way human rights have been construed i n Western liberal democracies, which unduly emphasise justiciabil i ty predicated on an individual making a c la im against the state, before a court or tribunal, seeking redress for the violation o f her rights. This construction raises the question whether a person can prosecute a c la im i n a court or tribunal against the state based on the state's failure to guarantee h i m access to conditions necessary for health protection and promotion. Put another way, the state is incapable o f guaranteeing access to good health to al l o f its citizens. Thus, the litmus test for any c la im to qualify as a human right is ' justiciabili ty ' . A further reason relates to a glaring misunderstanding and confusion among scholars on the meaning o f such concepts as health, health care, health services and medical services. 3 9 In response to most o f these contentions; a persuasive literature has emerged from a formidable league o f scholars aimed at giving the right to health a concrete meaning in the international legal order. 4 0 One For a critique of justiciability as the dominant criterion to determine the viability of right to health, see Virginia Leary, "Justiciability and Beyond: Complaint Procedures and the Right to Health" (1995) 55 The Review of the International Commission of Jurists (Special Issue on Economic, Social and Cultural Rights and the Role o f Lawyers) 1. For a critique of the Western liberal approach to human rights based on John Locke's social contract philosophy, see Makau wa Mutua, "The Banjul Charter and the African Cultural Fingerprint: An Evaluation of the Language of Duties" (1995) 35 Virginia Journal of International Law 340; Makau wa Mutua, "The Ideology of Human Rights" (1996) 36 Virginia Journal of International Law 589. 3 9 See for instance Professor Ruth Roemer's contribution "The Right to Health Care" in H . L Fuenzalida-Puelma & S.S Connor, eds., The Right to Health in the Americas. (Washington D C : Pan-American Health Organisation, 1989) 17 arguing that the phrase 'right to health' is absurd because it connotes the guarantee of perfect health. For a good summary of the confusion in literature on the right to health, health care, health status, medicare, and healthy conditions, see Virginia Leary, "The Right to Health in International Human Rights Law" (1994) Vol.1 N o . l Health & Human Rights 24. 4 0 See generally, B . Toebes, supra note 36; V . Leary, ibid; David P. Fidler, International Law and Infectious Diseases (Clarendon Press, 1999) 169; David P. Fidler, "International Law and Global Public Health" (1999) 48 Univ. of Kansas Law Rev. 40; L . Gostin & J. Mann, "Towards a Human Rights Impact Assessment for the Formulation and Evaluation of Public Health Policies" (1994) 1 Health & Human Rights 59, L. Gostin & Z. Lazzarini, Human Rights and Public Health in the Aids Pandemic (Oxford/New York: Oxford University Press, 1997); S.D Jamar, "The International Human Right to Health" (1994) 22 Southern Univ. Law Rev. 1. 60 way to think about human rights should de-emphasise justiciabil i ty and stress human dignity, indivis ibi l i ty and interdependence o f a l l human rights - c i v i l , poli t ical , economic, social, and cultural . 4 1 O f what relevance is voting in an election or enjoying freedom o f expression (c iv i l and polit ical rights) to a woman in a rural village i n Mozambique, Guatemala, or Burundi who is sick but cannot afford to buy aspirin? Does freedom o f association mean anything to a man who, together with his family, is malnourished and cannot afford basic food, housing and health care? Indivisibi l i ty and interdependence o f a l l human rights and a strong emphasis on human dignity, are the starting points for a re-conceptualisation o f the right to health. Leary has developed seven key elements for a rights-based perspective on health. These include assertions that: (i) conceptualising something as a right emphasises its exceptional importance as a social or public goal (rights as "trumps"); 4 2 (ii) rights concepts focus on the dignity o f persons; (iii) equality or non-discrimination is a fundamental principle o f human rights; (iv) participation o f individuals or groups in issues affecting them is an essential aspect o f human rights; (v) the concept o f rights implies entitlement; (vi) rights are interdependent; 4 1 For a recent intellectual account of these linkages and connectedness from development perspective, see Amartya Sen, Development as Freedom (New York: Anchor Books, 1999) stating, inter alia, that the constitutive role of freedom relates to the importance of substantive freedom in enriching human life. The substantive freedoms include elementary capabilities like being able to avoid such deprivations as starvation, under-nourishment, escapable morbidity, and premature mortality, as well as the freedoms that are associated with being literate and numerate, enjoying political participation and uncensored speech. 4 2 Here she follows Ronald Dworkin's theory of rights as expounded in Taking Rights Seriously (Cambridge: Harvard University Press, 1978). Dworkin argued that when something is categorized as a right, it trumps up other claims or goods). Leary argues that the use of rights language in relation to health emphasizes the importance of health and health status. It does emphasize that health issues are of special importance given the impact of health on the life and survival of individuals. Leary, "The Right to Health in International Human Rights Law" (1994) 1 Health & Human Rights at 36. 61 (vii)rights are almost never absolute and may be limited, but such limitations should be subject to strict scrutiny. 4 3 In the same vein, Lawrence Gost in and Jonathan M a n n proposed a human rights impact assessment for the formulation and evaluation o f public health p o l i c i e s 4 4 This proposal would enable public health practitioners, human rights advocates, and community workers to explore the human rights dimensions o f public health policies, practices, resource allocation decisions, and programs. The process includes a clarification o f the public health purpose, an evaluation o f the l ikel ihood o f the effectiveness o f the policy, the target o f the particular public health pol icy (including the risks o f either over-inclusion or under-inclusion), and an examination o f the proposed public health pol icy for possible human rights burdens. 4 5 H o w then would the human rights burdens o f public health policies be measured? Three important factors to be considered include the invasiveness o f the intervention, the frequency and scope o f the infringement, and the duration o f the public health p o l i c y . 4 6 Beyond indivis ibi l i ty and interdependence o f al l human rights, wh ich represent the min imum core content o f the right to health, governmental regulatory failures either to adequately address health hazards or provide access to basic health V . Leary, ibid. The work of the United States based Physicians for Human Rights underscores the interdependence of all human rights. For instance, detention under inhuman conditions or torture inevitably affects the health of the person(s) detained or tortured. For a documentation of these linkages by the Physicians for Human Rights, see The Taliban's War on Women: Health and Human Rights Crisis in Afghanistan (Boston/Washington D C : Physicians for Human Rights, 1998); Human Rights and Health: The Legacy of Apartheid. A.Chapman & L . Rubenstein (eds.), (New York: American Association for the Advancement of Science & Physicians for Human Rights, 1998) (discussing deaths in detention, racial discrimination in the health sector, and segregation in medical education under the apartheid system in South Africa). 4 4 See L . Gostin & J. Mann, "Towards the Development of a Human Rights Impact Assessment for the Formulation and Evaluation of Public Health Policies" (1994) 1 Health & Hum. Rts. 59. 4 5 Ibid. 62 services and information, have been identified as "a pattern o f concentric circles" o f the scope o f the right to health. 4 7 These concentric circles encompass governmental failures to regulate adequately public and private activities that pose threats to human health, 4 8 failure to provide access to basic health services and information, 4 9 and governmental responsibility to provide access to basic factors that affect health. 5 0 A s these emerging perspectives show, enormous efforts have been made to concretise the contents o f the right to health in international law. A n y inquiry aimed at unmasking the reason(s) why these efforts are sti l l largely marginalized and peripheral in international pol icy-making would inevitably indict the current international system that has failed to adequately empower the Uni ted Nations Committee on Economic , Social and Cultural Rights to do its job effectively. Phi l ip Als ton , former Chair o f the Committee summarised his frustrations in a detailed commentary: The U N Commiss ion on Human Rights devotes about five percent o f its time to economic and social rights issues: other human rights bodies usually ignore them. The only body mandated to do work in this area, the U N Committee on Economic, Social and Cultural Rights, was established in 1987 on the implicit condition that it be ineffectual and inactive...As the Committee's Special Rapporteur, I am keenly aware o f its problems. . . .We receive little institutional support from anyone. The U N secretariat provides only rudimentary clerical help; I mysel f typed about hal f o f our report for lack o f a secretary wi th word processing experience. 4 7 See David P. Fidler, "International Law and Global Public Health", supra note 40 at 40. 48 See the decision of the Inter-American Human Rights Commission in the case of the Yanomami Indians Case 7615, Inter-American Commission on Human Rights 24 OEA/Ser.L/v/11.66, doc.10 rev.l (1985). The Commission ruled that the Brazilian government's road construction project in the Amazon violated the right of the Yanomami Indians to preservation of their health as enshrined in Article X I of the American Declaration of Human Rights. In permitting the massive penetration into the Indians' territory of outsiders carrying contagious diseases that have infected the Indians and its failure to provide essential medical care to the affected Indians, the government of Brazil violated the right to health of the Yanomami Indians. 4 9 The World Health Organisation's primary health care and its 1977 Alma-Ata Declaration on Health for A l l provides one benchmark against which to evaluate a government's provision of basic public health services and information. W H O ' s Health for A l l policy stressed public health education on prevention and control of diseases, adequate food and nutrition, safe water supplies and basic sanitation, maternal and child health, immunization against major infectious diseases, prevention and control of endemic diseases, appropriate treatment for common diseases and injuries, and provision of essential drugs. See Fidler, supra note 40 at 45 citing A . L Taylor, "Making the World Health Organisation Work: A Legal Framework for Universal Access to the Conditions for Health" (1992) 18 A m . J. of Law & Medicine 301 at 315. 5 0 Basic factors affecting health would include other social, economic and cultural rights affecting the right to health - education, housing, safe working environment, food and nutrition. 63 The International Labour Organisation and the W o r l d Health Organisation observe Committee sessions from time to time, but neither group has made a single serious contribution to its work. The Committee lacks expertise. The membership consists o f attorneys general and diplomats who are nominated and elected and arrive at their positions through the spoils system - the prestige o f a seat on the Committee, six weeks a year in Geneva (expenses paid). O f the eighteen elected members, only some are capable o f a real contribution.. . 5 1 I f the right to health remains vague and indeterminate, it is not because it means nothing. It is rather because nation-states in the contemporary international system continue to stultify its progressive development by intentionally creating enforcement mechanisms that lack the capacity to articulate a practical human right to health. 5 2 The U N Committee on Economic, Social and Cultural Rights has maintained its tradition o f regular issuance o f 'general comments' on state obligations under the right to health. Its most recent general comment is arguably ambitious and hol is t ic . 5 3 It states that the right to health is closely related to and dependent upon the realisation o f other human rights as contained in the "International B i l l o f R igh t s" . 5 4 These include the rights to food, housing, work, human dignity, life, non-discrimination, equality, prohibition against torture, privacy, access to information, and the freedoms o f association, assembly and movement. 5 5 General Comment N O . 14 calls for co-ordinated efforts towards the realisation o f the right to health to enhance interaction among all relevant actors including various components o f c i v i l society. Relevant 51 See Economic and Social Rights and the Right to Health (An Interdisciplinary Discussion Held at Harvard Law School, September 1993) 36. 5 2 For a critique of the weak enforcement regime of human rights in international law generally, See Makau wa Mutua, "Looking Past the Human Rights Committee: A n Argument for De-Marginalizing Enforcement" (1998) 4 Buffalo Human Rights Law Rev. 211 (arguing that many official international human rights bodies such as the Human Rights Committee are weak, timid and ineffectual). 5 3 "The Right to the Highest Attainable Standard of Health" (General Comment No. 14, Committee on Economic, Social and Cultural Rights, 4 July 2000 E/C. 12/2000/4). 5 4 The International B i l l of Rights collectively refers to the Universal Declaration of Human Rights 1948, the International Covenant on Civ i l and Political Rights 1966, and the International Covenant on Economic, Social and Cultural Rights 1966. 5 5 "The Right to the Highest Attainable Standard of Health" (General Comment No. 14), supra note 53. 64 international organisations - W H O , I L O , U N D P , U N I C E F , U N F P A , the W o r l d Bank, regional development banks, I M F , W T O , and other bodies within the U N System -should co-operate effectively wi th States parties, building on their respective expertise, in relation to the implementation o f the right to health at national levels. In particular, the international financial institutions, notably the W o r l d Bank and I M F , should pay greater attention to the protection o f the right to health in their lending policies, credit agreements, and structural adjustment programmes. 5 6 Although commendable for its v is ion and coverage, it is highly debatable whether General Comment N o . 14 can radically change the behaviour o f states with respect to their obligation under the right to health. Pessimism still looms large because many crit ically important issues remain unresolved. Conspicuous among these issues is the wealth disparity between states. Does the financial, technical and economic handicap o f most developing countries hinder the realisation o f the right to health? I f answered in the affirmative as most scholars suggest, then what is the extent o f an obligation ( i f any) owed by the r ich and industrialised states under international human rights law to commit financial and economic resources toward the eradication o f disease or promotion o f health in a developing country? Does Ar t ic le 2 o f the International Covenant on Economic, Social , and Cultural Rights contemplate that countries have obligation(s) to aliens abroad? A m i r Attaran put the question succinctly thus: Are States obliged to promote health abroad? 5 7 International lawyers who are sti l l trapped within the 'decaying pi l lars ' o f the Westphalian international sys tem 5 8 founded 5 7 A . Attaran, "Human Rights and Biomedical Research Funding for the' Developing World: Discovering State Obligations Under the Right to Health" Vol.4 N o . l Health and Human Rights 26 5 8 The Treaty of Westphalia 1648 which ended thirty years of wars in Europe, reversed the subordination of European civil authorities to the Holy See, and led to the emergence of nation-states, is often cited by international scholars as the normative foundation of the modern international system. For an articulation of emerging global issues which threaten to dislocate a rigid state-model international system, see Mark W . Zacher, "The Decaying Pillars of the Westphalian Temple: Implications for International Order and Governance", in Governance Without Government: Order and 65 strongly on relations between nation-states argue that such an obligation offends state sovereignty. Louis Henkin , a progressive and liberal-minded international scholar, has indicted the Westphalian state system that continues to use 'the sword ' o f state sovereignty against promotion o f human rights abroad, the failure o f the international human rights movement to address the responsibility o f a state for human rights o f persons i n other states may reflect only the realities o f the state system. States are not ordinarily i n a position either to violate or to support the rights o f persons in other states. States are reluctant to submit their human rights behaviour to scrutiny by other states; states are reluctant to scrutinize the behaviour o f other states in respect o f their own inhabitants; surely states are reluctant to incur heavy costs for the sake o f rights o f persons in other countries.. . 5 9 Although this view represents the 'realities o f the state system', it seems antithetical to Art ic le 2 o f the International Covenant on Economic, Social and Cultural Rights that mandates states to take steps individual ly and through international assistance and co-operation, especially economic and technical, to the maximum o f its available resources, wi th a v iew to achieving progressively the full realisation o f economic and social rights enshrined i n the covenant. Is there an escape route from an extreme v iew o f state sovereignty insofar as the vexed question o f international assistance comes within the purview o f Art ic le 2 o f I C E S C R ? Although this question raises a serious conundrum, it has nonetheless been answered in the affirmative by a sizeable number o f commentators and multilateral institutions. A good scenario, according to Attaran, is where the resources and management employed to meet international obligations are whol ly domestic and located within the donor-state. 6 0 Henkin has argued persuasively that a r igid notion o f state sovereignty can be circumvented in some Change in World Politics J .N Rosenau & Ernst-Otto Czempiel eds., (Cambridge: Cambridge University Press, 1992) 58. 5 9 Louis Henkin, The Age of Rights (New York: Columbia University Press, 1990) 44. 6 0 A . Attran, supra note 57 at 35. 66 ways . 6 1 A logical extension o f this proposition is that an industrialised state is obligated to devote a certain percentage o f its resources to- for instance - commission research that would target the health problems o f inhabitants o f another country that may be poor. Whi l e I endorse this view, I do not suggest that a l l is we l l wi th the language o f Ar t ic le 2(1) o f the International Covenant on Economic, Social and Cultural Rights. The undertaking by a state party to, take steps . . . to the maximum o f its available resources, wi th a v iew to achieving progressively the full realization o f the rights recognized i n the present covenant, 6 2 is vague, verbose and too encompassing. A s argued by Robertson, "maximum o f its available resources", is a difficult phrase o f two warring adjectives describing an undefined noun. " M a x i m u m " stands for idealism and "available" stands for reality. " M a x i m u m " is the sword o f human rights rhetoric; "available" is the wiggle room for the state. 6 3 The vagueness o f this provision has offered an escape route to States Parties to the I C E S C R , thus leading to the unfortunate conclusion that the right to health is an i l lusion. V i rg in i a Leary remains one o f the few legal scholars who persistently argue that Art ic le 2(1) o f the I C E S C R can be interpreted ingeniously to give some meaning to i t . 6 4 This is without prejudice to the fact that it could be re-drafted in more practical language. A l l countries, Leary argues, 6 1 Henkin, supra note 59 at 45 argues that wealthy states are morally obligated and should be legally obligated to help the poorer states to give effect to some socio-economic rights - rights to food, housing, education, health-care, and an adequate standard of living - merely through financial aid and without forcible intervention. See also, M.C.R Craven, The International Covenant on Economic. Social and Cultural Rights: A Perspective on Its Development (Oxford University Press, 1995) 376. 6 2 Article 2(1) International Covenant on Economic, Social and Cultural Rights, supra note 33. 6 3 Robert E. Robertson, "Measuring State Compliance with the Obligation to Devote the Maximum Available Resources to Realizing Economic, Social and Cultural Rights" (1994) 16 Human Rights Quarterly 693. 6 4 Leary, supra note 39 at 46. 67 have at least some "available resources" - even i f severely l imited in comparison with other countries. Hence, under the Covenant, al l ratifying States are obligated to respect the right to health, regardless o f their level o f economic development. The same paragraph o f the Covenant also refers to the possibili ty o f States call ing upon international assistance to achieve the respect for the right to health. 6 5 Although Robertson's argument that the noun "resources" is undefined under the I C E S C R can hardly be faulted, the pertinent question is whether the perceived vagueness surrounding the provisions o f the I C E S C R can be circumvented i f we shift the focus, locus and paradigm o f the right to health discourse from the I C E S C R to other international normative or even soft-law mechanisms. This question stems from the perceived failure - in most o f the developing wor ld - o f the 1978 W H O - U N I C E F A l m a - A t a Declaration on Health for A l l by 2000 (A lma-Ata declaration). 6 6 In other words, since the provisions o f the A l m a - A t a Declaration are unambiguous, why did it fail to improve the health o f populations mostly in developing countries? Al though the answer is complex, the failure to realise Health for A l l by 2000 in most o f the developing world raises the vexed question o f resource transfer from rich to poor countries. The failure o f 'resource transfer' frustrated the A l m a - A t a Declaration, which to date remains one o f the most pragmatic articulations o f global health challenges including right to health discourse. The Pan-American Health Organisation ( P A H O ) observed that "the goal o f Health for A l l by the year 2000 is...the most concrete and useful definition o f the programmatic social right to health protection, and may more succinctly express the common view o f the responsibility o f the state for the health o f its people." 6 7 llbid-See World Health Organisation, Declaration of Alma-Ata, 12 September 1978 (hereafter Declaration of Alma Ata). 6 7 Pan American Health Organization, The Right to Health in the Americas , H . Fuenzalida-Puelma & S.S Connor eds., (Washington D C : P A H O , 1989) 603. 68 A n exploration o f the right to health in global health scholarship, as this inquiry tries to do, reveals one undeniable fact: that wealth disparities between countries have stymied efforts to tackle global health challenges. The A l m a - A t a Declaration captured these disparities in the fol lowing terms, The existing gross inequality i n the health status o f the people between developed and developing countries as we l l as wi th in countries is polit ically, socially and economically unacceptable, and is therefore o f common concern to a l l countries. 6 8 The inability o f the international system to narrow the development gap between the South and the North not only frustrated the ideals o f the A l m a - A t a Declaration, but also o f pragmatic efforts to articulate a viable human right to health. In sum, I argue that this is one way through which the international system has continued to globalise poverty, which intentionally or accidentally exacerbates inequalities and avoidable turbulence within the global neighbourhood. The next level o f inquiry focuses on yet another medium o f resource transfer aimed at fostering development in the South>-Structural Adjustment Programs - and their implications for the health o f populations in the recipient countries. D(II): GLOBALISATION OF POVERTY, STRUCTURAL ADJUSTMENT PROGRAMS AND PUBLIC HEALTH IN THE GLOBAL SOUTH Structural Adjustment Programs (SAPs) prescribed by international financial institutions (IFIs) - the W o r l d Bank and the International Monetary Fund ( IMF) - for most developing countries became intensely controversial in the 1990s. 6 9 S A P s involve an economic liberalisation scheme founded more on market forces and strong private sector participation, and less on government intervention in the provision o f social services. In particular, S A P s involve the removal o f barriers to exports and 6 8 Declaration of Alma-Ata, supra note 66. 6 9 David P. Fidler, "Neither Science Nor Shamans: Globalization of Markets and Health in the Developing World" (1999) 7 Indiana Journal of Global Legal Studies 191 at 204-206; David P. Fidler, 69 imports as we l l as an increased foreign investment in the economies o f the developing world. A s stated by Cleary, S A P s are closely identified with the ideological bel ief in 70 the superiority o f the market over economic planning. S A P s are rooted in an almost mystical faith in the private sector, wh ich operating under freer domestic and external market conditions w i l l provide the motive and power for a resumption o f growth and development. 7 1 The ideology o f S A P s is, therefore, a revival o f economic liberalism with market-oriented strategies, free-trade, and a minimal state intervention as its key elements. 7 2 The controversy surrounding S A P s , particularly their linkage wi th poverty and public health in the developing wor ld , has polarised scholars who have analysed S A P s from diverse disciplines - poli t ical science, economics, law and public health. A recent study argued that there is no conclusive evidence that S A P s cause poverty. 7 3 The divergence o f scholarly opinions underscores the complexities o f S A P s , and makes any attempt to analyse the interaction o f S A P s and public health in the developing wor ld a difficult task. To give a balanced view therefore, it is important to explore the pros and cons o f S A P s , their implementation, and perceived impact ion public health. Advocates o f S A P s maintain that there is no alternative to S A P s and that adjustments have resulted in the stabilisation o f most economies so that these countries can now repay their debt to IFIs. The recipient countries o f S A P s are now able to restore credit, attract foreign investment, and reverse unsustainable economic " A Kinder, Gentler System of Capitulations? International Law, Structural Adjustment Policies, and the Standard of Liberal, Globalized Civilization" (2000) 35 Texas International Law Journal 327. 7 0 S. Cleary, Structural Adjustment in Africa, quoted in David Simon, et al (eds.) Structurally Adjusted Africa: Poverty. Debt and Basic Needs (London: Pluto Press, 1995) 3. 7 1 B . K Campbell & J. Loxley, eds., Structural Adjustment in Africa (Hampshire, U K , Palgrave, 1989) 41. 7 2 D. Simon, supra note 70 at 3. 7 3 D .E Sahn, et al, Structural Adjustment Reconsidered: Economic Policy and Poverty in Africa (Oxford: Oxford University Press, 1997) 254. For opposing perspectives on SAPs, see generally Michel Chossudovsky, The Globalization of Poverty: Impacts of I M F and World Bank Reforms (Penang, Malaysia: Third World Network, 1997); R. Kei ly et al, (eds.) Globalisation and the Third World (London: Routledge, 1998) 32; G . A Cornia et al., (eds.) Africa's Recovery in the 1990s: From Stagnation and Adjustment to Human Development (Basingstoke: Macmillan, 1992); W. vam Geest, 70 policies that compelled the prescription o f S A P s i n the first place. It is undeniable that the prescription o f S A P s has a noble objective o f propping up ai l ing economies through sustainable economic policies. However, their implementation have led to difficult socio-economic problems as a result o f cuts in social programs: public health, education, housing, and jobs. M i c h e l Chossudovsky calls this "economic genocide", by which he means "a conscious and deliberate manipulation o f market forces by global institutions" - W o r l d Bank, I M F and W o r l d Trade Organisation ( W T O ) . 7 4 S A P s affect the lives o f more than four b i l l i on people in the global South and Chossudovsky observed that "this new form o f economic domination - a form, o f market colonialism - subordinates people and governments through the seemingly 'neutral' interplay o f market forces". 7 5 The cumulative end result o f the multiple dimensions o f S A P s , according to Chossudovsky, has been the collapse o f internal purchasing power, disintegration o f families, closure o f schools and health cl inics, and the denial o f the right to primary education to mil l ions o f children. In many regions o f the developing world, W o r l d Bank reforms have precipitated the resurgence : o f infectious diseases including tuberculosis, malaria, and cholera . 7 6 In other development prescriptions outside the boundaries o f S A P s , IFIs are now confronted with a strange paradox - the W o r l d Bank ' s mandate o f "combating poverty and protecting the environment" and its support for large-scale hydroelectric and agro-industrial projects. These projects speed up the process o f deforestation, and the destruction o f natural environment, leading to the forced displacement and eviction o f several mi l l i on people in the developing w o r l d . 7 7 ed., Negotiating Structural Adjustment in Africa (New York: U N D P , 1994); R. Lensink, Structural Adjustment in Sub-Saharan Africa (New York: Addison-Wesley, 1996). 7 4 Chossudovsky, ibid at 37. 7 5 ibid. 76 ibid, '"ibid. 71 From the perspective o f public health, especially, the epidemiology o f infectious diseases, the adverse health effects o f unsustainable development is underscored by the 'balance model ' used by epidemiologists to study the emergence and re-emergence o f infectious diseases. It refers to the interaction o f three forces: agent (A) , host (H), and environmental (E) factors. The balance model is based on the prediction that i f a disease agent's infectious ability increases, or its ability to survive becomes more efficient, epidemic outbreaks o f illness w i l l occur, even i f al l else among the three factors remain unchanged. A l s o included i n the factors that precipitate disease in the interaction o f these three forces are the modification o f the host's ability to resist disease (e.g. malnutrition, mass starvation, famine), and the modification o f the environment (e.g. unsustainable construction o f dams) to make it more conducive for infectious agents to develop and survive . 7 8 Us ing the balance model, the W o r l d Health Organisation, for instance, observed that the alteration o f the environment through the unsustainable construction o f hydro-electric dams in China, Egypt, Ghana, and Senegal has led to an increase in schistosomiasis outbreaks. 7 9 The public health implications o f S A P s and similar development prescriptions by IFIs have become the subject o f powerful critiques by leading scholars o f humane wor ld order. Richard Fa lk characterises contemporary market-driven global civil isation as having fallen v ic t im o f the logic o f global capital; indifferent to the plight o f the poor and jobless; insensitive in the face o f oppression and exploitation; irresponsible with See generally, R.F Whalley & T.J Hashim, A Textbook of World Health: A Practical Guide to Global Health Care (New York: C R C Press/Partheneon, 1995). 7 9 World Health Organization, Removing Obstacles to Healthy Development: Report on Infectious Diseases (Geneva: World Health Organization, 1999) 65. See also R.F Whalley & T.J Hashim, Ibid, for a similar observation on the disease implication of reckless construction of dams. 72 respect to the environment; and complacent about the crisis o f sustainability that w i l l be bequeathed to nature generations b o m in the twenty-first century. 8 0 Thus, The current ideological climate, wi th its neo-liberal dogma o f minimiz ing intrusions on the market and 'downsiz ing ' the role o f government i n relation to the provision o f public goods that compose the social agenda, suggest that the sort o f global c ivi l izat ion that is taking shape w i l l be widely perceived, not as a fulfilment o f a vis ion o f unity and harmony, but as a dysutopian result o f globalism-ffom-above that is mainly constituted by economistic ideas and pressures. 8 1 Acknowledging that the implementation o f S A P s have not been as successful as intended, the W o r l d Bank stated that future strategies should include a "continuous pursuit o f adjustment programs, which should evolve to take fuller account o f the social impact o f the reforms, o f investment needs to accelerate growth, and o f measures to ensure sustainability". 8 2 The indictment o f S A P s as hurting the poor and as "globalism-ffom-above" maps the road for alternative approaches. Because most scholarly discourse on Third W o r l d development has been characterised as unnecessarily reactive i n nature and deconstructive in scope, 8 3 I w i l l adopt an approach that synthesizes 'deconstruction/reaction' wi th 'reconstruction'. The relevance o f this approach in the global health domain stems from the need to narrow South-North disparities and reduce the persistent unequal global distribution o f burdens o f diseases between developed and developing worlds. The next part explores ways to narrow the 'South-North health gap' from relevant schools o f thought i n law. Richard Falk, "The Coming Global Civilization: Neo-Liberal or Humanist?" in Antony Anghie & G. Sturgess (eds.,), Legal Visions of the 21 s ' Century: Essays in Honour of Judge Christopher Weeramantrv (The Hague: Kluwer, 1998) 15. For Falk's extensive critique of present world order and his proposal for a humane world order, See On Humane Governance: Toward a New Global Politics (College Park, P A : Penn. State University Press, 1995). 81 Ibid. 8 2 The World Bank, Sub-Saharan Africa: From Crisis to Sustainable Growth (Washington, D.C: The World Bank, 1989) 62. 83 See Karin Mickelson, "Rhetoric or Rage: Third World Voices in International Legal Discourse" (1998) 16 Wisconsin International Law Journal 353 (asserting inter alia that to the extent that a broader Third World approach to international law is recognized at all, it is ordinarily characterized as essentially reactive in nature). 73 E: BRIDGING SOUTH-NORTH HEALTH DIVIDE: LAW AND DEVELOPMENT Development is a concept that means different things to different people in different disciplines. A s I have argued, one o f the major criticisms o f S A P s is that they are hostile to their host environments. They are prescriptions from a hierarchical paradigm and therefore alien to the social, economic, and cultural context o f their recipient countries. This raises a number o f questions, which many disciplines - law, poli t ical science, anthropology, economics, and sociology - are bound to answer in different ways. In the global arena, the concept o f development acquires more complexity and elusiveness because o f the strategic interests o f nation-states fuelled by myopic protectionism and hard-nosed realism, as we l l as the acrimonious tone: o f the South-North debate on global issues in multilateral forums. Does it then mean that the concept o f development is completely elusive? V i e w e d from global health challenges, the answer is clearly in the negative. It is now widely accepted that development in the global health context connotes such inexorably l inked conditions as "peace, shelter, education, food, income, stable eco-system, sustainable resources, 84 justice and equity". Thus, "development is a process intended to better socio-economic conditions and to contribute to human digni ty" . 8 5 The goals o f development - through the reduction o f poverty - therefore, are to contribute to social, economic, For a clear articulation of these developmental pre-requisites in the context o f health promotion, see Ottawa Charter for Health Promotion 1986 (Adopted at the first International Conference on Health Promotion, Ottawa, Canada, 21 November 1986). For a discussion of the Ottawa Charter from a broad public health as opposed to medical perspective, see J. Mann, et al, "Health and Human Rights" (1994) Vol.1 N o . l Health & Human Rights 7. The World Health Report issued annually by the World Health Organisation has articulated most of the issues outlined by the Ottawa Charter, see for instance, World Health Organisation, The World Health Report 1995: Bridging the Gaps (Geneva: W H O , 1995); The World Health Report 1996: Fighting Disease. Fostering Development (Geneva: W H O , 1996); The World Health Report 1997: Conquering Suffering. Enriching Humanity (Geneva: W H O , 1997) (each reporting in varying lengths the impact o f food insecurity, inadequate housing, poor sanitation and environmental degradation, illiteracy, political conflicts, and civil wars on human health. 8 5 Ivan L . Head, "The Contribution of International Law to Development" (1987) X X V Canadian Yearbook of International Law 33. 74 and polit ical enrichment within a society and so reduce the l ikel ihood o f conflict within and among societies. 8 6 The W H O Director-General argues that the road out o f the vicious cycle o f poverty, infection and illness begins with efforts that contribute to a person's abili ty to meet basic needs. 8 7 The problem does not end wi th having a working definition or an idea o f what development entails. Definit ion may indeed be a means to an end, and not an end in itself. The real problem is that since the South-North health divide is intertwined with development, and development is a variegated concept from multidisciplinary perspectives, how then do we study different societies to ensure that development processes (including SAPs ) are not hostile to public health? Put another way, how can development be humane within the context o f global multiculturalism, diversities and medical pluralism across societies? I f market-driven global civil isation, as Richard Fa lk argues, is "a dysutopian result o f globahsm-from-above"; then the solution lies i n exploring ways to adopt a bottom-up approach: globalisation-from-below. This would , inter alia, involve an effective integration o f sustainable indigenous practices i n the development process. . Al though lawyers have studied these issues peripherally, seminal works from the schools o f comparative law, law and development, and law and anthropology provide some useful legal insights. A s Laura Nader put it: while I do not believe that we can adopt a wholesale Western jurisprudential categories o f law for use i n non-Westem cultures, it is possible that we could explici t ly state that we are using an outline o f Ag io -Amer ican common law, for example, against which or from which we view exotic legal systems. A t least we would be clear about what our biases were. 8 9 Gro Harlem Brundtland, " A Call for Healthy Development", supra note 16 at 66. 88 Supra note 81. 8 9 Laura Nader, "The Anthroplogical Study of Law", in American Anthropology Vol.67 at 25. For a further exploration of this theme from law and anthropology school of thought, see C. Geertz, "Local Knowledge: Fact and Law in Comparative Perspective", in Further Essays in Interpretive Anthropology (New York: Basic Books, 1989). 75 Theorists o f law and development remind us that theories o f modernisation and dependency appear to reflect the ideological hegemony o f Western capitalism and the dominant forces o f contemporary imperialism. These theories assume that the developing wor ld must necessarily fol low a path roughly similar to that o f the developed capitalist countries. 9 0 Back in 1972, D a v i d Trubek argued that the so-called "core conception o f modern l aw " has misdirected the study o f law and development by asserting that only one type o f law - that found in the West - is essential for economic, social, and poli t ical development in the Third W o r l d . 9 1 These legal theoretical perspectives are i n pari-materia wi th emerging views in mainstream economics. W i t h respect to S A P s and Afr ican economies, economists have moved from scholarship o f reaction and deconstruction to an elaborate articulation o f "Afr ican perspectives on adjustment". 9 2 In sum, the canons o f this school o f thought underscore the need, among others; to (i)make pol icy design sensitive to each individual country's historical and init ial conditions; and (ii) ito evolve a sound pol icy framework to address the fundamental crisis o f poverty and underdevelopment, and enable Af r i ca to compete i n a globalised world. To achieve this however, the state cannot be reduced to a passive entity as the W o r l d Bank insists. Rather, decisions, consultations, and debate are needed to identify sectors that See for instance, Francis G . Snyder, "Law and Development in the Light of Dependency Theory" (1980) 14 Law & Society Review 723. 9 1 David M . Trubek, "Towards a Social Theory of Law: A n Essay on the Study of Law and Development" (1972) 82 Yale Law Journal 1. Trubek's view radically departs from the theory of Max Weber whose concern was to explain the influence and the role of Western legal system in the triumph of capitalism in Europe. See Max Weber, Economy and Society. Vols. l&II G . Roth & C. Wittich eds., (Berkeley/Los Angeles, University of California Press, 1978). For a recent critique of the Weberian conception of legitimacy of law and legal system, see Obiora Chinedu Okafor, "The Concept of Legitimate Governance in the Contemporary International Legal System" (1997) 44 Netherlands Int'l Law Rev. 33. For a discussion of competing social models of mental health care from Western and non-Western perspectives, see S. Salzberg, "The Social Model: Health Care and Law in Comparative Context", (1993) Proceedings of Congress of the World Federation for Mental Health, August 1993. 9 2 See for instance, T. Mkandawire & C .C Soludo, Our Continent. Our Future: African Perspectives on Adjustment (Ottawa: International Development Research Council, in conjunction with the Council for the Development of Social Science Research in Africa, 1999). 76 could yie ld long-term comparative advantages for Afr ican countries. 9 3 It seems that the W o r l d Bank has begun to acknowledge the relevance o f these emerging perspectives. In one o f its numerous reports, the bank observed that "development practitioners from the Nor th have often prepared programs for the South without the participation o f local officials.. . .These programs often inspire little commitment from the countries involved and as a result have often been ineffective". 9 4 Taken as whole, alternatives to contemporary global development policies, whether in law or economics, underscore the need to re-design policies that would be sensitive to local conditions. In this regard, one issue that is cri t ically important to this thesis is the interaction o f traditional malaria therapies prevalent in Afr ican societies and malaria control pol icy o f multilateral institutions. C a n these traditional medical practices be synthesised wi th Western medicine vis-a-vis W H O ' s ongoing campaign against malaria? A p p l y i n g al l o f this to the South-North health divide, the need to evolve a humane multilateral health order remains a necessity that holds a certain promise towards the realisation o f public health as a global public good. F;: SUMMARY OF THE ARGUMENTS: ARE WE STILL IN A GLOBAL NEIGHBOURHOOD? This chapter argued that al l o f humanity is inexorably bonded by the values o f human dignity that transcend geo-political and ethno-cultural boundaries. In our time and age, these bonds have continued to decay as a result o f vicious forces o f poverty and underdevelopment. Our contemporary international society where eighty percent o f the world 's population is confined to the penitentiary o f poverty, malnutrition, underdevelopment, food insecurity, inadequate housing, and environmental pollution The World Bank, Sub-Saharan Africa: From Crisis to Sustainable Growth (Washington, D.C: The World Bank, 1989) 62. For a recent discussion of the social impact of its policies by the bank, see D. Marayan, et al., eds., The Voices of the Poor Crying Out for Change (Washington. D.C: The World Bank, 2000). 77 is comparable to medieval feudalism. The paradox o f global neighbourhood i n a divided world is central to the challenges o f health protection and promotion not as prophecy o f doom, but as a strategy to rethink ways to salvage 'our global health future' by avoiding the avoidable errors o f past decades. The beginning or end o f every mil lennium provides an opportunity for stock-taking on multiple dimensions o f global relations. The transition from the dusk o f the twentieth century to the dawn o f the twenty-first century presents humankind with a window o f opportunity to rethink the complex socio-economic conditions that impact on humanity's health in a multilateral context. In the dawn o f the twenty-first century, there are old lessons to be relearned: the most basic being that al l human life is o f va lue . 9 5 In subsequent chapters, I argue that al l o f humanity w i l l be mutually vulnerable should we fail to re-learn these lessons. I argue as we l l that contemporary multilateralism that remains insensitive to humane values, i f unreformed, w i l l adversely affect human health in parts o f the developing wor ld i n ways that would continue to cause significant turbulence in the entire global neighbourhood. B y analogy, when one part o f the human body is sick, the whole body could hardly function properly; so it is that when one part o f the global village is a reservoir o f preventable diseases, the entire neighbourhood could be perpetually endangered. Ivan L. Head, supra note 12 at 215. 78 CHAPTER THREE MUTUAL VULNERABILITY AND GLOBALISATION OF PUBLIC H E A L T H IN THE GLOBAL NEIGHBOURHOOD A: OVERVIEW OF THE ARGUMENT Mutual vulnerability refers to the vicious threats posed to humans by diseases and pathogenic microbes in an interdependent world, the fragility of humans to succumb to those threats, and the obsolescence of the erstwhile traditional distinction between national and international health threats. A disturbing complexity of this microbe-humanity dynamic is that diseases traditionally thought to be limited to certain regions of the world have emerged in other regions, while diseases thought to be under control have re-emerged in the same regions with renewed vigour.1 Within the global neighbourhood, populations both in the South and North are now mutually vulnerable to the traditional and re-emerging powers of the microbial world. The globalising forces of trade and travel combine with the imperatives of human migrations caused by political conflicts, civil wars and environmental crisis, to propel both the efficacy of microbial threats and the complex dynamics of mutual vulnerability. Were disease pathogens to carry national passports or respect geo-political boundaries, the concept of mutual vulnerability would have - at best - been a national security issue within the domestic jurisdiction of nation-states. But the phenomenon of globalisation has shattered the illusions of protectionism 1 Most of the public health literature lumps emerging and re-emerging infectious diseases together as 'emerging infectious diseases' (EIDs). The U.S Centres for Disease Control and Prevention (CDC) defines EIDs as "diseases of infectious origin whose incidence in humans has increased within the past two decades or threatens to increase in the near future". See CDC, Addressing Emerging Infectious Disease Threats: A Prevention Strategy for the United States (Atlanta, Georgia: CDC, 1994) 1. See also World Health Organisation, World Health Report 1996: Fighting Disease. Fostering Development (Geneva: WHO, 1996) 15. This definition includes completely new diseases that have emerged and previously known diseases that have either re-emerged in their traditional locations or in new parts of the world. 79 and isolationism. An obvious consequence of globalisation is the increased vulnerability of national boundaries to microbial threats. As rightly observed by Nakajima, in the late twentieth century, an era characterized by the globalization of the world's political economy, the threat of infectious disease transmission across national borders and the expansion of the trade and promotion of harmful commodities, such as tobacco, represent transnational health problems....These issues pose threats to the security and well-being of citizens in all states....The fact that the political boundaries of sovereign states do not represent natural barriers to infectious agents or to harmful products underscores the need for interstate co-operation to address these global health issues.2 Globalisation is not the only factor that contributes to transboundary spread of emerging and re-emerging infectious diseases. The power of nature, complacency, the breakdown of surveillance capacities, and socio-economic and environmental degradation3 are also relevant factors.4 The culmination of these factors underpins a compelling necessity that the global society must revisit the ideals of self-interest.5 The concept of mutual vulnerability is not new in multilateral health challenges and governance. It has been with humankind from the earliest historical accounts of the 2 Hiroshi Nakajima, "Global Disease Threats and Foreign Policy" (1997) Vol. IV No.l The Brown Journal of World Affairs 319. 3 Within socio-economic and environmental factors that contribute to transboundary spread of EIDs, Fidler mentions and discusses social unrest and war, environmental degradation, changes in human behaviour, urbanisation, and poverty. See David P. Fidler, "Return of the Fourth Horseman: Emerging Infectious Diseases and International Law" (1997) 81 Minnesota Law Rev. 771. 4 ibid. 5 See House Report No. 706: Hearings Before the Committee on Foreign Relations. House of Representatives. 70 lh US Congress stating inter alia that "it has been observed that many deadly diseases, once considered to be indigenous to the Tropics may be and are carried to the Temperate Zones by various transmitting agencies, and there seem to become indigenous with no diminution in their virulence.... Hence, each nation in more or less degree must become the keeper of its brother nations; this as a matter of self-protection if for no other reason" (my emphasis) quoted in Nakajima, supra note 2 at 319. 80 cross-border spread of diseases. Thucydide's account of the Athenian plague of 430BC, 6 Bubonic Plague (Black Death) in fourteenth century Europe,7 and the emergence of new diseases among native populations in the Americas following their 'conquest' by Europeans are all evidence of what one writer aptly calls "the microbial unification of the world". The arrival of Columbus in the Americas marked the beginning of a new era in mutuality of vulnerability - a 'discovery' of 'new worlds' by the Old World. According to Porter, the meeting of far-flung peoples who had never previously had any contact had major consequences for epidemic infections. Europeans devastated Amerindian populations by bringing them into contact with the common diseases of the Old World. Infections such as smallpox, measles, mumps, chickenpox, and scarlet fever-had a massive impact upon populations that had never experienced them before. The vulnerability of native populations in the 'New World' meant that pandemics decimated the Caribbean Indians, and swept through urbanized societies in Mexico, and Peru at a catastrophic rate.9 The 'microbial unification of the world' was almost concluded when 6 Thucydides, History of the Peloponnesian War, op cit., (suggesting that plague originated from Ethiopia and spread through Egypt and Libya before it arrived Athens, as a result of movement of troops during the war). 7 J.N Hays, The Burdens of Disease: Epidemics and Human Response in Western History (New Brunswick, NJ: Rutgers University Press, 1998) 39 (arguing that most historians now say that the Black Death had its origins in the reservoir of infection found in Central Asia, not far from Lake Issyk K u l in what is today known as Kyrgyzstan). See also, Nakajima, supra note 2 at 320 stating that plague from Asia reached Italy in 1347 after it spread from Mongolia across Asia. The path of the Black Death followed international travel and trading routes, and subsequently spread to Europe and North Africa. See generally, Sheldon Watts, Epidemics and History: Disease, Power and Imperialism (New Haven/London: Yale University Press, 1997) pp. 1-25; Dorothy Porter, Health, Civilization and the State: A History of Public Health from Ancient to Modern Times (London/New York: Routledge, 1999) pp. 31-34. 8 Giovanni Berlinguer, "Health and Equity as a Primary Goal" (1999) Vol . 42 No.4 Development (Responses to Globalization: Rethinking Health and Equity) 17 at 18. 9 Dorothy Porter, Health, Civilization and the State, supra note 7 at 46; See also Giovanni Berlinguer, Ibid, at 18 arguing that the discovery (or conquest) of America by Europeans - a turning point in history - meant also the transition from the separation of peoples and diseases to mutual interchange and communication. Until that time, differences in environmental conditions and nutritional patterns, in social and cultural organization, in the presence or absence of biological agents and vectors of transmissible diseases, had produced markedly different epidemiological trends in the Old and New Worlds. Indeed smallpox, measles, 81 the Amerindian populations began to die out (in massive numbers) as a result of 'imported' European diseases, and Europeans began to replace their lost labour power with slaves from West Africa. West African slaves brought falciparum malaria to the Americas, and the water casks on the slave ships brought the mosquito that carried yellow fever. This triangular disease exchange between Europeans, Native Americans and Africans dynamically propelled mutual vulnerability in ways hitherto unknown in human history.10 Hays rightly observed that "since the sixteenth century the world has shrunk, with greater opportunities for the rapid movement of microbes to new populations".11 This chapter re-visits and explores the historical account of 'transnationalisation' of diseases, early and contemporary multilateral initiatives on public health, and argues that in a globalising world, mutual vulnerability is the single most important catalyst to re-kindle mutual self interest between the South and the North. I use the re-emergence of tuberculosis and the so-called 'airport' or 'imported' malaria in parts of the industrialised global North (especially North America and Europe) to explore mutual vulnerability in the present era of emerging and re-emerging infectious diseases (EIDs). and yellow fever did not exist in the Americas, while syphilis was unknown in Eurasia and Africa. For a detailed discussion of disease exchanges between continents especially after the conquest of the Americas by Europeans, see A.W Crosby, The Columbian Exchange: Biological and Cultural Consequences of 1492 (Westport, Connecticut: Greenwood Press, 1972); A.W Crosby, Ecological Imperialism: The Biological Expansion of Europe 900-1900 (Cambridge: Cambridge University Press, 1986). 10 ibid. For a good historical account of the decimation of Native Indian populations by smallpox in the post-Columbus Americas, as well as the complex interaction of the disease with populations in the Old and New Worlds, See Sheldon Watts, supra note 7 pp 89-121. 1 1 J.N Hays, supra note 7 at 7. 82 B: RETROSPECTIVE VISION: DISEASES, PEOPLES AND NATION-STATES IN HISTORICAL PERSPECTIVE The interaction between humanity and diseases is as old as human history. In his seminal work, Plagues and Peoples, McNeil l argued that infectious disease which antedated the emergence of humankind will last as long as humanity itself, and will surely remain as one of the fundamental parameters and determinants of human history.12 From time immemorial predating the invention of modern science, human societies across the world reacted to diseases in various ways. In the pre-Hippocratic13 period, the Jews, early Christians and pagans who formed part of the ancient Greek and Roman civilisations developed a variety of beliefs, practices and even folklore to deal with physical bodily disorders occasioned by disease.14 Likewise, societies in Africa, Asia and the Americas - prior to their contacts with European colonial powers - reacted to disease events in various natural, supernatural and superstitious ways. Zinsser observed that 1 2 W. McNeill, Plagues and Peoples (New York: Doubleday, 1976) 257. 1 3 Hippocrates, who lived in the Greek Island of Cos, is often widely cited (not without controversy though) in public health literature as the founder of modern medicine. Dorothy Porter, supra note 7 at 15 argued that Hippocrates was probably an historical figure who lived some time between 460-361 BC. His ancient biographers, including Aristotle and Plato, praised him as a great and honoured physician, but it is uncertain whether he authored any of the collection of essays and text known as the Hippocratic Corpus. The Corpus was compiled by many authors, and absorbed the traditions of many of the Greek medical communities. Hippocratic medicine radically departed from the religious and mystical traditions of healing and stressed that disease was a natural event, not caused by supernatural forces. Hans Zinsser, in Rats. Lice and History: A Chronicle of Pestilence and Plagues (New York: Black Dog & Leventhal, 1963) at 112 observed that Hippocrates was probably not the first great physician of antiquity. It is likely that many skilful and sagacious medical men practised in ancient Egypt where, according to Herodotus, physicians were even more highly specialized than they are today, since they often limited themselves to a single organ of the body. There were dentists, as well as internists and surgeons. Hippocrates, however, is the first great physician from whom we have records and writings which show an approach to medical problems entirely analogous to our own. 1 4 J.N Hays, supra note 7 at 8. 83 before the time of the Greeks, the interpretation of infectious diseases was, in most instances, largely guesswork.15 This 'guesswork' - in part, due to inconclusive scientific proof of the cause of certain diseases - affected adversely nineteenth century efforts by European states to forge multilateral co-operation as panacea to mutual vulnerability. Although, as already stated, mutual vulnerability historically dates back to - or even possibly predates - the Athenian plague of 430 B C , the earliest attempt to tackle its complex dynamics through multilateral initiatives is both relatively and comparatively recent. More than two hundred years after the evolution of modern nation-states - in Europe - through the normative instrument of the Peace of Westphalia 1648, infallible scientific proof of the exact cause of certain diseases (especially cholera) was still lacking. This lacuna not only provided a fertile opportunity to some European nation-states to object to early attempts at multilateral regulation of cholera by a series of international sanitary conferences and conventions; it also revived - in some ways - the various conceptions of disease held by populations in ancient times. In Goodman's words, "at the time when epidemic disease was thought to be a punishment from the gods, little could be done to prevent its spread save prayer and sacrifices".16 It is in this context that mutual vulnerability and the evolution of nineteenth century multilateral initiatives on public health will be explored. 1 5 Hans Zinsser, Rats. Lice and History, supra note 13 at 111. 1 6 Neville Goodman, International Health Organizations and Their Work (Edinburgh/London: Churchill & Livingstone, 1971)27. 84 C: MUTUAL VULNERABILITY AND THE EVOLUTION OF PUBLIC H E A L T H MULTILATERALISM The microbial unification of the world, which was concluded by the European conquest of the Americas and the transatlantic slave trade from Africa to America, opened a new vista in microbe-human interaction. Across the world, pathogenic microbes travelled long distances with unprecedented speed, permeated national boundaries with ease, and constituted serious menaces to populations. Driven by the desire to protect their populations, most nation-states introduced and enforced strict quarantine regulations.17 Goodman has identified three reactions by nation-states to the transboundary spread of disease before 1851, when the first International Sanitary Conference was held. The first was the predominant view that disease was a punishment from the gods that could only be cured by prayers and sacrifices. The second was the isolation of a healthy society from an unhealthy one through the practice of cordon sanitaire - to prevent either importation or exportation of disease. The third was the practice of quarantine, which enabled governments to isolate goods or persons coming from places suspected of suffering an outbreak of disease to protect the community from disease importation.18 Goodman also observed that between the fourteenth and nineteenth centuries nearly all 'civilized' 1 7 For a history of the concept of quarantine, see B. Mafart & J.L Perret, "History of the Concept of Quarantine" (March 1998) 58 Med. Trop. 14-20 (defining quarantine as a concept developed by society to protect against the outbreak of contagious disease). Neville Goodman, supra note 16 at 29 states that quarantine is a word derived from the forty-day (quaranta) isolation period imposed at Venice in 1403 and said to be based on the period during which Jesus and Moses had remained in isolation in the desert. Paul Slack's "Introduction" in P. Slack & T. Ranger (eds.), Epidemics and Ideas: Essays on the Historical Perception of Pestilence (Cambridge: Cambridge University Press, 1992) at 15 noted that quarantine practices began in Italian city-states in the fifteenth century. 18 See Goodman, ibid at pp27-29, also summarised by David P. Fidler, International Law and Infectious Diseases (Oxford: Clarendon Press, 1999) 26. 85 countries of the world adopted some form of quarantine control. This control consisted mainly of imposing an arbitrary period of isolation on the ships, crews, passengers and goods arriving from foreign ports believed to be reservoirs of major epidemic diseases, especially plague, yellow fever and later cholera.19 The incoherence and nuisance value of various quarantine regimes, and how their enforcement adversely affected movement of cargo and people, are better appreciated from a detailed account given by one scholar: On disembarking, the Master of an infected or suspected ship was required to stand before an iron grille, swear on oath to tell the truth, and then throw the ship's bill of health into a basin of vinegar. An official would then plunge the bill beneath the surface with the aid of iron tongs and, when it was judged to have been well soaked, remove it by the same means, lay it on the end of a plank, and thus present it to the "conservateur de la sante", who would read it without touching it. Letters from the unfortunate sick or suspect passengers confined to a lazaret had to be thrown for a distance of ten paces, retrieved with long tongs, plunged into vinegar, and then passed through the flame and smoke of ignited gunpowder. The personnel of the lazaret wore wooden clogs and oilskin jackets, trousers and gloves.2 0 The nuisance value of quarantine is also illustrated in popular art. In William Shakespeare's Romeo and Juliet, an outbreak of infectious disease and a subsequent imposition of quarantine led to the isolation of Friar John on his way to Mantua. As a result of his isolation, Friar John was prevented from travelling to Mantua to deliver an important letter from Friar Lawrence to Romeo that his lover Juliet was not dead, but Norman Howard-Jones, The Scientific Background of the International Sanitary Conferences 1851-1938 (Geneva: World Health Organization, 1975) 11 quoting the English translation from J.P Papon, De la Peste ou les epoques ce fleau et les moyens de s'en preserver Vol.11 (Paris, 1800). Howard-Jones stated further that very similar precautions were prescribed in the quarantine regulations promulgated by the French Minister of Commerce in 1835. Article 614 stated that where there was need for surgical intervention, a surgical student should be "invited" to be incarcerated with the patient - students presumably being more expendable than doctors. The latter had to be separated from patients with "contagious" diseases by "at 86 only sleeping. Had Friar John not been isolated, the tragic deaths of Romeo and Juliet would have been avoided.21 To what extent, i f at all, were these extreme national protectionist policies effective in controlling the transboundary spread of disease? Did isolationism protect populations within national boundaries from microbial threats? Did extreme protectionism diminish mutual vulnerability in any significant ways? It took only two epidemics of cholera in Europe in 1830 and 1847 to expose the impotence of quarantine. European cholera epidemics de-mystified the myth that quarantine, cordon sanitaire or other pre-existing domestic protectionist policies, at that time, provided a watertight defence against, or insulation from, diseases. These mid-nineteenth century epidemics not only decimated populations, they also wrote a new chapter in the whole concept of mutual vulnerability. For centuries, as Goodman observed, "cholera has been considered a disease, albeit terrible in its rapidity and high mortality, largely confined to Central Asia and particularly to Bengal.... But between 1828 and 1831 it passed out of India and spread rapidly to the whole of Europe and to the United States...."22 From Punjab, Afghanistan and Persia, least twelve metres". If the patient was too i l l to approach the limit of this no-man's land the doctor would prescribe supposedly suitable remedies on the basis of the report made by the student. 2 1 William Shakespeare, Romeo and Juliet (Dover Thrift Editions) (New York: Dover, 1993) Act V Scene II Friar John: "Going to find a bare-foot brother out, One of our order, to associate me, Here in this city visiting the sick, And finding him, the 'searchers' of the town, Suspecting that we both were in a house Where an infectious pestilence did reign, Seal'd up the doors and would not let us forth; So that my speed to Mantua was stay'd". ("Searchers of the town" are defined in the annotated note as "officers of the town responsible for public health during a plague"). 22 supra note 16 at 27. 87 It reached Moscow in 1830 and infected the whole of Europe, including England, by the end of 1831. It reached Canada and United States of America in the Summer of 1832. Another pandemic followed in 1847 and five others in the next fifty years. This was a new and terrifying disease to the western world and quarantines, even though at once tightened up under the pressure of public opinion and hence more vexatious than ever, seemed to be impotent to stop the spread. Just as within each national boundary fear of cholera overcame local jealousies and vested interests, so the nations were more inclined to consult together and try to devise measures against the common peril". 2 3 A second motivation for the evolution of multilateral co-operation in the field of public health lies in the exponential rise in international trade, travel and maritime commerce in post-Industrial Revolution Europe. The development of the steamship (about 1810), the railway (about 1830), and the construction of the Suez Canal in 1869 boosted trade and commercial transactions in nineteenth century Europe. With new commercial opportunities came new challenges. To facilitate transboundary movement of goods and populations, trade-hurting national quarantine regulations must necessarily be harmonised in a multilateral forum.24 The inseparable but complex fusion of the interlocking factors of mutual vulnerability occasioned by cholera epidemics of 1830 and 1847, and the need to multilaterally harmonise quarantine regulations occasioned by the nineteenth century imperatives of trade, travel and maritime commerce catalysed the earliest 'multilateralisation' of public health. The trade-health dynamic of the evolution of See Javed Siddiqi, World Health and World Politics: The World Health Organization and the U N System (London: Hurst & Co., 1995) 14 arguing that "the new ease of travel and trade also transformed hitherto foreign epidemic diseases such as cholera into European scourges. One early response of European states to limit the spread of cholera involved the quarantining of shipping at different ports for months at a time. Arbitrary and unequal quarantine regulations at various ports inevitably created great burdens on the international trade of ...maritime nations such as Britain and France, whose fear of economic collapse 88 international health co-operation meant, as Siddiqi noted, that with one eye on the common peril (cholera and other diseases), and the other on the worsening outlook for their maritime trade, governments found themselves without any other option than to attempt international collaboration against cholera and other epidemic diseases, including plague and yellow fever. At the initiative of France, eleven European states26 and Turkey were represented at the first International Sanitary Conference, which opened in Paris on 23 July 1851.2 7 From 1851 to the end of the nineteenth century, ten international sanitary conferences28 were convened, and eight sanitary conventions were negotiated on mutual vulnerability: the spread of infectious diseases (cholera, plague, and yellow fever) across European boundaries and the harmonisation of inconsistent national quarantines. Although most of the conventions were never ratified by the countries that participated in the conferences, and thus never entered into force stricto sensu, -.:<:• nonetheless nineteenth-century public health/infectious disease diplomacy signified the necessity of tackling the cross-border spread of epidemics multilaterally. The ten international sanitary conferences convened from 1851 to the end of the century thus overwhelmed their dread of imported disease and led them to support ... international action to relieve shipping from the burdensome shackles of quarantine regulations". 2 5 J . Siddiqi, ibid. Also Howard-Jones, supra note 20 at 11 stated that while the elaborate precautions of quarantine imposed intolerable constraints upon travellers, what governments found most irksome were the often disastrous hindrances to international commerce, and it was this concern that finally prompted the European nations to meet to discuss to what extent these onerous restrictions could be lifted without undue risk to the health of their populations. If, in the old colonial days, it was true that "trade follows the flag", it was equally true that the first faltering steps towards international health co-operation followed trade. 2 6 The States included Italian City States then known as the four Papal States: Sardinia, Tuscany and the Two Sicilies. Others were Austria, Great Britain, Greece, Portugal, Russia, Spain, and France - the convenor and host. 2 7 In this section, I am only concerned with mutual vulnerability as a motivating factor in the evolution of multilateral health co-operation. The politics, frustrations and shortcomings of regulating the cross-border spread of diseases, which were manifest in most of international sanitary conferences held from 1851 to the early twentieth century will be discussed in the next chapter on "vulnerability of multilateralism". 89 transformed the second half of the nineteenth century into an era of intensive infectious disease diplomacy. One obvious consequence of this was the frequent use of international law to strengthen multilateral public health co-operation. The number of conferences convened and conventions/agreements/treaties negotiated should however not be confused with success or progress on the multilateral control of infectious diseases because, as Fidler rightly observed, it took states so long to arrive at a 'universal' regime on infectious disease control.3 0 Forty-one years and six European-led international conferences elapsed from the first International Sanitary Conference in 1851 before the first effective international convention (restricted to cholera) was adopted at the International Sanitary Conference held in Venice in 1892.31 According to Howard-Jones, This convention was the first tangible fruit of seven international conferences spanning 41 years. The seventh conference, of which this convention was the outcome, was only concerned with cholera and, more specifically, with the sanitary control of westbound shipping traversing the Suez Canal, most of which was British. Continental European countries were deeply concerned that the ' canal might be a conduit for the importation of cholera from India to Europe. History has proved these fears to be entirely groundless....32 In 1897, the tenth International Sanitary Conference, held in Venice with a specific mandate, adopted preventive measures dealing with plague. Howard-Jones noted that the 1897 conference set a precedent chiefly because it dealt exclusively with plague. Most of the nine preceding sanitary conferences wasted an enormous amount of time 2 8 Paris in 1851, Paris in 1859, Constantinople in 1866, Vienna in 1874, Washington in 1881, Rome in 1885, Venice in 1892, Dresden in 1893, Paris in 1894, and Venice in 1897. 29 See Fidler, supra note 18 at 24. 30 ibid. 31 ibid. 3 2 Ho ward-Jones, supra note 20 at 65. 90 discussing multilateral approaches to cholera. The mode of transmission of cholera and whether it was indeed a suitable subject for international consideration sharply divided delegates. For many years, there was no consensus on the etiology and mode of transmission of cholera until the ninth sanitary conference in 1894. The breakthrough on the etiology of cholera enabled countries to shift their attention from cholera to other diseases. At the 1897 sanitary conference on plague, Great Britain was criticised because of a spread of a serious and persistent epidemic of plague from Bombay to the north-west littoral of India. Austria-Hungary proposed the 1897 conference because it feared its Muslim subjects from the Mecca Pilgrimage might bring plague with them after being in contact with pilgrims from India.3 5 The 1897 conference led to an International Sanitary Convention dealing solely and exclusively with plague and signed by all the participating twenty sovereign powers except Denmark, Sweden/Norway, and the USA. In 1903, both the 1892 and 1897 International Sanitary Conventions - dealing with cholera and plague respectively - were consolidated and replaced by a new convention. As the European states approached the end of the 'long nineteenth century' with intensive public health diplomacy, international conventions-treaties alone were neither capable of providing either the 'magic bullet' against mutual vulnerability or the 'end of history' of the infectious disease menace. The development of international regimes to govern transboundary disease surveillance coincided with the need to establish multilateral institutions to enforce the emergent regimes. The dawn of the twentieth century witnessed a more global spread of multilateral initiatives outside Europe. In 1902 35 ibid, ibid. 91 an International Conference of American States, held in Washington DC, established the first multilateral public health institution - the International Sanitary Bureau. 3 6 In 1907, the bulk of the European States that negotiated the nineteenth century international sanitary conventions met in Rome and adopted an agreement establishing the Office International d'Hygiene Publique (OHIP) - International Bureau of Public Health - with a permanent secretariat in Paris. The inter-war years - traversing World Wars I and II -witnessed institutional deficiencies and rivalries in enforcing international health regimes. The Health Organization of the League of Nations (HOLN) in Geneva, the Pan-American Sanitary Bureau in Washington DC, and the Office International d'Hygiene Publique (OHIP) in Paris, existed independent and autonomous of each other, and each enforced sanitary or health conventions and treaties within their respective areas of competence.37 Siddiqi observed that between 1920 and 1936, the OIHP rejected four proposals: from the League of Nations to rationalize international activities, to eradicate any overlap in functions and to establish a single international health organization.38 These international health institutions continued to operate independently of each other until the formation of the World Health Organisation in 1948 when OIHP was subsumed within the WHO, the Health Organization of the League of Nations (HOLN) having died with the League of Nations at the outset of World War II. Notwithstanding the setbacks suffered by these The International Sanitary Bureau is the precursor of the Pan-American Sanitary Bureau and the present Pan-American Health Organisation (PAHO). 3 7 According to Fidler, supra note 18 at 24 the intensity of effort continued in the twentieth century as the predominantly European efforts of the later half of the nineteenth century were joined by the diplomatic activity in the Americas to control infectious diseases. 38 See Siddiqi, supra note 24 at 20 stating that the reason for OIHP's intransigence is unclear even to leading scholars in the field like Norman Howard-Jones who observed in International Public Health Between the Two World Wars: The Organizational Problems (Geneva: WHO, 1978) 73 that there was a remarkable overlap in the membership of the OIHP (based in Paris) and the Health Oragnization of the League of Nations (HOLN) (based in Geneva), and so it was strange why a majority of member states in each organization were making proposals in Geneva that they themselves would later reject in Paris. 92 institutions and the decades it took to conclude the earliest international sanitary conventions, these efforts established one undeniable fact: that multilateral co-operation was a useful tool against mutual vulnerability to microbial threats. In Fidler's words, the creation of the Pan American Sanitary Bureau (PASB) in 1902, the Office International d'Hygiene Publique (OHIP) in 1907, the Health Organization of the League of Nations (HOLN) in 1923, and the Office International des Epizooties (OIE) in 1924, put international co-operation on public health into institutional forms that facilitated greater inter-governmental collaboration than could be achieved through ad hoc conferences. A sign of this greater potential for co-operation is the expansion of PASB, OIHP, and H O L N into areas of public health not previously a topic of inter-governmental collaboration, such as expanding the number of infectious diseases subject to international co-operation, working on chronic diseases such as cancer, or studying nutrition.39 Another major achievement of the multilateral approaches to the cross-border spread of epidemics at this period was the use of sanitary treaties and multilateral institutional mechanisms to create an international surveillance system, and to share epidemiological information. For instance, the 1903 International Sanitary Convention that consolidated notification duties of the 1893 and 1897 treaties required contracting parties to notify the other parties of the appearance of authentic cases of plague and yellow fever in their territories.40 In fact the benefit of sharing epidemiological information with the corresponding obligation on states to notify of outbreaks in their territories was clearly within the scope of many of the sanitary conventions and also within the mandate of emergent multilateral health institutions. As observed by Fidler, the treaty establishing 3 y Fidler, supra note 18 at 24. 4 0 Within the Americas, the 1905 Inter-American Sanitary Convention imposed notification duties for cases of cholera, plague, and yellow fever. In 1924 the Pan-American Sanitary Code provided for bi-weekly notification of ten specific diseases and such other diseases as the Pan-American Sanitary Bureau might add, and also for immediate notification of "plague, cholera, yellow fever, smallpox, typhus, or any other dangerous contagion liable to spread through...international commerce". See Articles 3-4 Pan American Sanitary Code 1924. 93 the International Office of Epizooties (OLE) required contracting parties to notify it of certain infectious diseases of animals either in connection with first cases or at regular intervals.41 Because a functional international surveillance system was tied to the mandate of these international institutions, the Pan-American Sanitary Bureau was a core aspect of the Pan-American surveillance system. The International Office of Public Health (OIHP) played an important surveillance role after it was created in 1907. Surveillance was also part of the work and mandate of the Health Organisation of the League of Nations (HOLN). 4 2 The precedent set by nineteenth century infectious disease diplomacy on mutual vulnerability - albeit hardly infallible - applies to contemporary multilateralism with respect to the mandate of the WHO and cross-border spread/threats of emerging and re-emerging infectious diseases. D : M U T U A L V U L N E R A B I L I T Y A N D C O N T E M P O R A R Y P U B L I C H E A L T H M U L T I L A T E R A L I S M It is difficult to articulate the complexities of the multiple dimensions of mutual vulnerability in contemporary public health multilateral co-operation which covers the decades from the formation of the World Health Organisation in 1948 to the present day. One useful way to explore mutual vulnerability in the contemporary era traversing the past fifty-two years would necessarily proceed from the present crisis of emerging and re-emerging infectious diseases (EIDs). 4 3 Nonetheless, there is also a need to focus 41 ibid. 42 ibid. 4 3 For a definition of emerging and re-emerging infectious diseases by WHO and CDC, see CDC, Addressing Emerging Infectious Disease Threats, supra note 1; WHO, World Health Report 1996. supra note 1. 94 discussion with particular reference to the sudden re-emergence of diseases like tuberculosis and malaria in Europe and North America. In 1995, the United States government inter-agency Working Group on Emerging and Re-emerging Infectious Diseases (known as CISET Working Group) listed twenty-nine examples of new infectious diseases identified since 1973.4 4 The second category of EEDs includes diseases that have in the last twenty years re-emerged as public health problems. The CISET Working Group categorised re-emerging infectious diseases into three groups: (i) infectious diseases that have flared up in regions in which they historically appeared; (ii) infectious diseases that have expanded into new regions; and (iii) infectious diseases that have developed resistance to anti-microbial treatments and have spread through traditional and/or new regions because of such resistance45 Tuberculosis is one disease that falls into each of the three categories of re-emerging infectious diseases. It is an old disease that has re-emerged as a major health problem in. regions where it historically occurred, it has returned as a problem in both: the South and the North, and certain strains of tuberculosis have developed strong resistance to antibiotics and other pharmaceutical treatments.46 WHO blames the crisis of re-emerging See National Science and Technology Council Committee on International Science, Engineering, and Technology Working Group on Emerging and Re-Emerging Infectious Diseases, Infectious Diseases: A Global Health Threat (1995) 14 (hereafter CISET Report). Some of the diseases in the list published by CISET includes Ebola hemorrhagic fever (1977), Legionnaire's disease (1977), toxic shock syndrome (1981), lyme disease (1982), acquired immunodeficiency syndrome (AIDS) (1983), and Brazilian hemorrhagic fever (1984). The CISET Report was adapted by the World Health Organization in The World Health Report 1996: Fighting Disease, Fostering Development, supra note 1 at 112. For a discussion of the CISET report from an international legal perspective, see David Fidler, "Return of the Fourth Horseman: Emerging Infectious Diseases and International Law", supra note 3. 45 See CISET Report ibid identifying about twenty re-emerging infections including rabies, dengue and dengue hemorrhagic fever, yellow fever, malaria, plague, schistosomiasis, diphtheria, tuberculosis and cholera. 4 6 Fidler, supra note 3 at 779-780. 95 EIDs on what it calls "fatal complacency".47 The discovery of antibiotics, the feat of world-wide eradication of smallpox, and the progress made in rolling back the morbidity and mortality of poliomyelitis, leprosy, measles, guinea-worm, and neo-natal tetanus slowed down global health work with the optimism that the battle between humanity and the microbial world was being won by humans. This cautious optimism, argues WHO, has turned into a fatal complacency that is costing millions of lives annually.48 Consequently, diseases that used to be restricted geographically are now striking in regions once thought to be safe. Malaria and tuberculosis, for instance, are fighting back with renewed ferocity. Many of the most powerful antibiotics have been rendered impotent. In the contest for supremacy, observed the WHO, "the microbes are sprinting ahead. The gap between their ability to mutate into drug-resistant strains and!man's ability to counter them is widening fast".49 To understand the crisis of EIDs in the context of mutual vulnerability, it is important to focus discussion particularly on tuberculosis and malaria,5 0 and then argue that factors that propel EIDs (including globalization of trade and commerce) have rendered the distinction between national and international health obsolete. See WHO, supra note 1 at 1. 48 ibid. 49ibid. 5 0 I focus on tuberculosis and malaria not because they are the most important or unique among the emerging and re-emerging infectious diseases listed in the CISET Report, but simply because it is impossible to discuss in detail all the new and old diseases that are emerging and re-emerging across national boundaries. Tuberculosis and malaria are used here simply as examples to rethink the dynamics of mutual vulnerability. 96 (I) THE RE-EMERGENCE OF TUBERCULOSIS AS A THREAT IN THE GLOBAL NORTH Tuberculosis is a contagious disease that spreads through the air. There are many types of tuberculosis, but only people who have pulmonary tuberculosis are infectious. When an infected person coughs, sneezes, talks or spits, he propels TB germs - bacilli -into the air. A n inhalation of a small number of bacilli germs leads to an infection. The WHO estimates that tuberculosis kills 2 million people annually.51 It is further estimated that between 2000 and 2020, nearly one billion will be newly infected, 200 million people will get sick, and 35 million will die from TB - i f control is not strengthened.52 The WHO estimates that the majority of TB sufferers live in the developing world, particularly in South-East Asia, Western Pacific and Africa. 5 3 A disturbing phenomenon is the fact the TB has formed a lethal partnership with HIV/AIDS. 5 4 According to WHO, the AIDS virus damages the body's natural defences -the immune system - and accelerates the speed at which tuberculosis progresses from a harmless infection to a life threatening condition. TB is already the opportunistic infection that most frequently kills HIV-positive people. Of an estimated 1 million HIV-related deaths in 1995, about one-third might have been due to tuberculosis. While only 9% of the total of 3 million tuberculosis deaths in 1995 were related to AIDS, the 5 1 WHO, supra note 1 at 26-27. 52 See "Tuberculosis", WHO Fact Sheet No. 104 (Revised April 2000), also available on the online at: http://www.who.int/inf-fs/facl04.htrnl (visited 28 July 2000). 5 3 World Health Report 1996. supra note 1 at 27. 54 See L.O Gostin, "The Resurgent TB Epidemic in the Era of AIDS: Reflections on Public Health, Law and Society" (1995) 54 Maryland Law Review 1. 97 percentage is expected to reach 17% in 2000. A second disturbing phenomenon about the global TB crisis is the emergence of strains of TB that are resistant to available drugs. The WHO defines "drug-resistant tuberculosis" as a case of tuberculosis (usually pulmonary) excreting bacilli resistant to one or more anti-tuberculosis drugs.56 If properly treated, the WHO believes that tuberculosis is curable in virtually all cases, provided it is not caused by bacteria resistant to a range of drugs.57 Incomplete or inappropriate treatment has spawned the development of strains that are resistant to drugs. If untreated, the disease is fatal in half the cases. Non-vaccinated babies are most vulnerable to developing the severest forms after becoming infected.58 Of relevance to mutual vulnerability in contemporary multilateral health co-operation is the fact that morbidity and mortality of tuberculosis in Europe andi North America in the decades of the 1950s to 1970s were very low as TB was close to complete elimination as a public health threat. Today it has re-emerged with brutal force in these substantially industrialised continents as a major public health problem. Quoting from the 104th Congressional Hearings on Emerging Infections, Fidler observed that in the 1980s and 1990s, New York City public health officials waged a battle to contain a reappearance of T B . 5 9 Immigration of tuberculin-infected persons from developing World Health Report 1996. supra note 1 at 27. For the linkage of Tuberculosis and HIV-AIDS, see W H O / U N Aids Programme, A Deadly Partnership: Tuberculosis in the Era of HIV (Geneva: W H O & UNAIDS, 1996) 56 See World Health Organization, Guidelines for the Management of Drug-Resistant Tuberculosis (Geneva: WHO, 1998) 7. 5 7 World Health Report 1996. supra note 1 at 28. The W H O recommends the Directly Observed Treatment Short-Course (DOTS) - an inexpensive strategy, which involves detection of TB cases through low-cost sputum smear tests followed by 6-8 months of treatment with a combination of inexpensive drugs. 58 ibid. 5 9 Fidler, supra note 3 at 780-781 quoting a statement of Dr. Margaret H . Hamburg, Health Commissioner of New York City in "Emerging Infections: A Significant Threat to the Nation's Health: Hearings Before the Senate Cornmittee on Labor and Human Resources" (104 t h US Congress, 1995). 98 countries to New York City has been widely cited as a leading cause of the re-emergence of TB in New York. This makes TB an infectious disease that has expanded from places where the disease is fairly common to a new environment relatively free from the disease.60 The WHO has reported that TB outbreaks have been increasing in the United States from the mid-1980s. TB had declined in the US from 84, 300 cases in 1953 to 22, 200 in 1984. But from 1985 to 1993 the number of cases increased by fourteen percent. Of the 25, 300 cases reported in 1993, seventy-three percent were among racial and ethnic minorities. Recent outbreaks in the United States have included several of the multidrug-resistant forms in hospitals and prisons with mortality of up to seventy percent.61 In Canada, although the overall infection ratio is low, the spread of m u l t i d r u g s resistant strains of tuberculosis is also on the rise. The threat is becoming- apparent in the culturally diverse city of Toronto, where about three percent of TB cases are multidrug-resistant.62 Dr Richard Bedell, a Vancouver doctor, has offered persuasive reasons why the global TB threat is indeed a Canadian problem. From the perspective of mutual vulnerability, he argues thus, Fidler, ibid. See also A.S Fauci, "Tuberculosis Morbidity: United States" (1995) Journal of American Medical Association 788. 6 1 World Health Report 1996. supra note 1 at 28. 62 See Helen Branswell, "Drug-resistant Strains of TB Global Threat, W H O Warns" in The Recorder & Times (Brockville. Ontario: 24 March 2000) quoting Dr. Howard Njoo, Director for tuberculosis-prevention and control at Health Canada's Laboratory Centre for Disease and Control. Dr. Njoo, inter alia, was quoted as arguing that "TB bacilli don't respect borders", and that Canada is not immune. It's spreading round the world and certainly Canada is impacted by that. 99 I can think of three levels on which people might take an interest in tuberculosis. The first is self-interest: Can it affect me or my loved ones? The second is obligation: What ought we do as a country? The third I call the 'will for supererogation': What is good to do even i f we are not obligated to do it? I want to address the failures to interest the world (including Canadians) on these levels. Canada is a diverse society and many Canadians come from countries with a high prevalence of TB. As well, Canadians travel extensively for business and tourism, often visiting countries with high TB rates. . . .You have only to share the same air in a room, a bus or an aircraft with someone who has infectious TB to have some risk of infection.63 In Europe the morbidity and mortality rates of TB have also increased astronomically in the past two decades. In Denmark and Germany for instance, the percentage of TB patients resistant to a single drug rose by fifty percent in 1996.64 New outbreaks of TB have occurred in Eastern Europe after about forty years of steady decline in TB mortality. (II) 'IMPORTED' AND 'AIRPORT' MALARIA IN EUROPE AND NORTH AMERICA Malaria is endemic in ninety-one countries, mainly in Africa, where it is one of the biggest contributors to the burdens of disease. The WHO estimates that annually there are 300-500 million clinical cases of malaria, and between 1.5 million and 2.7 million deaths.65 Malaria's capacity to undermine the ability of infected people to work links it to poverty and socio-economic development. Malaria is caused by species of parasites belonging to the genus Plasmodium. It is transmitted by a bite of an infected female Richard Bedell, "Tuberculosis is a Canadian Problem" The Globe and Mail (Toronto: Tuesday March 21 2000). On TB and the risk of infection through air travel generally, see World Health Organization, Tuberculosis and Air Travel: Guidelines for Prevention and Control (Geneva: WHO, 1998). 64 See "Drug-Resistant Tuberculosis is Rising in Areas Once Deemed Under Control" The Wall Street Journal (Washington, DC: Friday 24 March, 2000). 6 5 World Health Report 1996. supra note 1 at 47. 100 mosquito of the genus anopheles. Early symptoms include fever, shivering, aches and pains in the joints and headache.66 In falciparum malaria, infected red cells can obstruct the blood vessels of the brain, causing cerebral malaria, which is often lethal. Other vital organs can also be damaged with fatal consequences.67 Malaria has been eradicated in the entire industrialised world. The failure of the World Health Organization's efforts to globally eradicate malaria in the 1970s, and the present endemicity of the disease in the global South (mainly in Africa), has given the mistaken but fatal impression that malaria is simply an African problem. J Cases of "imported malaria" and so called "airport malaria"6 8 have increased in Europe and North America and other regions of the world where the burden of malaria has been historically low. The differences between the South and the-North .on the . burdens of malaria are still vast, with an overwhelming majority of malaria morbidity and mortality occurring in Africa. Nonetheless 'airport malaria' can no longer be neglected as infectious agents ignore national borders and increasingly find their way to Europe.6 9According to the WHO, there have been reports of a surprising number of malaria deaths in northern countries following unrecognized infection through a blood ibid. See also, WHO, Severe Falciparum Malaria: Transactions of the Royal Society of Tropical Medicine and Hygiene Volume 94 Supplement 4 (Geneva: WHO, 2000) stating inter alia that "any. patient with malaria who is unable to swallow tablets, has any evidence of vital organ dysfunction, or, a high parasite count is at increased risk of dying. The exact risk depends on the degree of abnormality, age, background immunity, and access to appropriate treatment". 6 8 For a distinction between "imported malaria" and "airport malaria", See N.G Gratz, et al, "Why Aircraft Disinsection?" (2000) 78 The International Journal of Public Health 995 stating that "the most direct evidence of transmission of disease by mosquitoes imported on aircraft is the occurrence of airport malaria, i.e. cases of malaria in and near international airports, among persons who have not recently travelled to areas where the disease is endemic or who have not recently received blood transfusions. Airport malaria should be distinguished from imported malaria among persons who contract the infection during a stay in an area of endemicity and subsequently fall i l l " . 6 9 G. Capdevila, "Malaria-Carrying Mosquitoes Hitch Rides on Air Planes" Inter Press Service Tuesday 22 August 2000. 101 transfusion or a one-off mosquito bite near an international airport. Brussels, Geneva, and Oslo have all had recent cases of airport malaria.7 0 Cases of airport malaria in Europe that mostly occur in the absence of anamnestic signs of any exposure to the malaria risk are often difficult to diagnose. From 1969-1999 confirmed cases of airport malaria have been reported in France, Belgium, Switzerland, United Kingdom, Italy, USA, Luxembourg, Germany, The Netherlands, Spain, Israel, and Australia.7 2 Cases of imported malaria have also spread from endemic areas to non-endemic regions due to the increase in global travel, tourism and human migration. Epidemiological data in Europe suggest that 1,010 cases were imported into the countries of the European Union in 1971; 2, 882 in 1981; about 9, 200 cases in 1991, and 12, 328 cases in 1997.73 In 1993, some thirty years after the eradication of malaria in the former USSR, some 1, 000 cases of malaria were registered in the Russian Federation and in the newly independent states: Belarus, Kazakhstan, Ukraine, Azerbaijan, Tajikistan; Turkmenistan, and Uzbekistan.7 4 In the United Kingdom, a total of 8, 353 cases of imported malaria were reported between 1987 and 1992. A breakdown of this figure shows that U K nationals who visited their friends and relations in malaria endemic regions accounted for forty-nine percent of the cases, visitors to the U K accounted for WHO, Removing Obstacles to Healthy Development: WHO Report on Infectious Diseases (Geneva: WHO, 1999) 50. 7 1 WHO Regional Office for Europe, Strategy to Roll Back Malaria in the WHO European Region (Copenhagen, Denmark: WHO, Europe, 1999) 6. N . Gratz, et al, supra note 68 at 998 argue that airport malaria is particularly dangerous in that physicians generally have little reason to suspect it. This is especially true if there has been no recent travel to areas where malaria is endemic. 72 See Gratz, ibid, for a detailed discussion of individual cases of airport malaria in Europe as well as useful references and a review of public health literature that focuses on the problem. 7 3 WHO Regional Office for Europe, supra note 71 at 6. 102 nineteen percent, tourists accounted for sixteen percent, while immigrants and expatriates accounted for eleven and five percent respectively.75 Although this thesis is focused on TB and airport malaria, mutual vulnerability is not limited to these two diseases. Between 1994 and 1999, the WHO identified about thirty-five unexpected outbreaks of emerging and re-emerging infectious diseases.76 Among these outbreaks is the appearance of West Nile Fever in New York City, which caught public health officials by surprise.77 These outbreaks, as well as the cross-border spread of TB and malaria through global travel, trade, and trans-border human migrations, syllogistically provide the premise for an irrefutable conclusion: the distinction between national and international public health threats has become obsolete and anachronistic in an interdependent world. Malaria, TB and indeed a majority of the emerging and re-emerging diseases may have heavier burdens in the global South, but they are no longer the exclusive problems of the South. \> E: THE OBSOLESCENCE OF THE DISTINCTION BETWEEN NATIONAL AND INTERNATIONAL HEALTH IN A GLOBALISING WORLD There is unanimity among scholars of public health, policy-makers, and multilateral institutions that the reasons for outbreaks of new diseases and the re-emergence of old ones thought to be under control are varied and complex. The US Centers for Disease Control and Prevention (CDC) identified eight demographic and environmental conditions that favour the spread of infectious diseases. These include (i) 7 5 WHO, Removing Obstacles to Healthy Development, supra note 70 at 52 using data from Behrens, Travel Morbidity in Ethnic Minority Travellers. 16ibid. 77 See "Outbreak Not Contained: West Nile Virus Triggers a Re-evaluation of Public Health Surveillance", Scientific American April 2000 p20. 103 global travel (ii) globalization of food supply and centralized processing of food (iii) population growth and increased urbanization and crowding (iv) population movements due to civil wars, famines, and other man-made or natural disasters (v) irrigation, deforestation, and reforestation projects that alter the habitats of disease-carrying insects and animals (vi) human behaviors, such as intravenous drug use and risky sexual behavior (vii) increased use of antimicrobial agents and pesticides, hastening the development of resistance, and (viii) increased human contact with tropical rain forests and other wilderness habitats that are reservoirs for insects and animals that; harbor 78 unknown infectious agents. These eight factors are similar to the ones that have featured prominently in the epidemiological literature.79 One obvious consequence of these factors, as the WHO noted, is the fact that "national health has become an international challenge. An outbreak anywhere must now be seen as a threat to virtually all countries, especially those that serve as major hubs of international travel".8 0 • Travel, as we have seen from Thucydides account of the Athenian Plague in 430BC, and from the European conquest of the Americas, is not a recent factor in transnational spread of disease. In the Middle Ages, rats infested by plagues were shipped from one continent to another on board ships. Before the discovery of aircraft, the volume of travel and migration across national boundaries increased so much that quarantine The US Centers for Disease Control and Prevention (CDC), Preventing Emerging Infectious Diseases: A Strategy for the 21s' Century (Atlanta, Georgia, 1998) 3. Since I have dealt with the twin issues of poverty and underdevelopment in the preceding Chapter, the focus of my analysis of these factors in the present Chapter lies with global travel. 7 9 Lifson identified eight similar factors that contribute to the spread of dengue across the world. These include: international travel, urbanization, population growth, crowding, poverty, inadequate sanitation facilities, weak public health infrastructure, and lack of sustained support for disease-control measures. See Alan Lifson, "Mosquitoes, Models, and Dengue" (1996) 347 Lancet 1201. 8 0 WHO, World Health Report 1996, supra note 1 at 17. 104 81 practices became ineffective. However, the discovery of air traffic has witnessed a surge in global travel with a propensity for disease spread that is unparalleled in human history. Back in 1993, it is estimated that 500 million persons crossed international borders on board aircraft. Today, this number has soared to 1.4 billion persons. The opportunities for travel to spread disease have likewise increased. Travel has contributed to the cross-border spread of malaria, yellow fever, plague, cholera, tuberculosis, influenza, HIV/AIDS, Lassa fever, smallpox, hantaviruses, gonorrhea, syphilis, and many other diseases. Fidler observes that the potential for global pandemics fuelled by the ease of travel is illustrated by the AIDS virus. The opportunities offered a virulent airborne pathogen by air travel are perhaps even more frightening.84 The implication of transboundary spread of disease by air travel and other factors that propel EIDs is that public health has become globalized. Transboundary disease spread now constitutes a global crisis, which requires the pooling of efforts and resources by nation-states in a multilateral context. In no other sphere of global relations: is the global village metaphor more practical than contemporary 'public health diplomacy' with its twin offshoots: the permeation of national boundaries by disease pathogens and the consequent vulnerability of populations within those boundaries to microbial threats. The contemporary crisis of ELDs offers incontrovertible proof that the distinction often drawn between national and international health has in fact become anachronistic. Malaria, 1 D. Fidler, supra note 3 at 965. ibid quoting Laurie Garret, "The Return of Infectious Disease" (Jan-Feb. 1996) Foreign Affairs 66 who noted the 1918-1919 global influenza pandemic that killed 22 million people and queries thus "how many more victims could a similarly lethal strain of influenza claim in 1996, when some half a billion passengers will board airline flights?" 105 dengue, yellow fever, HIV/AIDS, plague and indeed any disease in any part of the world today must be seen as global problems. This vision is nothing new; it is self-interest. F: SUMMARY OF THE ARGUMENTS: SELF INTEREST RE-VISITED This Chapter argued that the interaction between humanity and disease pathogens is as ancient as human history itself. The evolution of modern nation-states, and the consequent institution of strict isolationist and protectionist domestic policies, neither diminished the potency of microbial pathogens nor the degree of vulnerability of populations to disease. From the Treaty of Westphalia, 1648 to nineteenth century public health diplomacy, down to the present day, neither diseases nor pathogenic microbes have shown any respect for political and geographical lines drawn on a map. Many diseases originally endemic in certain regions of the world have re-emerged in other regions due to a host of factors. Given that all of humanity is now mutually vulnerable to cross-border threats of disease, does it make sense to maintain a distinction between diseases of the South and those of the North? Or as queried by two scholars, why should powerful countries such as the United States look beyond their own narrow self-interests with regard to transnational public health policy? The widely cited report of the US Institute of Medicine, America's Vital Interest in Global Health,8 6 provides some answers founded on self-interest: the direct interests of the American people are served when the United States promotes world health. In partnership with other countries and multilateral institutions, the United States can become a leader in global health, especially in the areas 8 5 D. Yach & D. Bettcher, "The Globalization of Public Health, II: The Convergence of Self-interest and Altruism" (1998) 88 American Journal of Public Health 738. 8 6 Institute of Medicine, America's Vital Interest in Global Health: Protecting Our People, Enhancing Our Economy, and Advancing Our International Interests (Washington, DC: National Academy Press, 1994). 106 of research and development, surveillance, education, co-ordination, and training.87 Placing the vision of self-interest squarely within world health, mutual vulnerability is antithetical to either isolationism or protectionism. The 'us' and 'them', 'our disease' and 'their disease' distinctions, have become anachronistic. A l l of humanity is now an • 88 inseparable part of a shared global compact. "Our common health future" depends on "innovative, intersectoral interventions, involving a high degree of international co-operation and political wil l" . Neither parochial foreign policy objectives anchored on isolationism and protectionism, nor endless rhetoric in the face of glaring global health dangers, can salvage our global neighbourhood from the 'coming plague'. The next chapter discusses the gaps in multilateral health diplomacy and co-operation, shortcomings of multilateral health institutions, and the foreseeable critical role international law must play to re-mould the emergent social fabric of multilateral health challenges. 87 ibid. 8 81 borrowed this expression from D. Yach & D. Bettcher, supra note 85 at 738. 8 9 H. Nakajima, "Global Disease Threats and Foreign Policy", supra note 2 at 330. 107 CHAPTER FOUR VULNERABILITY OF MULTILATERALISM AND GLOBALISATION OF PUBLIC H E A L T H IN THE GLOBAL NEIGHBORHOOD A: OVERVIEW OF THE ARGUMENT Multilateralism is vulnerable to what nation-states perceive as favouring their strategic interests. The broad range of issues encompassed within, and the wide terrain covered by, what constitutes strategic interests according to the subjective judgement of each country inevitably politicises multilateralism. 'Politicisation', in turn, produces visible gaps and adverse impacts that destabilise multilateral initiatives. Crisis in multilateralism is not a new phenomenon. Siddiqi observed that strains arise for a number of reasons, including disagreements over political issues, philosophical approaches, and more mundane issues such as proper ways to administer, staff, finance and prioritize programs and policies within multilateral organisations.1 Public health multilateralism is no exception. It is not insulated from politicisation and other age-long destabilising vicissitudes of multilateral co-operation. Like multilateral initiatives to forge consensus on other global issues - ozone depletion, climate change, biodiversity conservation, and food security - public health multilateralism is subject to the vagaries and vulnerabilities of politics as well as other difficult challenges of forging a common agenda on multilateral health protection and promotion. But, because the bulk of literature and policy-work on global health challenges emanates substantially from the disciplines of 1 World Health and World Politics: The World Health Organization and the U N System (London: Hurst & Co., 1995) 2. 108 epidemiology and public health, international legal scholars have not fully explored the dimensions of these vulnerabilities exhaustively. Focusing on infectious diseases and international relations, Fidler coined the term microbialpolitik to describe the international politics produced as states attempt to deal with pathogenic microbes multilaterally. In this sense, microbialpolitik points to the ordinary dynamics of international relations mixed with the special dynamics produced by the nature of the microbial world.2 Although microbialpolitik is within the parameters of what I contemplate as 'vulnerabilities of public health multilateralism' in this chapter, politics nonetheless is just one limb of this dynamic. This chapter argues that since the first International Sanitary Conference in 1851, multilateral health diplomacy has grappled with complex regime deficits - confusion and ignorance of etiologies of certain diseases as well as gross under-utilisation of legal, normative and regulatory approaches to cross-border spread of disease. There is also a glaring institutional incapacity for the enforcement of the extant, but skeletal legal/regulatory regime, and an acrimonious South-North engagement in the proceedings of multilateral health institutions. For purposes of coherence and clarity, this chapter discusses the dynamics of these vulnerabilities in two broad categories. First, I discuss the impact of 'politicisation' on early multilateral health initiatives traversing the entire second half of the nineteenth-century until the formation of the World Health Organization in 1948, an era marked by intensive infectious disease-public health diplomacy. Second, I discuss the shortcomings of contemporary public health multilateralism covering the post-1948 years since the formation of the WHO. 2 David P. Fidler, "Microbialpolitik: Infectious Diseases and International Relations" (1998) 14 American University International Law Rev. 5. 109 These two epochs present enormous but varied challenges for multilateral health initiatives. To articulate these varied challenges, I focus discussion particularly on: (i) colonial and post-colonial implications of nineteenth-century multilateral health order, (ii) the impact of trade and economic interests of leading European states during the evolution of public health multilateralism and how these interests affected cross-border regulation and multilateral governance of diseases and related public health risks, (iii) the relevance of international law in contemporary multilateral health governance, and, (iv) selected South-North issues at the World Health Assembly, the supreme policy making organ of the World Health Organisation. The assertion that " i f in the old colonial days, it was true that trade follows the flag; it was equally true that the first faltering steps towards international health co-operation followed trade"3 - underscores the enormous challenges that economic-interests of countries continue to pose for multilateral health governance from 1851 to the present day. What is the relevance of exploring the shortcomings of multilateral public health co-operation since 1851? It paves the way for innovations to emerge. This chapter does not discuss innovations per se; nonetheless its discussion of multilateralism sets the stage for innovative approaches to global health governance that I articulate in subsequent chapters. 3 Norman Howard-Jones, The Scientific Background of the International Sanitary Conferences 1851-1938 (Geneva: WHO, 1975) 12. 110 B: NINETEENTH-CENTURY INFECTIOUS DISEASE DIPLOMACY: THE POLITICS OF LAW AND PUBLIC H E A L T H AMONG SOVEREIGN STATES A plethora of factors exerted a marked influence on nineteenth-century public health co-operation. Chief among these factors were the lack of infallible scientific proof of the etiology of diseases that were to be regulated by International Sanitary Conventions, and the maritime/commercial interests of leading shipping countries at the time. These two factors - in many ways - adversely affected the process and task of getting sovereign states to agree on the text of a treaty that was, inter alia, to regulate the cross-border spread of diseases via the harmonization of national quarantines that were hurting trade and travel across Europe. Howard-Jones observed that in convening the first International Conference in 1851, the French Government was inspired by the eminently reasonable desire that international agreement should be reached on the standardisation of quarantine regulations aimed at preventing the importation of cholera, plague and yellow fever. Smallpox was then such a universal disease that it was not to be brought within the scope of international sanitary legislation until seventy-six years later.4 Lofty and admirable as the French initiative may have been, it was not surprising that "its outcome was compromised by inherent and insuperable difficulties; the delegates, whether physicians or diplomats, were equally innocent of any knowledge of the etiology or mode of transmission of the diseases under discussion".5 The majority view at the conference was that plague and yellow fever were in some ways communicable from the sick to the healthy, but it was otherwise with cholera. G . M Menis, the Austrian medical delegate to 4 ibid. 5 ibid. Ill the conference declared that he was under instructions from his government to discuss only plague and yellow fever. Austria, according to him, had tried quarantine measures against cholera which far from opposing the ravages of the disease, only made it more frightening and fatal. According to Menis, it was the opinion of the most eminent physicians of the Austrian Empire that cholera was "a purely epidemic disease".6 This view received support from J. Sutherland, the British Medical delegate who argued similarly that in England cholera was believed to be "purely epidemic", and therefore quarantine measures had no efficacy against it. 7 Ignorance of the etiology of cholera, which polarised delegates at the 1851 conference, re-invented the age-long rivalry and raging debate between the public health theories of "miasmism"8 and "contagionism"9 as modes of transmission of disease. The divergent views expressed by delegates deeply > interlocked with the overall commercial interests of participating countries. Thus,it was in the interest of Great Britain as a leading maritime power at that time to follow 'miasmism' school of thought and argue that either quarantine or any other international regulatory regime was meaningless against cholera because it was not a contagious disease. This view was supported by France, which also derived enormous shipping benefits from the Suez Canal then under its jurisdiction and control. Quarantine, whether at the national or international level was going to hurt their shipping interests. Little wonder then that the 1851 International Sanitary Conference achieved absolutely nothing 6 For a discussion of the submission of Menis, see N . Howard-Jones, ibid at 12. 7 For a discussion of the submission of Sutherland, see N . Ho ward-Jones, ibid at 12. 8 Miasmists argued that diseases were caused locally by filth and foul air. This is the traditional Hippocratic view. See J. Longrigg, "Epidemic, Ideas and Classical Athenian Society", in Epidemics and Ideas: Essays on the Historical Perception of Pestilence, T. Ranger & P. Slack, eds., (Cambridge: Cambridge University Press, 1992) 36. 9 Contagion theorists argued that diseases were transmitted directly from an infected person to a healthy person. See Brain Pullan, "Plague and Perceptions of the Poor in Early Modem Italy", in T. Ranger & P. Slack, ibid at 101. 112 simply because the participating countries could not strike a balance between public health and their shipping/commercial interests. Both the draft International Sanitary Convention and the International Sanitary Regulations annexed thereto were never ratified by any of the eleven countries. As put by Howard-Jones, From the point of view of practical results, the first International Sanitary Conference was a fiasco. Everyone went on doing in their own what they had done before. Yet there was more to it than that. The fact that the conference took place established the principle that health protection was a proper subject for international consultations even though international health co-operation was for many years to be limited to defensive quarantine measures. The French Government of the time had planted a seed that was not to germinate for some forty years and then, after a complicated cycle of development, to blossom more than a half century later into the World Health Organization.10 The destabilising impact of commercial and other interests of countries on multilateral health co-operation and governance did not end with the 1851 conference. It was a phenomenon that was ever present in subsequent sanitary conferences in the nineteenth century even after substantial scientific progress had been made to prove the etiology of cholera by pioneer epidemiologists: John Snow, William Budd, Filippo Pacini, and Robert Koch. For instance, the sixth International Sanitary Conference held in Rome in 1885 and the seventh conference held in Venice in 1892 remarkably unveiled the commercial rivalry between Britain and France. France claimed that cholera was always imported to Europe from British India especially Bombay, and therefore proposed tougher sanitary measures onboard westward-bound ships from the Red Sea traversing the French controlled Suez Canal. Because four-fifths of all the ships passing through the supra note 3 at 16. See also J. Siddiqi, supra note 1 at 15 stating that "while the official objective of the first Conference was stated as the desire to regulate in a uniform way the quarantine and lazarettos in the Mediterranean, the national motives for participation were primarily political and commercial, with public 113 canal were British, and in 1884 seven hundred and seventy of those ships arrived at British ports from India, Britain threatened to divert all its ships away from the Suez Canal. Siddiqi observed that problems also occurred "when Persian and Turkish sensitivities were offended by the claim that cholera was endemic within their borders. They considered any call for tougher quarantines of ships leaving Persian and Turkish ports to be an infringement of their sovereignty".11 That these interests hampered early attempts at multilateral health governance is trite. In an era characterised by intensive public health diplomacy and series of sanitary conferences, Fidler aptly observed that "forty-one years and six European-led international conferences elapsed from the first... conference in 1851 until the first effective international convention saw the light of day in the 1892 International Sanitary 1 Convention. The Conventions negotiated in 1851, 1859, 1874, and 1884 never became • 12 effective". What is conspicuous in the dynamics of politics, law and public health vis-a-vis sovereignty and multilateral regulation of disease in the nineteenth century is the slow but inevitable process of forging a multilateral agenda on the cross-border spread of disease. The fact that countries navigated between the Scylla of commercial interests and the Charybdis of multilateral regulation of diseases by an international treaty paradoxically proved both intriguing and frustrating. This oscillation in the nineteenth century provides an opportunity to explore the failures, gaps and inadequacies of contemporary multilateral initiatives on public health. To facilitate a good understanding of the 'failures, gaps and inadequacies' of the contemporary era, however, nineteenth-health being merely an accidental issue. The primacy of concerns about shipping over those about public health was no secret...." 11 ibid. 1 2 David P. Fidler, International Law and Infectious Diseases (Oxford: Clarendon Press, 1999) 25. 114 century public health multilateralism must necessarily be scrutinised against the backdrop of colonial legacy and post-colonial discourse in international law. The reason for this is not far-fetched. It was the clear intent of the nineteenth-century sanitary conferences to use international legal governance mechanisms - conventions, treaties and regulations -in the battle against diseases and pathogenic microbes. These multilateral health governance mechanisms (conventions, treaties, and regulations) evolved at a time when the 'law of nations' was engaged in series of complex manoeuvres with colonialism and colonised people across the world. C: NINETEENTH-CENTURY PUBLIC H E A L T H MULTILATERALISM: ITS COLONIAL ORIGINS AND POST-COLONIAL UNDERPINNINGS. Multilateral health co-operation in the nineteenth century was founded on a state-centric model of internationalism which received its imprimatur from the Treaty of Westphalia 1648. The state-centric as well as the Euro-centric flavour of the Westphalian system has been the subject of intense scholarship. The Westphalian model notwithstanding, international legal historians and theorists trace the colonial origins of international law back to the fifteenth and sixteenth centuries, when Europe 'discovered' the "new world of the Americas":13 the intercourse between Spaniards and American Indians following the voyages of Columbus. Interestingly, the beginning of the Columbian era in the fifteenth century, as I argued already, remains central in global health discourse because it marked the 'microbial unification of the world' or what most 13 See for instance, David Kennedy, "Primitive Legal Scholarship" (1986) 27 Harvard International Law Journal 1; A. Rubin, "International Law in the Age of Columbus" (1992) 39 Netherlands International Law Review 5,; A. Anghie, "Francisco de Vitoria and the Colonial Origins of International Law" (1996) 5 Social & Legal Studies 321,; A. Nussbaum, A Concise History of the Law of Nations (New York: Macmillan, 1954). 115 medical historians call "the Columbian exchange".14 In post-colonial discourse, the fifteenth and sixteenth centuries are important because the interaction between the new and old worlds became the driving force behind the polarisation of the world between 'civilised' and 'uncivilised, 'primitive' and 'modern' people; a polarisation that received the tacit approval of leading international legal scholars at that time.1 5 International law maintained this questionable dichotomy during the Peace of Westphalia in 1648. At the dawn of the nineteenth century, the civilised-uncivilised construct was firmly entrenched in the vocabulary of international law in the relations between nations and peoples. The Westphalian model, inter alia, continues to raise colonial and post-colonial questions in ways that illuminate contemporary international law scholarship. The nineteenth century, within which ten international sanitary conferences were convened, was marked by complex manoeuvres within the law of nations. The law not only carried with it the baggage of a despicable distinction between the 'civilised and uncivilised'; 'primitive and modern', which it inherited from the fifteenth century; it was also confronted with the difficult questions of how to rationalise the European partition of Africa and the conquest of large parts of Asia, and the Pacific. As eloquently stated by one scholar, 14 See A.W Crosby, The Columbian Exchange: Biological and Cultural Consequences of 1492 (Westport, Connecticut: Greenwood Press, 1972). 15 See A. Anghie, supra note 13; A. Rubin, supra note 13 for a brilliant discussion of the interaction between the Spaniards and American Indians and how Francisco De Vitoria, a leading international legal scholar of the time rationalised that interaction legally. 116 Following the industrial revolution in Europe after the late eighteenth century, in the nineteenth century the international community to a large extent had virtually become a European one on the basis of either conquest or domination. By about 1880, Europeans had subdued most of the non-European states, which was interpreted in Europe as conclusive proof of the inherent superiority of the white man, and the international legal system became a white man's club, to which non-European states would be admitted only i f they produced evidence that they were civilised. 1 6 This view accords with the often-cited Mohammed Bedjaoui's categorisation of classic international law as a 'predatory economic order' obliged to assume the guise of oligarchic law governing the relations between civilised states, members of an exclusive 17 club. Classic international law "consisted of a set of rules with a geographical basis (it was a European law), a religious-ethical inspiration (it was a Christian law), an economic motivation (it was a mercantalist law), and political aims (it was an imperialist law). 1 8 Another feature of nineteenth-century international law was the triumph of positivism as the dominant analytical tool by lawyers.19 Thus, nineteenth-century positivist international law developed an elaborate vocabulary for denigrating (non-European)'uncivilised' peoples, presenting them as suitable subjects for conquest to further the "civilising mission". 2 0 The juxtaposition of this peculiar context of the nineteenth century with the desire of European states to regulate the cross-border spread of disease by a multilateral sanitary treaty (convention) raises series of questions: how international were the nineteenth 1 6 Peter Malanczuk, Akehurst's Modern Introduction to International Law 7 t h edition (London/New York: Routledge, 1997) 13. 1 7 Mohammed Bedjaoui, Toward a New International Economic Order (Paris: UNESCO, 1979) 48. 18 ibid at 49-50. 1 9 For an ingenious discussion of the triumph of positivism in nineteenth century international law, see Antony Anghie, "Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law" (1999) 40 Harvard International Law Journal 1. 20 Ibid. 117 century international sanitary conferences? How universally applicable were the international sanitary conventions that emerged from these 'Euro-centric' sanitary conferences? How inclusive or exclusive were the evolutionary processes through which the international sanitary conventions emerged? It is incontrovertible that most of the developing world, almost all of Africa and many parts of Asia and the Pacific were under European colonial rule in the nineteenth century. The question per se is not whether this undeniable state of affairs - the fact that the sanitary conferences excluded a sizeable percentage of peoples then under colonial rule - is a strong vitiating element that could render those international sanitary conventions nugatory.21 The relevant question rather is whether the dichotomy of 'civilised' and 'uncivilised peoples/societies sanctioned by nineteenth century international law as well as the triumph of positivism as the dominant analytical tool for international lawyers contributed, or is still contributing, to the present public health turbulence in the global neighbourhood. In other words, what legacy did the nineteenth century bequeath to international lawyers of today and their discipline, and in what way(s) has this legacy affected multilateral health initiatives? Has the legacy of the nineteenth-century exacerbated contemporary South-North disparities, and thereby propelled the emergence and cross-border spread of diseases and other public health This question is beyond the scope of this thesis. However it has been the subject of detailed inquiry by leading international scholars from the developing world. See R.P Anand, New States and International Law (Delhi: Vikas Ltd., 1972) arguing that in the nineteenth century Asian states were incapacitated to play any active role in the development of international law during the most creative period of its history. Anand argued further that many rules of international law that emerged in the nineteenth-century were explicitly devised to facilitate the economic exploitation of non-European territories. T.O Elias, Africa and the Development of International Law. 2 n d Revised Ed., (The Hague: Martinus Nijhoff, 1988) arguing that African peoples were excluded in the deliberations at the Berlin Conference 1884-85, where Africa was partitioned between the leading European powers: France, Britain and Germany. C.F Amarasinghe, State Responsibility for Injury to Aliens (1967). cited in Ivan L. Head, "The Contribution of International Law to Development" (1987) Canadian Yearbook of International Law Vol. X X V 29 at 31, arguing that international law in its early stages was developed by states that had more or less similar standards of economic development, and that accepted the colonial principle. This makes it natural for some of the new states to challenge some rules of international law. 118 risks? Has the legacy of the nineteenth-century impeded emerging innovations in health protection and promotion from the developing world? Has the legacy of the nineteenth-century accelerated or impeded the synthesization of developing world traditional healing and ethno-medical approaches with multilateral health policies? 2 2 These questions raise two inter-related issues in contemporary health governance: persistent/systematic exclusion, and power/hegemony in the relations between nation-states and peoples. Persistent/Systematic exclusion is an indicator that the global North has continued to discover the global South, and has done so many times over even in the twentieth and twenty-first centuries.23 It is this continuous discovery that leads to persistent exclusion of public health therapies/practices from the South in multilateral forums: As the next Chapter argues, this persistent exclusion has led to the dismissal of indigenous biomedical and ethno-biological and pharmacological practices in parts of the developing world as magic, sorcery, superstition, and unscientific/uncivilised or primitive barbarism unfit for integration into the corpus of the multilateral health framework. The continuous discovery of the developing world is analogous to Edward Said's ingenious work Orientalism, by which he meant, inter alia, a style of thought based upon ontological and epistemological distinctions made between the Orient and (most of the time) the Occident24. In another related sense, "orientalism" also means "the corporate These questions logically follow Antony Anghie's well-founded observation that "the question of the enduring effects on non-European societies of the history of exclusion is related to the issue of the legacy of the nineteenth-century for the discipline as a whole". See A. Anghie, supra note 19 at 73. 23 See Ivan L. Head, On a Hinge of History: The Mutual Vulnerability of South and North (Toronto: The University of Toronto Press, in association with the International Development Research Centre, 1991) 10 arguing that "the North has discovered the South many times, and it has given the South a variety of names sometimes in error. Curiosity, greed, fear, evangelic fervour, the zeal to civilize: the motivation for contact has ranged from the loftiest to the most base. The North assumed that modernization is desirable, and has thus interpreted Northern dominance as earned. Records of the odysseys of discovery were written by or about the adventurers, not by those discovered". 2 4 Edward Said, Orientalism (New York: Vintage Books, 1978) 2. 119 institution for dealing with the Orient - dealing with it by making statements about it, authorising views of it, describing it by teaching it, settling it, ruling over it: in short, Orientalism as a Western style for dominating, restructuring, and having authority over the Orient."2 5 Power/hegemony implicates nineteenth-century international law as the forerunner and precursor of contemporary power relations in multilateral interdependence between nation-states. Hegemonic and colonial foundations of nineteenth-century international law set the stage for the institutionalisation of contemporary global inequalities. One country, one vote, may be the de jure rule to be followed in the proceedings of multilateral institutions including the World Health Organisation, but there is de facto inequality between member states. In a recent article, Fidler called this power/hegemony in the relations between states "a kinder, gentler system of capitulation".26 It is important to note that nineteenth century public health is long gone by, and now belongs to the dustbin of history, but its colonial and hegemonic legacies still abound. These legacies afford us a window of opportunity to study contemporary public health mulitlateralism: the mandate of the World Health Organisation, selected South-North issues in the proceedings of the Organisation, and WHO's limited use of international legal strategies in global health governance. David P. Fidler, "A Kinder, Gentler System of Capitulations? International Law, Structural Adjustment Policies, and the Standard of Liberal, Globalized Civilization" (2000) 35 Texas Law Journal 327 (defining capitulations basically as a system of extraterritorial jurisdiction and power wielded by European States and the US in the territories of non-European countries, and categorising the Structural Adjustment Policies of the World Bank and the IMF as capitulatory in nature. Fidler argued further that both past capitulatory and present capitulatory regimes were supported by international law, and that the standards of civilisation supporting capitulation were visible in nineteenth-century international law). 120 D: VULNERABILITIES OF CONTEMPORARY PUBLIC H E A L T H MULTILATERALISM: SOUTH-NORTH POLITICS AT THE WORLD H E A L T H ASSEMBLY The World Health Organisation was founded on 7 April 1948 when its constitution earlier adopted at the 1946 International Health Conference in New York, USA, entered into force. The objective of the organisation is the "attainment by all peoples of the highest possible level of health".27 In order to achieve this objective, the Organization shall, inter alia; (i) act as the directing and co-ordinating authority on international health work, (ii) propose conventions, agreements, and regulations, and make recommendations with respect to international health matters, and to perform such duties as may be assigned to it that are consistent with its objective, (hi) promote and conduct research in the field of health, (iv) establish and revise as necessary international nomenclatures of diseases, causes of death and public health practices, and (v) develop, establish and promote international standards with respect to food, biological, pharmaceutical and other products.28 In performing these global health governance functions, the WHO is often bogged down by South-North disagreements on a range of issues that traverse public health, disarmament, politics, human rights, cultural diversity and even the admission of entities not fully recognised as states by the international community. In recent years, the Preamble to the Constitution of the World Health Organization, as adopted by the International Health Conference, New York, USA, 19-22 June 1946 (Official Records of the World Health Organization, no.2, p i 00) 28 See The Constitution of the World Health Organization, ibid. 121 vulnerabilities of public health multilateralism in the guise of South-North debate at the World Health Assembly have, inter alia, focused on the following issues: (i) the admission of Palestine and Taiwan as members of the WHO, (ii) the health conditions of the Arab population in the occupied Arab territories including Palestine, (iii) repercussions on health of economic and political sanctions between states, (iv) an international code for the marketing of breast-milk substitutes, and, (v) the health and environmental consequences of the use of nuclear* weapons by states. Since I cannot discuss the dynamics and complexities of each of these South-North issues vis-a-vis the mandate of WHO, I shall focus on the South-North dimensions of the nuclear weapons debate at the World Health Assembly as a microcosm of the larger politicisation of contemporary public health multilateralism since the WHO was founded. The debate and politicisation of the link between nuclear weapons and public health at the World Health Assembly dates back to the early 1970s. In May 1973, the twenty-sixth World Health Assembly - conscious of the potentially harmful consequences for the health of present and succeeding generations from any contamination of the environment resulting from nuclear weapons testing - passed Resolution WHA26.57 on nuclear testing. Recognising that fall-out from nuclear weapons tests is an uncontrolled and unjustified addition to the radiation hazards to which humanity was exposed, the Assembly expressed serious concern that nuclear weapon testing has continued in disregard of the spirit of the treaty banning nuclear 122 weapons tests in the atmosphere, outer space and under water. Recalling two important provisions of the WHO Constitution that, (i) the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic and social conditions, and (ii) the health of all peoples is fundamental to the attainment of peace and security and is dependent upon the fullest co-operation of individuals and states; Resolution WHA26.57 deplored all nuclear weapons testing which results in such an increase in the level of ionizing radiation in the atmosphere and urged its immediate cessation. In 1979, the thirty-second World Health Assembly passed Resolution WHA32.24 1 entitled "The role of physicians and other health workers in the preservation and < promotion of peace".29 Resolution WHA32.24 noted the U N General Assembly -resolutions on the maintenance and strengthening of peace, extension of detente,! averting = of the threat of nuclear war, prohibition of the development of new types of weapons of mass destruction, banning of aggressive military conflicts, and attaining of the objectives of true disarmament. The Assembly urged the Director-General of the WHO to prepare a report on the further steps which WHO, as a United Nations specialised agency, would take in the interests of international socio-economic development, and also with the aim of assisting in the implementation of the U N resolutions on the strengthening of peace, For a text of this Resolution by the World Health Assembly, see WHO, Handbook of Resolutions and Decisions of the World Health Assembly and the Executive Board Vol. II 1973-1984 (Geneva: WHO, 1985) 397. 123 detente, and disarmament. Pursuant to Resolution WHA34.38 of May 1981, the Director General of WHO established an International Committee of Experts in Medical Sciences and Public Health, which in 1984 published a report on "effects of nuclear war on health and health services".31 The expert committee concluded - among others - that it is impossible to prepare health services to deal in any systematic way with any catastrophe or cataclysm resulting from nuclear warfare, and that nuclear weapons constitute the greatest immediate threat to the health and welfare of humanity. In the early 1990s, the debate on public health consequences of nuclear weapons at the World Health Assembly became a serious South-North issue.32 The reason for this is not far-fetched. In the 1990s, developing countries (mostly non-nuclear powers) that sponsored resolutions on nuclear weapons and health at the World Health- Assembly sought to move from 'soft-law' approach (non-binding resolutions of the World Health Assembly) to a legally binding/obligatory norm. This move, which was to start with an advisory opinion of the International Court of Justice on the legality of the use of nuclear weapons by states33 was vehemently opposed by those developed countries that possessed nuclear weapons. Thus, in the early 1990s, the politics of nuclear weapons A similar resolution; WHA34.38 was passed by the World Health Assembly in May 1981 requesting the WHO Director-General to continue collaboration with the Secretary General of the United Nations and with other governmental and non-governmental organisations in establishing a broad and authoritative international committee of scientists and experts for the comprehensive study and elucidation of the threat of thermonuclear war and its potentially baneful consequences for the life and health of peoples of the world. For a text of Resolution WHA34.38, see WHO, Handbook of Resolutions and Decisions, ibid pp397-398. 31 See World Health Organisation, Effects of Nuclear War on Health and Health Services: Report of the International Committee of Experts in Medical Sciences and Public Health to Implement Resolution WHA34.38 (Geneva: World Health Organisation, 1984). The World Health Assembly adopted this report by Resolution WHA36.28 in May 1983. 3 2 This was ironical because the end of the cold war in the early 1990s expectedly would have facilitated global consensus on effective non-proliferation of nuclear weapons. 3 3 Advisory Opinions of the International Court of Justice are not legally binding, but nonetheless serve as authoritative and persuasive interpretations of treaty and customary international law on issues within the competence of the UN General Assembly and specialised agencies of the United Nations system. 124 almost tore the WHO apart. The Organisation suffered a credibility crisis when nuclear weapons states threatened to withhold their financial and other contributions to the WHO i f it went ahead with the nuclear weapons debate. To focus discussion particularly on the vulnerabilities of multilateral public health to south-north acrimony, I sketch how the forty-sixth World Health Assembly in May 1993 was entrapped in the South-North politics of the health and environmental effects of nuclear weapons, and whether indeed the WHO could seek an advisory opinion on nuclear weapons from the International Court of Justice. In 1993, the forty-sixth World Health Assembly of the WHO voted to request an advisory opinion from the International Court of Justice framed thus: "In view of the health and environmental effects, would the use of nuclear weapons by a State in war or armed conflict be a breach of its obligations under international law including the WHO Constitution?". Ms. Lini , the delegate of Vanuatu, expressed a view typical of a majority1 of the countries of the south that voted massively in favour of the resolution. Vanuatu, she argued, had sponsored the draft resolution in order to be consistent with its principles and its commitment to safeguarding the future of the global environment and of the human race.... Any nuclear accident, any atmospheric testing, and any nuclear weapon deployment not only affected health and the environment but could also threaten the survival of humanity through its impact on the food chain.... Vanuatu had sponsored the draft resolution aimed at obtaining the view of the International Court of Justice on the use of nuclear weapons because it saw such use not only as a health issue but also as a threat to humanity.34 34 See Speech of Ms. Lini , 46 t h World Health Assembly: Summary Records of Committees p260, WHA46/1993/REC/3 (May 12, 1993) (hereafter Summary Records). In support of Vanuatu, the delegate of Zambia argued that requesting an opinion from the International Court of Justice was a "gesture that would have tremendous impact on the world's nuclear status. As the prevention of nuclear proliferation merely served to maintain or even increase the nuclear arsenals of the nuclear countries while hindering other states from obtaining such weapons, the focus should be on their complete abolition". See Summary Records, ibid at 259. 125 Mexico, a non-nuclear state - but paradoxically and geographically - a developing country in the global North, voted in favour of the resolution because "non-nuclear weapon states had a nuclear sword of Damocles hanging over them and were powerless to change the situation".35 Nuclear weapon states, led by the United States, countered and argued at the World Health Assembly that the question of legality and illegality of the use of nuclear weapons is an arms control question that is beyond the public health mandate of the World Health Organisation. The draft resolution on legality of nuclear arms, the US delegate argued, "would push the WHO into debates about arms control and disarmament that are the responsibility of other organisations in the United Nations system as well as other multilateral bodies". After intense debate on South-North lines, the forty-sixth World Health Assembly by a vote of 75-33 (with five abstentions) voted in favour of requesting an advisory opinion from the International Court of Justice on 3the legality of the use of nuclear weapons. On 8 July 1996, the International Court of Justice declined to, give the Advisory Opinion requested by the World Health Assembly of the WHO, and ruled that the legality of the use of nuclear weapons was ultra vires the public health mandate of the WHO as provided in its constitution.37 5 i Ibid 36 See Speech of Mr. Boyer, US delegate to the 46* World Health Assembly, Summary Records, ibid, 273. 3 7 See Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, (1996) ICJ Reports 4 at p66 (WHO Opinion). I am not concerned in this thesis with an international legal analysis of the court's ruling/opinion to determine i f it was rightly decided or given per incuriam. I am only concerned with the South-North dimension of the debate at the 46 t h World Health Assembly that preceded its journey to the ICJ. International legal scholars are sharply polarised on whether the opinion expressed by the court was right or wrong. In a recent volume, Professors Laurence Boissson de Chazournes & Philippe Sands have dealt with the divergent views of eminent international lawyers on the soundness or otherwise of the nuclear weapons decisions of the International Court of Justice. See L .B de Chazournes & P. Sands, International Law, the International Court of Justice and Nuclear Weapons (Cambridge: Cambridge University Press, 1999) (with contributions from leading scholars: Richard Falk, Thomas Franck, Virginia Leary, David Kennedy, M . Koskenniemi, George Abi Saab, et al). 126 The nuclear weapons debate at the World Health Assembly presented enormous challenges (including a credibility crisis) for the WHO as a specialised agency of the United Nations system. Nonetheless, it paved the way to re-think the relevance of international law in global health governance because the debate raised broad questions traversing disarmament, international humanitarian law, international peace and security, use of force, public health, and protection of the global environment, all within the fuzzy confluence of law and politics. Nuclear weapons arguably may not be stricto sensu public health issues, but an avalanche of global public health issues that are squarely within the mandate of the WHO also raise similar broad questions like nuclear weapons. What role(s) then should international law play in this emergent global health fabric vis-a-vis the mandate of a multilateral institution charged with directing and co-ordinating1 international health work? I explore this question in what follows as 'International Law and Governance of the Mandate of the World Health Organization'. I conduct two levels: of inquiry on two governance mechanisms used by the WHO to pursue its multilateral public health mandate: the International Health Regulations (IHR) and the Framework Convention on Tobacco Control (FCTC). E: INTERNATIONAL LAW AND GOVERNANCE OF THE MANDATE OF THE WORLD HEALTH ORGANISATION: TWO LEVELS OF INQUIRY There are two major reasons why the relevance (or otherwise) of international law in health governance deserves attention in scholarship and in a multilateral policy-making framework. The first is the maturity and complexity of contemporary international law and its simultaneous transformation from a defensive ontological discipline3 8 to a creative 3 8 International law as a defensive ontological discipline compelled lawyers to defend the very existence of their discipline by debating whether international law is law, politics or morality. See Thomas M . Franck, Fairness in International Law and Institutions (Oxford: Clarendon Press, 1995) 6. 127 post-ontological discipline capable of regulating and governing every conceivable global issue of our time.4 0 With respect to global health governance, post-ontological international law, for instance, enables us to assess the fairness and effectiveness of the law in regulating the cross-border spread of diseases and health risks in a divided world through a 'disease non-proliferation treaty'. Outside the realm of infectious diseases, other transnational health problems arising from tobacco control and international trade in illicit drugs and narcotics also require multilateral regulation. L'hirondel and Yach have identified such global health problems as tobacco use, misuse of anti-microbial drugs, international trade in blood and human organs, standards for biological and pharmaceutical products, and xenotransplantation, as issues that require the intervention of international law in the pursuit of the WHO's mandate.41 Almost coterminous with international law's post-ontological transformation is the fact that the structure and dynamics of international relations force states to use international law in international health co-operation.42 Thus international law must necessarily play an active role in the distribution of the dividends of public health protection as a public good in a sharply divided world. International law as a creative post-ontological discipline enables lawyers to ask questions about the fairness of international law and its effectiveness/legitimacy in regulating emerging global issues. See Thomas M . Franck, ibid. 4 0 Here I remain a student of Thomas M . Franck whose fairness discourse argues that "international law has matured into a complete legal system covering all aspects of relations among states.... The challenge of space exploration has joined with the degradation of the earth's environment ... to entice or compel individuals and governments to think in terms of our common destiny: to counter humanity as a single gifted but greedy species, sharing a common, finite, and endangered speck of the universe.... These factors have drawn humanity into a circle, seized our attention, and empowered the law makers". See Thomas M . Franck, ibid. 41 See Aude L'hirondel & Derek Yach "Develop and Strengthen Public Health Law" (1998) 51 World Health Statistics Quarterly 79. 42 See generally, David P. Fidler, "Return of the Fourth Horseman: Emerging Infectious Diseases and International Law" (1997) 81 Minnesota Law Rev. 788, David P. Fidler, supra note 12 at 21 arguing that "historically once public health problems entered the realm of the international system, states turned to international law as a tool to develop common rules, institutions and values". 128 A second reason to explore international law's relevance in global health governance relates to the need for a critical assessment of the historical evidence and realities of the formidable role that international law played in forging consensus on cross-border health problems at the nineteenth-century international sanitary conferences. Opinions expressed by international scholars are almost unanimous that post-1948 international health developments have sustained a systematic marginalisation of international legal mechanisms; a phenomenon that is clearly antithetical to the use of treaties and conventions in nineteenth-century public health diplomacy.43 Taken together, these two factors would hardly explain WHO's present timidity -unlike the other United Nations specialised agencies - in using international legal mechanisms (treaties) to pursue its global health mandate. In over fifty years:of its history, the WHO has under-utilised its enormous and innovative legal powers as provided in its constitution. Article 19 of the Constitution of WHO gives the organisation treaty-making powers very similar to that of most multilateral institutions. It provides that, Allyn Taylor in a 1992 seminal article asserted that "WHO has had only limited success in stimulating national implementation of universal health service programs, in part because the organization has paid insufficient attention to the role that legislation can play in the Health for All Strategy". See A.L Taylor, "Making the World Health Organization Work: A Legal Framework for Universal Access to the Conditions of Health" (1992) 18 American Journal of Law & Medicine 302. Fidler argues that "the WHO is facing an international legal tsunami that will require a sea change in its attitude towards international law. WHO's lack of interest in international law does not reflect the historical experience of states and international health organizations prior to World War II. While WHO has been accused of focusing too little on international law, international relations prior to World War II were plagued by too much international health law", see D.P Fidler, "The Future of the World Health Organization: What Role for International Law" (1998) 31 Vanderbilt Journal of International Law 1079. See also Katarina Tomasevski, "Health", O. Schachter & C.C Joyner, (eds.,) United Nations Legal Order Volume II (Cambridge: Cambridge University Press, 1995) 859 (arguing that WHO's Eighth General Programme of Work covering the period 1990-1995 does not even mention international law. The paucity of health law developed by the WHO could lead to an impression that health protection is not susceptible to legal regulation were it not for its expansion elsewhere, including the United Nations, both in quantity and in the range of issues it covers). 129 the Health Assembly shall have the authority to adopt conventions or agreements with respect to any matter within the competence of the Organization. A two-thirds vote of the Health Assembly shall be required for the adoption of such conventions or agreements, which shall come into force for each Member when accepted by it in accordance with its constitutional processes.44 Although there is nothing expressly or implicitly innovative about Article 19, some scholars argue that when combined with the ambitious objective of the WHO, "the attainment by all peoples of the highest possible level of health", and WHO's equally ambitious definition of health as "a state of complete physical, mental, and social well-being and not merely the absence of disease or infirmity", Article 19 provides the WHO with virtually limitless treaty-making power that surpasses any treaty power possessed by the organisation's precursors: the Pan American Sanitary Bureau, the International Office of Public Health, and the Health Organization of the League of Nations.4 5 Article 21 of the WHO Constitution provides for an innovative treaty-making and norm-creating procedure that is novel in the practice of multilateral institutions: the power of the World Health Assembly to adopt legally binding regulations concerning: (a) sanitary and quarantine requirements and other procedures designed to prevent the international spread of disease; (b) nomenclatures with respect to diseases, cause of death and public health practices; (c) standards with respect to diagnostic procedures for international use; (d) standards with respect to the safety, purity and potency of biological, pharmaceutical and similar products moving in international commerce; See Article 19 of the Constitution of the World Health Organisation, World Health Organisation: Basic Documents 2 n d ed. (Geneva: World Health Organisation, 1999) 7. 45 See David P. Fidler, supra note 43 at 1087. 130 (e)advertising and labelling of biological, pharmaceutical and similar products moving in international commerce.46 Article 21 is innovative because it dispenses with the time-wasting treaty-making procedure whereby states - like parties to a contract in domestic law - have to sign and ratify treaties before they are legally bound by such treaties. Article 21 procedure gives the health assembly the power to adopt legally binding regulations without the positive act of consent by states as symbolised by the time-hallowed practice of signature and subsequent ratification.47 For Regulations adopted under Article 21, there is equally an innovative procedure of 'contracting out' in Article 22. Such Regulations shall come into force for all Member States after due notice has been given of their adoption by the Health Assembly except for such Members as may notify the WHO Director-General of a rejection or reservation(s) within the period specified in the notice.48 Articles 21 & 22 of the WHO Constitution have been described as creating a quasi-legislative procedure that constituted a radical departure from the conventional international rule making and norm-generation in the late 1940s when the WHO was founded.49 Under Article 23 of the WHO Constitution, the Health Assembly shall have the authority to make recommendations with respect to any matter within the competence of the organisation. The relevance of international law in global health governance can only be exhaustively explored within the scope of the legal, constitutional and treaty-making Art. 21 Constitution of the WHO, ibid note 44. 4 7 On treaty making by states in international law, see The Vienna Convention on the Law of Treaties 1969 (1969) 8 I.L.M 679; D.J Harris, Cases and Materials on International Law 5 t h edition (London: Sweet & Maxwell, 1997) 765; I. Brownlie, Principles of Public International Law 4 t h Edition (Oxford: Clarendon Press, 1990) 603. 4 8 Article 22 Constitution of the World Health Organisation, supra note 44 at 6. 4 9 Walter R. Sharpe, "The New World Health Organisation" (1947) 41 American Journal of International Law 509. 131 powers of the WHO: Article 19 (conventional treaty-making power), Article 21 (radically innovative legislative power to adopt legally-binding regulations), and Article 23 (power to make non-binding recommendations). For decades, an intense debate has raged among scholars and policy-makers on the possible reason(s) why the WHO has continued to under-utilise its innovative legal powers since 1948. Put another way, should the WHO as a specialised and technical agency within the United Nations system adopt legally binding approaches or indeed use international law in the pursuit of its global health mandate? There are two clear schools to this debate: lawyers on the one side, and doctors/epidemiologists on the other side. Expressing a view typical of the lawyers, Fidler in a recent critique argued that post-1945 WHO operated as i f it were at the centre of a transnational Hippocratic5 0 ;Society.Tn his words, WHO was isolated from general developments concerning international law in the post-1945 period. This isolation was not accidental but reflected a particular outlook on the formulation and implementation of international health policy. WHO operated as i f it were not subject to the normal dynamics of the anarchical society; rather, it acted as i f it were at the centre of a transnational Hippocratic society made up of physicians, medical scientists, and public health experts. The nature of this transnational Hippocratic society led WHO to approach international public health without a legal strategy.51 Similarly Taylor argued that "WHO's traditional reluctance to utilize law and legal institutions to facilitate its health strategies is largely attributable to the internal dynamics See my discussion of Hippocrates and the influence he had on modem medicine and epidemiology, supra Chapter Three, p82 at note 13. 5 1 David P. Fidler, "International Law and Global Public Health" (1999) 48 University of Kansas Law Review 1 at 15. See also K. Tomasevski, supra note 43 at 859 (strongly critiquing WHO's overt bias in favour of non-binding and non-legal norms built upon ethical rather than legal principles. Also submitting that an important reason for WHO'S bias for non-binding rules is the traditional reluctance of the medical profession to submit itself to the rule of law. Beginning in the eighteenth century, medical associations developed codes of professional behaviour. Self regulation presumes the exclusion of lay persons, thus 132 and politics of the organization itself. In particular, this unwillingness stems, in large part, from the organizational culture established by the conservative medical professional community that dominates the institution".52 The view of the doctors/epidemiologists in the debate is understandably influenced by the giant strides made by science in proving the germ theory correct. Once epidemiologists understood how humans were infected by disease, they automatically turned to diagnosis and healing, and not to international law as a solution. International lawyers who are very critical of WHO's non-legal approaches to global health work recognise this point. Fidler put it succinctly: The common argument used to explain WHO's antipathy towards international law is that WHO is dominated almost exclusively by people trained in public health and medicine, which produces an ethos that looks at global health problems as medical-technical issues to be resolved by the application of the healing arts. The medical-technical approach does not need international law because the approach mandates application of the medical and technical resource or answer directly at the national or local level. Science catalysed the development of international health law in the 1890s because it provided the breakthrough needed to facilitate agreement by states on common rules and values. But in the contemporary era, the antibiotic revolution impeded the development of international health law because doctors and public health officials go directly after microbes rather than seek recourse to international legal regimes on global reinforcing the traditional paternalism of the medical profession, dating back to the Hippocratic Oath: the assumption that whatever a physician decides is, by definition, correct). 5 2 Al lyn L Taylor, supra note 43 at 303. See also, Alison Lakin, "The Legal Powers of the World Health Organization" (1997) 3 Medical Law International 23 (discussing the underdeveloped but potentially influential normative function of the W H O and whether the Organization could more effectively utilise its constitutional legal powers to pursue its role as director and advocate of international health). 5 3 David P. Fidler, supra note 43 at 1099. 133 health issues.54 Little wonder then that as early as 1948, Sir Wilson Jameson, President of the first World Health Assembly showed very scant respect for international law when he asserted, Let us face the facts and refrain from a discussion of legal technicalities into which we, as an assembly of public health experts, are perhaps hardly competent to enter.55 It is by no means an easy task to synthesise the tensions raised by the legal and medical/epidemiological schools of thought; the reach and grasp of each has its pros and cons. Nonetheless, it is important to note that a strong emphasis on medical-technical ethos with a glorified celebration of the healing art would amount to an undue medicalization of public health. Public health is broader and more encompassing than medicine, although medicine is part of public health. Recalling the expansive definition of health in the WHO Constitution as "a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity", then linkages must be created between public health and poverty, underdevelopment, human rights, food scarcity, environmental protection, wars and weapons of war (both nuclear and conventional), civil conflicts, natural disasters, international trade, and globalisation as each of these affects human health. On each of these issues that have indelible fingerprints on the global health fabric, international law has played a formidable role in forging agreements between states, and these agreements must in turn feed into global health governance with respect to the mandate of the W H O . 5 6 In retrospect, the post-1945 OR 13 1948 (Records of the First World Health Assembly, 1948) p77. Sir Wilson Jameson was responding to legal issues and reservations raised by US membership of the WHO. 5 6 Aude L'hirondel & Derek Yach, supra note 41 at 83 has identified international human rights law, international environmental law, international trade law, law of the sea, international maritime law, intellectual property law, law of bioethics, as areas of international law relevant to WHO's global health mandate. David P. Fidler's International Law and Infectious Diseases, supra note 12 creates similar 134 decades since the birth of the United Nations have witnessed the evolution of international legal mechanisms on human rights (including the right to health), global environmental issues, humanitarian law, and food and agriculture among others. WHO seems to have missed out of these exciting normative developments and regime-creations relevant to public health. Neither did it take any active part in the creation of these regimes by other international agencies nor did it exercise its treaty-making and constitutional/legal powers to initiate the creation of its own health regimes. Having critiqued WHO's limited use of international law, it is important to warn of the dangers and limitations inherent in advocating extreme legalistic approaches to multilateral health governance. In the public health context, law may simply be a means to amend, not an end itself. Fidler agrees as much that "world health through world law, is just as fanciful a notion as the ridiculed slogan of 'world peace through;world law'. Law is ultimately an instrument in human affairs, not an end in itself... Neither international law nor global health jurisprudence provides a magic bullet against public health problems in the world today".57 In reconciling the tensions between legal and medical approaches, placing global health governance within the normative ambit of international law is extremely important, but legalism must necessarily be matched with incentives that would significantly induce compliance with such legal rules and norms. Before comparing global health governance mechanisms with similar mechanisms on global environmental issues where financial and technical assistance have been used as incentives to induce compliance, it is important to briefly analyse two legal/regulatory linkages between global infectious disease threats and international trade law, international environmental law, international humanitarian law, and international human rights. 5 7 David P. Fidler, supra note 51 ppl &57. 135 approaches used by WHO in pursuit of its mandate: the International Health Regulations (IHR) and the ongoing negotiations for a WHO Framework Convention on Tobacco Control (FCTC). (I) FIRST L E V E L OF INQUIRY: INTERNATIONAL H E A L T H REGULATIONS (IHR) The historical evolution of the International Health Regulations58 (hereafter "IHR") dates back to the mid-nineteenth century when epidemics of cholera overran Europe between 1830 and 1847. These epidemics paved the way for subsequent public health diplomacy and multilateral initiatives. In 1948 when the Constitution of the World Health Organisation came into force, a series of multilateral sanitary conventions and sets of regulations were already in force, and being enforced by autonomous and independent multilateral organisations - the International Office of Public Health (in Paris),, the Health Organisation of the League of Nations (in Geneva), and the Pan-American Sanitary Bureau (in Washington, DC). In 1951 WHO, pursuant to its legal powers under Article 21 of its constitution adopted the International Sanitary Regulations - the product of nineteenth century public health diplomacy. The WHO renamed these regulations the International Health Regulations (IHR) in 1969, and slightly modified them in 1973 and 1981. Since then, the IHR have been in force representing the first legally binding treaty adopted by WHO, and one of the earliest multilateral treaties strictly focusing on global surveillance for communicable diseases. As of 1997, the IHR were legally binding on all WHO's 194 Member States except Australia. The IHR are a regulatory surveillance 5 8 World Health Organisation, International Health Regulations 1969 3 r d Annotated Edition (Geneva: WHO, 1983). 136 mechanism for the sharing of epidemiological information on the transboundary spread of three infectious diseases: cholera, plague and yellow fever. Their fundamental principle is to ensure 'maximum security against the international spread of diseases with a minimum interference with world traffic'. To achieve this purpose, the IHR provide for binding obligations on WHO Member States to notify the Organisation of any outbreaks of cholera, plague and yellow fever in their territories.59 Notifications sent by a Member State to WHO are transmitted to all the other Member States with acceptable public health measures to respond to such outbreaks. This is part of WHO's surveillance mandate for the global spread of infectious diseases aimed at providing maximum security against transnational proliferation of diseases. The IHR list maximum public health measures applicable during outbreaks, and provide for rules applicable to international traffic and travel. These measures cover the requirements of health and vaccination certificates for travellers from areas infected by these three diseases to non-infected areas; deratting, disinfecting and disinsecting of ships and aircraft as well as detailed health measures at airports and seaports in the territories of WHO Member States.60 The reason why measures listed in the IHR are the maximum measures allowed in outbreak situations is to protect the country that suffers an outbreak against the risk of overreaction and unnecessary embargoes, which could be imposed by contiguous neighbours, trading partners and other countries. These embargoes are often damaging economically, with severe consequences on tourism, traffic and trade. 5 9 For detailed provisions of the IHR on the obligation to notify WHO of outbreaks of these diseases and the sharing of epidemiological information contained in the notifications to other Member States, see Articles 2-13 of the IHR, ibid. 60 See David P. Fidler, supra note 12 at 61 stating that the IHR seek to provide WHO Member States with maximum protection against the importation of infectious diseases. To achieve this objective, the IHR establish a global surveillance system for the diseases subject to the regulations, require certain types of 137 Outbreak situations therefore require a multilaterally measured and evidence-based response founded on sound public health reasoning by a neutral multilateral organisation like the WHO. Airports and seaports in the territories of WHO Member States shall have a core surveillance capacity and capabilities to detect and contain outbreaks of the diseases subject to the IHR. Articles 14-22 of the IHR require every port and airport to be provided with pure drinking water and wholesome food supplied from sources approved by the health departments of Member States.61 Every port and airport shall be provided with an effective system for the removal and safe disposal of excrement, refuse, waste water, condemned food, and other matter dangerous to public health.62 There shall be an organised medical and health service staff, equipment and premises, and facilities.for the prompt isolation and care of infected persons, in as many ports and seaports as practicable.63 Also, as many ports and seaports as possible shall have facilities for disinfection, disinsecting, deratting, bacteriological investigation, collection and examination of rodents for plague infection, collection of food and water samples and their despatch to a laboratory for examination.64 Other core surveillance facilities required at ports and seaports by the IHR include, adequate personnel competent to inspect ships,65 designation of certain airports as sanitary airports for purposes of yellow health-related capabilities at ports and airports of Member States, and set out disease-specific provisions for the covered diseases. 6 1 Article 14(2) IHR. 6 2 Article 14(3) IHR. 6 3 Article 15 IHR. 64 Ibid. 6 5 Article 17 IHR. 138 fever vaccination and related health measures,66 and measures against malaria and other diseases of international epidemiological importance. Part IV of the IHR (Articles 23-49) makes detailed provisions for health measures applicable to international traffic and the procedure for their application. Article 25 contains precautionary provisions on the application of these measures. It provides that disinfection, disinsecting, deratting, and other sanitary operations shall be carried out so as: (a) not to cause undue discomfort to any person, or injury to his health; (b) not to produce any deleterious effect on the structure of a ship, an aircraft, or a vehicle, or on its operating equipment; (c) to avoid any risk of fire. In carrying out these operations on cargo, goods, baggage, containers and other articles, every precaution shall be taken to avoid any damage. Part V provides for detailed, but specific, surveillance measures on the three diseases subject to IHR: cholera, plague and yellow fever. For example, Article 52 provides that every state shall employ "all means within its power to diminish the danger from the spread of plague by rodents and their ectoparasites". On yellow fever, vaccination against yellow fever may be required of any person leaving an infected area on an international voyage.68 A person in possession of a valid certificate of vaccination against yellow fever shall not be treated as a suspect, even i f he has come from an infected area.69 The IHR also require a master of a sea-going vessel making an international voyage - when required by the health authority 6 6 Article 18 IHR. 6 7 Article 19 IHR. 6 8 Article 66(1) IHR. 6 9 Article 66(3) IHR. 139 in charge of a port - to complete and deliver to the health authority of that port a Maritime Declaration of Health, which shall be countersigned by the ship's surgeon i f one is carried on board.7 0 The master and the ship's surgeon, i f one is carried, shall supply any information required by the health authority as to health conditions on board during the voyage.71 An assessment of the effectiveness and enforcement of the IHR by WHO reveals that the IHR have been unsuccessful as a global surveillance tool. Many reasons account for the ineffectiveness of the IHR. Chief among these is the fear of excessive measures from other countries i f a country suffering an outbreak of cholera, plague or yellow fever notifies WHO of any such outbreak. Recent examples abound. Cholera epidemics in South America, which were first reported in Peru in 1991, were estimated to have cost over $700 million in trade and other losses.72 In 1994, a plague outbreaks India led to $1.7 billion losses in trade, tourism and travel as a result of excessive embargoes and restriction imposed on India by other countries73. Commenting on the Indian plague and the embargoes that followed it, Taylor stated that such excessive measures included closing of airports to aircraft that were arriving from India, barriers to importation of foodstuffs, and in many cases the return of Indian guest workers even though many of them had not lived in India for several years74. Most recently, the European Community 7 0 Article 77(1) IHR. 7 1 Article 77(2) IHR. 7 2 David L. Heymann, "The International Health Regulations: Ensuring Maximum Protection with Minimum Restriction" 13 (Unpublished Manuscript, Program Materials on Law and Emerging and Re-Emerging Infectious Diseases, Annual Meeting of the American Bar Association, 1996) (on file with the author). 73 Ibid. 7 4 Allyn L. Taylor, "Controlling the Global Spread of Infectious Diseases: Toward a Reinforced Role for the International Health Regulations (1997) 33 Houston Law Rev. 1348 citing David Heymann, ibid. See also, Laurie Garret, "The Return of Infectious Diseases", Foreign Affairs Jan-Feb. 1996 73-74 (stating that India lost almost two billion dollars as result of excessive measures following the plague outbreak). 140 (EC) imposed a ban on the importation of fresh fish from East Africa following the outbreak of cholera in certain East African countries.75 At the time of the E U ban, fish exports from the affected East African countries, Kenya, Mozambique, Tanzania and Uganda to EC countries stood at $230 million. The E U was their biggest trading partner for fresh fish. 7 6 Other reasons often cited for the ineffectiveness of the IHR include WHO's inexperience in the creation and enforcement of legal regimes77, the IHR's inability to adapt to changing circumstances in international traffic, trade and public health78, the IHR's limited coverage of only three diseases, and the breakdown, and in many cases, glaring non-existence, of core surveillance capacity and facilities in many WHO Member States. Senior officials of the WHO admit that the utility of the IHR. as a global surveillance regime is of doubtful validity. Fluss, the retired Chief of Health Legislation of the WHO argued, the inconsistency of the earlier regime (for the control of the international spread of diseases) under the succession of conventions and agreements was apparent: none of these sanitary agreements entirely replaced each other, they did not take account of new methods available for the control of the diseases they covered, and they were not framed to deal adequately with the greatly increased volume and speed of international traffic™ In 1968, WHO's Deputy Director-General stated that the LHR's objective of avoiding See European Commission, Decision 97/878/EC, (1997) at 64, European Commission, Decision 98/84/ECzX 43. 76 See Fidler, supra note 12 at 80. 7 7 According to Boris Velimirovic, "Do We Still Need International Health Regulations?" (1976) 133 Journal of Infectious Diseases 478 at 481, "Is there much sense in the maintenance of rules if they are not observed - if they are disregarded or more or less systematically broken - without any consequences for those who deviate". 78 ibid, arguing that the IHR lags behind medical, trade and travel advances. 7 9 (my emphasis) See, Sev. S. Fluss "International Public Health Law: An Overview", Detels, et al, (eds.,) Oxford Textbook of Public Health. Vol.1 (Oxford: Oxford University Press, 1996) 371. 141 excessive and unnecessary quarantine measures has failed. In 1974, the Chief of WHO's Epidemiological Surveillance of Communicable Diseases stated that the value of 81 the IHR in ensuring minimum interference with world traffic was questionable. Because the IHR have become a 'toothless sleeping treaty', but paradoxically one that cannot easily be banished to the dust-bin of public health history, the forty-eighth World Health Assembly in May 1995 passed a resolution calling on the Director-General of WHO to start a process of IHR revision.8 2 Fidler noted that "the decision to revise the IHR came in response to the increasing concerns about emerging and re-emerging infectious diseases and the inadequacy of the existing IHR to deal with these growing problems" . Taylor commented that "revision and expansion of the IHR to provide a basis for effective national, regional, and global action is imperative to prevent the spread of emerging infectious diseases. The Regulations have not been revised in over fifteen years and do not regulate procedures for management of highly infectious new diseases and resurgence of deadly old diseases".84 Pursuant to the World Health Assembly resolution, the WHO in December 1995 held an informal consultation of experts on IHR revision.8 5 Taylor observed that the group of experts did not include any lawyers with expertise in international legislation. The expert group proposed a range of amendments P. Dorolle, "Old Plagues in the Jet Age: International Aspects of Present and Future Control of Communicable Diseases" (1969) WHO Chronicle 105. 81 ibid, quoting E. Roelsgaard, "Health Regulations and International Travel" (1974) 28 WHO Chronicle 265. See also Fidler, supra note 12 at 68 (stating that the WHO Constitution does not provide for any sanction against a Member State that fails to comply with a binding regulation enacted under Article 21). 82 See WHO, Revision and Updating of the International Health Regulations, WHA Resolution 48.7, 48 th World Health Assembly, 12 May 1995. 8 3 Fidler, supra note 12 at 70, citing Communicable Diseases Prevention and Control: New, Emerging and Re-Emerging Infectious Diseases, WHA Resolution 48.13,48th World Health Assembly, 12 May 1995. 8 4 Allyn L. Taylor, supra note 74 at 1346. 85 See WHO, The International Response to Epidemics and Application of the International Health Regulations: Report of a WHO Informal Consultation, UN Doc. WHO/EMC/IHR 96.1 (1995). S6 supra note 74 at 1350. 142 to the IHR, and in February 1998, the WHO circulated to its Member States a provisional draft of revised IHR. The most important of the amendments was the expansion of diseases subject to the regulations beyond plague, yellow fever and cholera. In particular, the requirement to report these three diseases should be replaced by immediate reporting of defined disease syndromes of urgent international importance as well as epidemiological information for their emergence, prevalence and control. These syndromes are grouped into six categories: acute haemorrhagic fever syndrome, acute respiratory syndrome, acute diarrhoeal syndrome, acute jaundice syndrome, acute neurological syndrome, and other notifiable syndromes. In the draft, all cases of acute haemorragic fevers must be reported immediately. For the other syndromes,.only clusters that are of urgent international importance should be reported. Five factors-determine i f a cluster of syndromes is of urgent international importance. These include: ; rapid transmission of the syndrome in the community, unexpectedly high case fatality ratio, newly recognised syndrome, high political and media profile, and trade/travel restrictions. Another change in the Provisional Draft of the IHR related to the power of the WHO to request information from Member States based on information WHO received from other reliable sources: WHO Collaborating Centres, non-governmental organisations, mass media, other international organisations, and other countries. Previously the WHO never had this power; it simply waited for a Member State to notify it of an outbreak. The rationale behind this proposal is that few, i f any, disease outbreaks can be hidden because of extensive global media networks. Innovations in 8 7 Since I do not intend to deal with all the changes proposed by the expert committee, I focus on just two of the changes: reporting of syndrome instead of diseases, and the need for the WHO to use information on 143 communications technology have rendered state sovereignty irrelevant in disease outbreaks. Independent global outbreak monitoring sources now abound. One example is the Global Public Health Information Network (GPHIN), an electronic surveillance system developed by Health Canada. According to field epidemiologists at the WHO, GPHIN continuously monitors some 600 sources, including all major news wires, newspapers, and biomedical journals. The system focuses its search on communicable diseases but will soon cover non-communicable diseases, food and water safety, environmental health risks, and the health impact of natural disasters.88 WHO field epidemiologists rely on outbreak information from GPHIN, but have developed steps to verify such information before publishing it in WHO's authoritative Weekly Epidemiological Record. 8 9 Other internet-based information providers on disease outbreaks include ProMED; a private initiative of the Federation of American* Scientists' Program for Monitoring Emergent Infectious Diseases that creates a global system of early detection and response to disease outbreaks90 and PACNET, an internet-based information provider on disease outbreaks in the Pacific region. The implication of these innovations is that disease outbreaks can no longer be hidden under the veil of state sovereignty. As prelude to the submission of the Provisional IHR Draft to the World Health Assembly for adoption under Article 21 of the WHO Constitution, the WHO conducted a pilot study in randomly selected countries to test the efficacy of syndrome reporting and outbreaks obtained from other reliable sources if a country fails to report an outbreak directly to WHO. 88 See Thomas W. Grein, et al., "Rumours of Disease in the Global Village: Outbreak Verification", (2000) 6 Emerging Infectious Diseases 97. 89 ibid. 9 0 ProMed maintains ProMed-mail: a free electronic mail list with subscribers from over 150 countries. Subscribers numbering over 15,000 report and discuss outbreaks of infectious diseases. For a discussion of 144 other changes proposed in the IHR. The pilot study exposed the gaps and highlighted difficulties of syndrome reporting. The study revealed that syndrome-reporting was highly unpopular in both developed and developing countries where they were tested. Many developing countries lacked core surveillance capacity for early detection of clusters of the categorised syndromes in the IHR draft. For developed countries with good surveillance capacity, turning a known disease into a syndrome was highly fanciful. To paraphrase one Swedish epidemiologist, i f there is an outbreak of cholera and public health authorities know that it is cholera, why turn a known case of cholera into acute diarrhoeal syndrome or rename it something else?91 The IHR revision is still an ongoing process at the WHO. While syndrome reporting has not been totally discarded, Member States additionally will continue to have the opportunity to notify WHO of diseases specifically by name i f they choose that option. Where an entirely new outbreak occurs like the first case of ebola haemorrhagic fever, a Member State wil l have an option to notify by syndromes of the outbreak in question. The present trend at the WHO on the IHR revision is for all 'urgent international public health events' to be reported by Member States. An algorithm of what constitutes an urgent international public health event is being developed. One certain scenario is that not only outbreaks of infectious diseases will be notifiable pursuant to new IHR, public health risks like the emergence of clusters of anti-microbial resistance, and aspects of food safety-related outbreaks will also be notifiable pursuant to the IHR. ProMed-mail, see J. Woodall, "Outbreak Meets the Internet: Global Epidemic Monitoring by ProMED-Mail" (1997) 1 SIM Quarterly: Newsletter of the Society for the Internet in Medicine. 9 1 View of Dr. Johan Giesecke, Professor of Epidemiology, Karolinska Institute of Public Health, Stockholm, Sweden and formerly Head of the IHR Revision Team at the WHO, Geneva. (Interview with the author, 30 April 2000 in Geneva). 145 There are many critically important issues to be addressed i f revised IHR are to succeed as an effective infectious disease surveillance tool. Commentaries by international scholars are no less formidable on these important pre-conditions for effective IHR. Focusing on improving compliance with the IHR, Taylor makes a case for the use of supervisory mechanisms. She argued that, International supervisory mechanisms are extensively used throughout the U N system and have proven to be an effective and widely accepted form of affecting compliance with international commitments ... One effective and increasingly common form of international supervision is a system of auditing or fact-finding in which state reporting is accompanied by independent fact-finding and critical review by an independent monitoring body.... To counter the recognized weaknesses of reporting systems, some international treaty regimes supplement this procedure by an auditing process in which an independent monitoring body can obtain a measure of independent verification of state reports and critically review such reports. Fidler holds a similar view in his critique of WHO's non-use of international legal strategies.93 Despite the ingenuity of these contentions, the Provisional IHR Draft and indeed the entire ongoing IHR revision process has failed to address one critical issue: the non-existence or collapse of public health surveillance capacities in many countries and the enormous amount of resources urgently needed to rebuild them.9 4 Global health governance in a world sharply divided by socio-economic disparities calls for increased use of regulatory mechanisms, but these regulations must address the pernicious effects of poverty and underdevelopment that plague the collapse of public health surveillance Taylor, supra note 74 at 1357 (stating that new monitoring mechanisms are now widely used by UNECSO, WIPO, ILO, UNEP and the UN Human Rights Commission). 9 3 See generally, David P. Fidler, supra note 43 at 1079. 9 4 David Fidler, supra note 12 at 73 (stating that the IHR Provisional Draft proposes expanding notification duties without confronting the dilemma of financial and technological resources facing the developing world). 146 capacity in many developing countries today. In 1993, the World Bank acknowledged that enormous resources are needed to improve public health in developing countries. The bank subsequently prescribed a minimum package of essential clinical services that would include sick-child care, family planning, parental and delivery care, and treatment of tuberculosis and sexually transmitted diseases (STDs). 9 6 In many under-developed countries - Burundi, Chad, Haiti, Guinea-Bissau and many others - foreign aid accounts for more than twenty percent of health sector spending.97 What is needed therefore is a re-focusing of legal regimes that would emerge in the global health context to emphasise incentives for compliance. As stated by Fidler, Today, the attention being generated on emerging and re-emerging infectious diseases, comes mainly from the developed world, which fears the spread of infectious diseases from the developing world ... Developing states need massive financial and technical assistance to deal with endemic diseases more than rules to prevent their diseases from travelling to the developed world. 9 8 The inseparable linkage between IHR, collapse of public health infrastructures, trade and other economic embargoes during outbreaks raises the question of incentives for compliance. To paraphrase Thomas Franck, why do powerful nations obey powerless rules?9 9 Incentives100 remain one of the factors that induce compliance. Leading Although I will address this argument in detail in the concluding chapter where I discuss a proposal for a global public health fund, I have also dealt with it in another forum with respect to compliance with WHO's International Health Regulations, See O. Aginam, "Are We Our Brother's and Sister's Keepers: Africa and Public Health Challenges in a Divided World" (Unpublished; Paper presented at the Berkeley/Stanford Joint Center for African Studies Spring Conference, "Health & Society in Africa", April 24, 1999, Stanford University, USA) (on file with the author). 9 6 World Bank, World Development Report 1993: Investing in Health (New York: Oxford University Press, 1993) 7. 97 Ibid. 9 8 David P. Fidler, "Mission Impossible? International Law and Infectious Diseases" (1996) 10 Temple International & Comparative Law Journal 493 at 500. 9 9 Thomas M . Franck, The Power of Legitimacy Among Nations (New York: Oxford University Press, 1990)3. 1 0 0 In this context, I use "incentives" broadly to include tangible benefits - financial, technical and human resources; and intangible benefits - health as a public good and a psychological feeling that compliance 147 international lawyers have explored the philosophical and jurisprudential dimensions of obligation in the international system. The erudition of Oscar Schachter, Louis Henkin, and Thomas Franck in this area of international scholarship is remarkable. In a seminal article published in 1968, Schachter enumerated thirteen theories often used by international lawyers as the basis of international obligation, and suggested that "in all these cases the traditional sign-posts of legal obligation have limited utility, at the very least they call for further analysis".101 Louis Henkin argued that the threat of sanctions is not always the primary reason why states observe or disobey international rules. States will comply with international law i f it is in their best interest to do so. They will disregard law or obligation i f the advantages of violation, on a scale of balance, outweigh the advantages of observance. Thomas Franck's fairness discourse in the international system synthesizes the imperatives of determinate/unambiguous rules with distributive justice; international law's fairness in the distribution of global resources anchored on the Rawlsian scheme of "moderate scarcity".1 0 3 Applying these views analogously to the IHR, what incentives in the IHR would induce WHO Member States to comply with their provisions? This question is complex with an international obligation speaks good of a country as a respectable member of the international community. Although Thomas Franck posits his entire treatise on determinacy as the primary reason why states obey international law, he also noted that the international system must strive to tackle fair global distribution of 'scarce but moderate resources'. See T.M Franck, Fairness in International Law and Institutions (Oxford: Clarendon Press, 1995) 95. 1 0 1 O. Schachter, "Towards a Theory of International Obligation" (1968) 6 Virginia Journal of Int'l Law 301 (enumerating the following basis of obligation in international legal scholarship: consent of states, customary practice, a sense of "rightness" - the juridical conscience, natural law and natural reason, social necessity, the will/consensus of the international community, direct intuition, common purposes of the participants, effectiveness, sanctions, systemic goals, shared expectations as to authority, and rues of recognition). 1 0 2 Louis Henkin, How Nations Behave: Law and Foreign Policy (New York: Columbia University Press, 1979) 49. For the IHR, it is a matter of argument whether the advantages of observance - the formulation of maximum health measures by the WHO - outweigh the disadvantages: trade, and other economic embargoes that could cost a country billions of dollars. 103 See generally, Thomas M . Franck, supra note 99. 148 because no single factor on its own can radically change the behaviour of the WHO Member States with respect to the IHR. While the WHO needs to step up its present ineffective enforcement strategy of the IHR, it must also strive to develop sufficient incentives to induce compliance by Member States. The present negative rewards of notification: trade, travel and economic embargoes must give way to a positive rewards -human, financial and technical assistance to WHO Member States that lack core public health capacity to deal with outbreaks. During outbreaks, the WHO must rigorously defend its global health mandate where other Member States impose unnecessary trade and travel embargoes outside the measures issued by the WHO. Regrettably the WHO has consistently shied away from this important advocacy strategy and has used it only once to fight the E U ban of fresh fish from East Africa following a cholera .outbreak in certain East African countries.104 A combination of this type of positive advocacy and assured promise of incentives may significantly improve the 'compliance pull' of the new IHR. During the EU ban of fresh fish from East Africa as a result of a cholera outbreak in three East African countries, WHO exercised its global health mandate by issuing a strong statement condemning the EU ban as a punitive measure not based on any sound epidemiological principles. The WHO statement influenced the EU to lift the ban and to settle the case that was already heading to the dispute settlement panel of the World Trade Organization. See WHO, "Director-General Says Food Import Bans Are Inappropriate for Fighting Cholera", WHO Press Release WHO/24, February 1998. 149 (II) SECOND L E V E L OF INQUIRY: WHO FRAMEWORK CONVENTION ON TOBACCO CONTROL (FCTC) Negotiations by WHO Member States for a Framework Convention on Tobacco Control (hereafter "FCTC") directly implicate the relevance of international law in global health governance. In May 1999, the World Health Assembly, the governing body of the WHO, adopted (by consensus) Resolution WHA52.18 urging the Director-General of WHO to start a process of multilateral negotiations on a WHO Framework Convention on Tobacco Control. 1 0 5 In its 53-year history, the FCTC process is the first time that WHO is exercising its treaty-making powers under Article 19 of its Constitution. Tobacco use is one of the leading causes of preventable deaths, and a leading contributor to burdens of disease globally. 1 0 6 There are over 1.25 billion smokers in the world, and it is estimated that about four million people die yearly from tobacco-related diseases. Although tobacco use is a leading cause of premature death in industrialized countries, the epidemic of tobacco addiction, disease and death is continuing to shift rapidly to developing countries.107 Leading tobacco multinationals targeted growing markets in Latin America in the 1960s, the newly industrialized economies of Asia (Japan, The Republic of Korea, Taiwan and Thailand) in the 1980s, and have increasingly 1 0 5 World Health Assembly, Resolution WHA52.18 "Towards a WHO Framework Convention on Tobacco Control", Geneva, World Health Organization, 1999. 1 0 6 C L Murray & A.D Lopez, (eds.), The Global Burden of Disease: A Comprehensive Assessment of Mortality and Disability From Diseases. Risk Factors in 1990 and Projected to 2020 (Cambridge, MA: Harvard School of Public Health on behalf of the World Health Organization and The World Bank, 1996), C L Murray & A.D Lopez, "Alternative Projections of Mortality and Disability by Cause 1990-2020: Global Burden of Disease Study" (1997) 349 Lancet 1498. 107 ibid. See also A.L Taylor, "An International Regulatory Strategy for Global Tobacco Control" (1996) 21 Yale J. Int'l. Law 257 (stating that the absence of effective domestic regulation of tobacco in developing countries has created a lucrative opportunity for transnational tobacco companies to target such countries. 150 targeted women and young persons in Africa in the 1990s. As succinctly put by Fidler, "Western tobacco companies succeeded in riding the waves of international trade law, liberal triumphalism and globalizaing Western culture in penetrating the markets and lungs of millions of people in the developing world". 1 0 9 It is now increasingly evident that a 'double jeopardy' looms large for developing countries because the burden of a tobacco epidemic will be added to their already heavy morbidity and mortality burdens from communicable diseases like malaria and TB. Today a majority of smokers live in developing countries (800 million); most are men (700 million) and 300 million are Chinese. At current levels of consumption, the tobacco epidemic is expected to kil l up to 8.4 million people per year by 2020, with 70% of these deaths occurring in developing nations. If current consumption patterns remain unchecked, within the next 30]years tobacco use will be the leading cause of premature deaths world-wide. 1 1 0 Tobacco use is medically associated with a range of diseases and fatal health conditions including lung and bladder cancers, heart diseases, bronchitis and emphysema, and increased antenatal and prenatal mortality.1 1 1 WHO states that the nature of the smoking epidemic varies from country to country. In developed countries, cardiovascular disease - particularly ischaemic heart disease - is the most common smoking-related In many of the poorer states, aggressive tobacco promotion by the tobacco industry and Western states simply overwhelms underfunded national tobacco control efforts). 1 0 8 G.N Connoly, "Worldwide Expansion of the Transnational Tobacco Industry", (1992) No.2 Journal of the National Cancer Institute Monographs 29. 1 0 9 David P. Fidler, "Neither Science Nor Shamans: Globalization of Markets and Health in the Developing World", (1999) 7 Indiana Journal of Global Legal Studies 191 at 201. 1 1 0 Allyn L. Taylor & D. Bettcher, "WHO Framework Convention on Tobacco Control: A Global Good for Public Health", (2000) Vol. 78 No.7 The International Journal of Public Health (Bulletin of the World Health Organization) 920 at 923 citing C L Murray & A.D Lopez, "Assessing the Burden of Disease that can be Attributed to Specific Risk Factors", in WHO Report of Ad Hoc Committee on Health Research Relating to Future Intervention Options, Investing in Health Research and Development (Geneva: WHO, 1996). nxIbid. 151 cause of death. In populations where cigarette smoking has been common for several decades, about 90% of lung cancer, 15-20% of other cancers, 75% of chronic bronchitis and emphysema, and 25% of cardiovascular disease at age's 35-69 years are attributable to tobacco. Tobacco-related cancer constitutes 16% of the total incidence of cancer cases - and 30% of cancer deaths - in developing countries, while the corresponding figure in developed countries is 10%.' 1 2 Smoking is also associated with about 12% of all tuberculosis deaths. WHO suggests that this could be because a lung damaged by tobacco may offer a supportive environment for the infectious tuberculosis bacillus. 1 1 3 For non-smokers, inhalation of tobacco smoke - passive or second hand smoking - poses serious health risks. Exposure to other people's smoking is associated with a risk of lung cancer, and several other health ailments in children - infant death syndrome, low birth weight, intrauterine growth retardation, and children's respiratory disease.114 The political economy of tobacco and its regulation poses difficult challenges not because a tobacco epidemic is more complex than the series of similar transnational problems that have been effectively regulated in the past decades. It is so because the WHO-FCTC wil l confront very difficult questions on a number of issues: liberalization of global trade rules, the powerful influence and enormous wealth of tobacco multinationals as evidenced by their aggressive marketing strategies world-wide, the economic dependence of some developing world economies on tobacco farming as 1 1 2 WHO, "Health Consequences of Tobacco", in WHO, The World Health Report 1999: Making a Difference (Geneva: WHO, 1999) 66. 113 ibid. 114 ibid. For a more detailed study of tobacco smoke on children, See WHO-Tobacco Free Initiative, International Consultation on Environmental Tobacco Smoke (ETS) and Child Health (Consultation Report). 11-14 January 1999 (Geneva: WHO-Tobacco Free Initiative, 1999) enumerating the following: respiratory health and middle ear disease, pneumonia, worsening of asthma, foetal growth, sudden infant death syndrome (SIDS), neuro-developmental effects, cardiovascular effects, and childhood cancers as the medical effects of tobacco smoke on children. 152 foreign exchange earner,115 and the complexity of harmonising cigarette taxes, policies and advertisements within domestic jurisdictions, and multilaterally. A global tobacco treaty could therefore easily bump into the global trade arena where the World Trade Organization (WTO) now holds sway as a strict enforcer of age-long trade rules such as 'national treatment' and 'most favoured nation' principles. 1 1 6 Article XX(b) of the General Agreement on Tariffs & Trade (GATT) provides that trade-restricting measures necessary to protect human health are justifiable i f those measures do not constitute arbitrary or unjustifiable discrimination between countries. In practice, striking the required delicate balance between trade and public health, especially with tobacco, has proved recondite. A case in point is the Thai Cigarettes Case (United States v. Thailand),1 1 7 where the United States challenged - before a GATT panel - the prohibition of importation of foreign cigarettes by Thailand as an unjustifiable and discriminatory trade restriction that violated (national treatment principle) Article X I of the GATT. The US argued further that the real objective of the Thai tobacco ban was not the protection of public health in Thailand but to create a monopoly for Thai tobacco and protect Thai-made cigarettes from foreign competition. Thailand relied on Article XX(b) of the GATT and argued that the import ban was designed to protect public health in Thailand; 1 1 5 Zimbabwe, Malawi, Kenya and many other countries in Africa, and in South and Central America are tobacco growing and exporting countries. The WHO is now holding talks with the Food & Agriculture Organization of the United Nations (FAO) and the World Bank to develop an effective and workable crop substitution policy for these countries. Detailed scientific study as well as financial and technical assistance is needed to substitute other cash crops for tobacco in these countries. 1 1 6 The aim of these two related trade rules is to prevent discrimination against imported goods in the domestic markets of WTO Member States. Based on the national treatment principle, a WTO Member State shall not treat a foreign company less favourably than its national companies and shall accord imported goods or goods made by foreign companies the same treatment it gives to goods manufactured by national companies. Based on the most favoured nation principle, a WTO Member State shall extend the best tariffs and policies it gives to a trading partner to all other WTO member countries. 1 1 7 Thailand - Restrictions on Importation of and Internal Taxes on Cigarettes, Adopted November 7 1990, GATT Doc. DS10/R, BISD 37S/200. 153 smoking was harmful to health, and opening the Thai market to imported cigarettes would lead to more smoking, deaths and increased medical costs. Rejecting the argument of Thailand, the trade panel ruled that Thailand's practice of permitting the sale of domestic cigarettes while not permitting the importation of foreign cigarettes was an inconsistency with the General Agreement that does not come within the ambit of public health exception in Article XX(b). It appears that WHO's Tobacco Free Initiative, the unit responsible for the FCTC, is versed in the difficult complexities of the unfolding tobacco-public health-international law dynamic with respect to the WHO's tobacco treaty. As argued by two scholars actively involved in the FCTC process, trade liberalization and market penetration have been linked to a greater risk of increased tobacco consumption, particularly in low-and middle-income countries.. .The tobacco industry has also taken advantage of direct forms of market penetration in cash-hungry governments of poor countries via direct foreign investment, by either licensing with a domestic monopoly in joint ventures, or other strategic partnering with domestic companies.... As the vector of the tobacco epidemic, the tobacco industry is well aware of the characteristics of globalization and is attempting to manipulate globalization trends in its favour.1 1 8 Notwithstanding these difficult questions bordering on trade liberalization and public health consequences of tobacco use, negotiations for WHO's FCTC have made considerable progress. In May 1999, the World Health Assembly established a working A.L Taylor & D. Bettcher, supra note 110 at 924. Dr. Douglas Bettcher is the Co-ordinator of the Framework Convention on Tobacco Control Team at WHO headquarters, Geneva. Dr. Allyn Taylor is External Legal Adviser, Tobacco Free Initiative of WHO, and Adjunct Professor of Health Policy at Johns Hopkins University. See also A.L Taylor, supra note 107 at 257 (arguing that the tobacco multinationals have focused not only on gaining entry into closed national markets throughout the world, but also on blocking the imposition of national regulations that restrict the advertising or sale of cigarettes. Political pressure by major Western tobacco-exporting states, particularly the United States, has forced open markets and expanded advertising in importing countries. Western pressure has also led to a number of changes in the developing and newly industrialised countries that have reduced the price and increased the demand for cigarettes). 154 group to analyze potential elements to be included in the tobacco treaty, and an Inter-Governmental Negotiating Body (open to WHO's 191 Member States) to negotiate and draft the proposed WHO Framework Convention on Tobacco Control and related protocols.1 1 9 The Tobacco Free Initiative of the WHO prepared background documents120 for the working group enumerating possible elements to be covered by the Framework Convention1 2 1 and other elements of subsequent protocols.122 Draft elements of the Framework Convention include preamble, principles and objectives, obligations, institutions, implementation mechanisms, law making processes and final clauses (signatories, reservations, ratification and withdrawal). Potential elements for subsequent related protocols include: cigarette prices and harmonization of taxes, measures against smuggling, duty-free tobacco products, tobacco advertising and sponsorship, reporting of toxic constituents of tobacco products, packaging and labelling, tobacco and agricultural policy, sharing of information. Negotiations on these issues by the inter-governmental negotiating body of over 135 WHO Member States are almost concluded.1 2 3 As the. WHO Framework Convention on Tobacco Control is expected to be concluded and presented to World Health Assembly, "Towards a WHO Framework Convention on Tobacco Control", WHA Resolution52.18 (1999). 120 See for instance, Daniel Bodansky, "What Makes International Agreements Effective? Some Pointers to the WHO Framework Convention on Tobacco Control", (FCTC Technical Briefing Series, WHO/NCD/TFI/99.4 (Geneva: WHO, 1999); Daniel Bodansky, "The Framework-Protocol Approach" (FCTC Technical Briefing Series, WHO/NCD/TFI799.1 (Geneva: WHO, 1999); Luk Joossens, "Improving Public Health Through an International Framework Convention on Tobacco Control"(FCTC Technical Briefing Series WHO/NCD/TFI/99.2 (Geneva: WHO, 1999); INFACT, "Mobilizing NGOs and the Media Behind the International Framework Convention on Tobacco Control: Lessons From the Code on Marketing of Breast-Milk Substitutes and Conventions on Landmines and the Environment" (FCTC Technical Briefing Series WHO/NCD/TFI/99.3 (Geneva: WHO, 1999), and Anita M . Halvorssen, "The Role of National Institutions in Developing and Implementing the WHO Framework Convention on Tobacco Control" (FCTC Technical Briefing Series WHO/NCD/TFI/99.5 (Geneva: WHO, 1999). 1 2 1 WHO, "Elements of a WHO Framework Convention on Tobacco Control", A/FCTC/WG1/6 (1999). 1 2 2 WHO, "Subjects of Possible Protocols and Their Relation to the Framework Convention on Tobacco Control", A/FCTC/WG1/3 (1999). 1 2 3 Over 150 delegates from these countries met in Geneva in October 2000, April and October 2001 for negotiations. 155 the World Health Assembly in May 2003, it is too early in the day to forecast its potential success or failure. Nonetheless there are two very important facts that have emerged from the FCTC process. First, the FCTC is based on infallible epidemiological evidence that tobacco is harmful to health,1 2 4 and therefore needs to be globally regulated because of the global networks of tobacco conglomerates. According to WHO Director-General Gro Harlem Brundtland, "we need an international response to an international problem". 1 2 5 Secondly the FCTC represent a radical change of approach by the WHO in pursuing its global public health mandate. After decades of neglect of international law, WHO has decided to exercise its constitutional and treaty-making power to negotiate a legally binding multilateral treaty for the first time in over fifty years of its history. The WHO FCTC and related protocols - i f carefully negotiated to tackle most of the complex tobacco issues - may not be just another international treaty but as the WHO Director-General stated, "a product and a process and a public health movement... a pathfinder in public health".1 2 6 ;. , , ; ; . The WHO has now stepped into a terrain that the organisation historically is unfamiliar with: the use of international treaties to tackle a multilateral health issue. It is therefore useful to conduct a comparative assessment of similar mechanisms used in the governance of multilateral issues in the environmental context. This comparative W H O has stated that "since about 1950, more than 70,000 scientific articles have left no scientific doubt that prolonged smoking is an important cause of premature mortality and disability world-wide". See WHO, The World Health Report 1999: Making a Difference (Geneva, WHO, 1999) 66. See also, The World Bank, Curbing the Epidemic: Governments and the Economics of Tobacco Control (Washington, DC: The World Bank, 1999). 1 2 5 Dr. Gro Harlem Brundtland, Speech at Seminar on Tobacco Industry Disclosures, WHO, Geneva, 20 October 1998 (on file with this author). See also A . L Taylor, supra note 107 at 257 (stating that the global tobacco epidemic is international in origin, has international repercussions, and necessitates collaborative, multilateral action). 1 2 6 W H O Director-General Gro Harlem Brundtland, Speech at the WHO's International Conference on Global Tobacco Control Law: Towards a W H O Framework Convention on Tobacco Control, New Delhi, India, 7 January 2000 (On file with this author). 156 overview is necessary because WHO's Framework Convention on Tobacco Control is being patterned after a similar framework convention process on global environmental issues: climate change and ozone depletion. Also I have argued that the disparities between the developed and developing worlds compel a re-focusing of emergent global health regimes to resuscitate collapsing or non-existent public health surveillance structures across the developing world. Both the IHR and FCTC - WHO's two governance mechanisms - must grapple with the persistent question of financial and technical assistance to developing countries. Global environmental treaties, though hardly infallible, have addressed these questions more elaborately. WHO, in its enforcement of a revised IHR and FCTC (when it is concluded) would have to learn the resource-sharing dynamics of global environmental regimes being enforced by other multilateral organisations. I now proceed to assess this resource-sharing formula under the Convention for the Protection of the Ozone Layer and the World Bank's Global Environmental Facility (GEF). 157 F: GLOBAL PUBLIC H E A L T H AND GLOBAL ENVIRONMENTAL GOVERNANCE FROM A COMPARATIVE PERSPECTIVE: LESSONS FROM THE OZONE LAYER CONVENTION AND GLOBAL ENVIRONMENTAL FACILITY I: UNITED NATIONS CONVENTION FOR THE PROTECTION OF THE OZONE LAYER 1985127 In the late 1970s and early 1980s, it became obvious that ozone depletion1 2 8 was a serious global issue that neither unilateral nor regional approaches could solve. 1 2 9 After many years of intensive diplomacy under the auspices of the United Nations Environment Programme (UNEP), 1 3 0 the Vienna Convention for the Protection of the Ozone Layer was adopted on March 22, 1985. 1 3 1 The Ozone Convention is basically a framework. It contains no legally binding commitments for countries to cut the levels of their CFC emissions because as Birnie and Boyle pointed out, it was difficult for states to agree in 1985 on proposals for more specific measures to control ozone depletion.132 The convention noted that ozone depletion was a global problem that required international co-operation because of the For a full text of the Ozone Convention, See (1987) 26 International Legal Materials 1529. 1 2 8 According to A. Kiss & D. Shelton, International Environmental Law (New York: Transnational Publishers, 1991) at 231, "Ozone is a form of oxygen, containing one more atom than the oxygen breathed in the atmosphere. Ozone produces harmful consequences at certain altitudes, particularly on plants. In contrast, stratospheric ozone, whose strongest concentrations are found between 20 and 25 kilometres above earth, filters a part of the sun's ultraviolet radiation which otherwise would cause harm to different forms of life on earth". 1 2 9 A. Kiss & D. Shelton, Id., at 232 citing a study by the United Nations Environment Programme (UNEP), and also A. K Biswas, The Ozone Layer (1979) state that because all living beings have lived under the protection of the ozone layer, and the ozone plays a critical life-support role for all living beings on earth, its depletion risks an increase in the number of human skin cancers, harm to eyes, and other unforeseen biological consequences. 130 Ibid, at 232 observing that "the main cause for reduction of the ozone layer is the utilization of chlorofluorocarbons. ...The emissions of chlorfluorocarbons, if they continue at 1977 levels, will result within twenty years in a five percent reduction in the ozone layer". 131 See R. Benedick, Ozone Diplomacy (Cambridge, MA., 1991). 1 3 2 Patricia W. Birnie & Alan Boyle, Basic Documents on International Law & the Environment (Oxford: Clarendon Press, 1995) 211. 158 serious risks it posed to human health and the environment. It contains general obligations for co-operation between states for further research, systematic observation, and exchange of information.133 Like most framework conventions, the Ozone Convention established basic principles and a permanent organ for further negotiation of related binding protocols. In 1987, the Montreal Protocol on Substances that Deplete the Ozone Layer was adopted.134 The Montreal Protocol and its subsequent London 135 Amendments set an important precedent in governance of global issues because of the special treatment given to developing countries.136 The London Amendments endorsed a multilateral fund regime consisting of voluntary contributions from industrialised to 137 developing countries. Because of the enormous costs involved in phasing out certain CFCs and other substances by 2040, the Multilateral Fund covers incremental costs incurred by developing countries that switch to ozone-friendly technologies. The Multilateral Fund regime was instrumental in creating a functional system..Since the fund became operational in 1991, it has financed the development of 39 country programs. Nine of these programs represent approximately twenty percent of controlled substances by developing countries - including China, Mexico, Brazil, Malaysia, Egypt and 138 Jordan. The main organ of the Fund is an Executive Committee of 14 members, seven of whom are selected by developing country States Parties to the Montreal Protocol, and the other seven by industrialized States Parties. The Committee monitors the 1 3 3 Article 2. 1 3 4 For a text of the Montreal Protocol, See (1987) 26 International Legal Materials 1550. The Montreal Protocol came into force on 1 January 1989. 1 3 5 The London Amendments to the Montreal Protocol entered into force on 19 August 1992. 1 3 6 Bimie & Boyle, supra note 132 at 211. 1 3 7 Kiss and Shelton in the 1994 supplement to their treatise asserted that "for the first time an international environmental treaty called for financial transfers from industrialized to developing countries", International Environmental Law (1994 Supplement) (New York: Transnational Publishers, 1994) 125. 1 3 8 ibid. 159 implementation of operational policies and guidelines, the disbursement of resources, and develops the budget of the Fund and eligibility criteria for funding. Decisions are taken by consensus, and i f no consensus is reached, by a two-thirds majority of the Parties 139 present and voting. Despite the limits of the obligation to report information pursuant to Article 7 of the Protocol, the Ozone Convention and the Montreal protocol have contributed positively to the governance of a global environmental problem: ozone depletion. The view has been expressed that both the Ozone Convention and the Montreal Protocol "have created one of the most elaborate and sophisticated models of international control and supervision for environmental purposes".140 II: THE WORLD BANK: INSTRUMENT ESTABLISHING THE GLOBAL ENVIRONMENTAL FACILITY (GEF) 1 4 1 The Global Environmental Facility was originally set up in 1990 as a three-year pilot study between the World Bank, the United Nations Environment Programme (UNEP) and the United Nations Development Programme (UNDP) with an initial sum of $1.2 billion. Its objective was grant financing of global environmental projects. Some scholars assert that the multilateral fund regime of the Montreal Protocol on Substances that Deplete the Ozone Layer influenced the G E F . 1 4 2 After the United Nations Commission on Environment and Development (UNCED) process, the Rio Conference on Environment and Development 1992 - an aftermath of U N C E D - adopted a range of 139 ibid. 1 4 0 P.W Birnie & A. Boyle, International Law & the Environment (Oxford: Clarendon Press, 1992) 411. 1 4 1 For a full text of the Instrument Establishing the Global Environmental Facility, See (1994) 33 International Legal Materials 1273. 1 4 2 A. Kiss & D. Shelton, supra note 137 at 47. 160 global environmental treaties and soft-law declarations. At Rio, treaties on climate change144 and biodiversity 1 4 5 were opened for signature. A non-binding statement of principles on global forests was declared.1 4 6 Agenda 21 - a program of action by the international community addressing major environmental and development priorities leading into the 21 s t century was adopted.147 The implementation of these treaties and the 'soft-law' declaration posed enormous financial and technical challenges in most countries. As a result, a decision was taken at the Rio Conference on Environment and Development to restructure the existing Global Environmental Facility (GEF) in accordance with the principles of universality, transparency and democracy. A new Instrument was adopted in March 1994. Birnie and Boyd state that "its general function is to provide funding to help developing countries meet agreed incremental costs of measures taken pursuant to U N C E D Agenda 21 to achieve agreed global environmental benefits with regard to climate change, biological diversity, international waters, and ozone layer depletion. It is also specifically designated for these purposes in the Ozone Layer, Climate Change and Biological Diversity Conventions".148 The GEF secretariat is located at the World Bank. The Bank uses the facility to assist countries whose annual For a text of the recommendations of the Rio Conference, see The United Nations, Report of the U N C E D . (June 1992). 1 4 4 United Nations Framework Convention on Climate Change, New York, 9 May 1992; reproduced in 31 International Legal Materials (1992). 1 4 5 United Nations Convention on Biological Diversity, Nairobi, 22 June 1992, Reproduced in (1992) 31 International Legal Materials 818. 1 4 6 Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of all Types of Forests, 13 June 1992, A/CONF.151/6/Rev.l; reproduced in 31 International Legal Materials (1992). 1 4 7 Agenda 21 is a volume with 40 chapters, 115 topics covered in 800 pages. It has four main parts covering socio-economic dimensions, conservation and resource management, civil society participation, and implementation mechanisms. 148 Supra note 132 at 666. See also, A . Kiss & D. Shelton, supra note 137 at 47 (stating that GEF is intended to assist developing countries in addressing four global environmental issues: climate change, stratospheric ozone depletion, loss of biological diversity, and pollution of international waters) 161 per capita income is below $4,000. UNDP and UNEP are involved with training, technical assistance, research and maintenance of consistency with international environmental treaties and norms. GEF has funded many environmental projects in developing countries and has been hailed by scholars for its equitable treatment of developing countries based on the concept of "common but differentiated responsibility".149 The governing body of GEF is a Council composed of thirty-two members with a balance of developed and developing countries. Decisions require a double majority of 60 per cent of all members plus a majority of 60 per cent (by contribution) of all donors. Notwithstanding its imperfections, the GEF has emerged as a major funder of global environmental issues that threaten all of humanity. Global environmental governance - through the GEF and Montreal Protocol - has used international treaties to foster co-operation and consensus in a divided world. Environmental problems such as climate change and ozone depletion are similar to public health problems such as infectious diseases and the tobacco epidemic. They are all global issues that threaten populations irrespective of national boundaries. It is therefore imperative to explore the adaptation of governance mechanisms like the GEF and Montreal Protocol in the global health context. For a detailed discussion of GEF, see R. Ricupero, "Chronicle of a Negotiation: The Financial Chapter of Agenda 21" (1993) 4 Colorado J. of Int'l. Envt'l. Law & Policy 81, D. Reed (ed.), The GEF: Sharing Responsibility for the Biosphere (Washington DC: 1993). 162 G : S U M M A R Y O F T H E A R G U M E N T S I have argued that 'multilateralisation' of public health in a world order composed of sovereign nation-states is prone to the complexities of politicisation based on strategic and other interests of countries. Part of this politics is fuelled by South-North disparities as illustrated by the nuclear weapons debate at the World Health Assembly. A plethora of other political issues, as I have argued, inhibits contemporary multilateral health co-operation. Nonetheless, emerging perspectives have failed to explore the role(s) that international law has long begun to play in forging consensus on multilateral environmental issues and to seek ways to create a similar role for international law in the global health context. With its current revision of the International Health Regulations (IHR) and ongoing negotiations for a global tobacco treaty, WHO seems to be waking up from decades of neglect of international law. The success of each of these emerging legal strategies - - IHR. and FCTC - requires an enormous amount of human, technical and; financial resources within countries, and a sustained advocacy and political will on the part of WHO. The principle of common but differentiated responsibility on which both the GEF and Montreal Protocol are based recalls the often-ridiculed maxim of "in terms of contribution; from each according to his wealth, and in terms of distribution; to each according to his need". A l l of humanity is now closely interconnected in a world fast becoming a single germ pool. As a result, poverty, underdevelopment, or a classical interpretation of state sovereignty should never be used as a 'sword' to kil l multilateral solutions to global problems. Conversely, the GEF and Montreal Protocol have shown that poverty and under-development between countries can indeed serve as a 'sword' with which to attack transnational threats. Though hardly infallible, it is important to note 163 that those environmental governance mechanisms (GEF and Montreal Protocol) emerged through the instrumentality of international law. International law itself may not provide the sole miraculous road-path to a desired global health sanctuary, but it must play a formidable role in the dynamics of microbe-humanity interaction. Politicisation of multilateral initiatives has been a dominant phenomenon of internationalism from earliest historical accounts, and will remain an important factor in coming decades. Nonetheless, within the global social milieu of public health, poverty, under-development and politics, international law emerges as an important post-ontological tool to strategize the contemporary turbulent multilateral health order based on an equitable distribution of 'moderate but scarce'multilateral resources. •> . . 164 CHAPTER FIVE CASE STUDY: GLOBAL MALARIA POLICY AND ETHNO-PHARMACOLOGICAL-TRADITIONAL MEDICAL THERAPIES FOR MALARIA IN AFRICA A: OVERVIEW OF THE ARGUMENT This chapter discusses global malaria control policy and its relationship with 1 2 "ethno-medicine" or "ethnopharmacology" in Africa. The relevance of ethno-medical or ethnopharmacological approaches to a tropical disease like malaria remains controversial despite volumes of seminal works, series of international conferences and elaborate multilateral eradication/control strategies the disease has generated in past decades. One source of this controversy is science. In certain aspects of Western scientific discourse, African traditional medicine - including ethno-medical malaria therapies - is easily dismissed as unscientific belief, magic, superstition, ritual, barbarism, witchcraft, or sorcery. Staugard argues that throughout history, an ambitious search for physical, social and mental well-being has pre-occupied the minds of humankind in all cultures. As a result, two systematic responses to ill-health and disease have since 1 Ethnomedicine is defined as "the study of different ways in which people of various cultures perceive and cope with illness, including making a diagnosis and obtaining therapy", see H. Fabrega, "The Need for an Ethnomedical Science", (1975) Vol. 189 Science No.4207 at 969. 2 Reacting to the question, what is ethnopharmacology?, Peter A.G.M. De Smet, in his famous work Herbs. Health and Healers: Africa as Ethnopharmacological Treasury (Berg en Dal, The Netherlands: Afrika Museum, 1999) p l l states that; "from time immemorial, man has valued the plant kingdom and animal kingdom as sources of bioactive products.... Some of these traditional plant and animal substances are purely magical. They have no relevant pharmacological (i.e. drug-like) effects, which can be produced in a laboratory setting. Many substances have a measurable pharmacological action, however, which corresponds well to their traditional application. The scientific discipline which explores this pharmacological basis of traditional drugs and poisons is called ethnopharmacology. Its focus ranges from the first-hand observation of native drug practices (by early travellers and anthropologists) through the identification of crude ingredients and their constituents (by botanists, zoologists and chemists) to the evaluation of wanted and unwanted drug effects (by pharmacologists and toxicologists)". 165 emerged. One is the modern system of medicine founded by Hippocrates and his pupils on the Greek Island of Kos, and the other is traditional medicine, which is as old as humankind in all cultures.3 From ancient times, the two systems have co-existed, albeit with hostility. Staugard states that modern medicine has often demonstrated its hostility towards traditional health care by categorising it either as "quackery" or "witchcraft".4 This categorisation arises from the often mistaken Western conception of traditional medicine that sees the herbalist, diviner, magician, and faith healer as belonging to one single and indivisible health delivery compartment devoid of methodological or analytical scientific investigation. Before the 1970s, Sindiga observed that most studies concerned with African traditional medicine linked it with beliefs, religion and rituals. Such studies, pioneered by the structural functional school of British anthropology - • uncritically concluded that African disease aetiologies were basically moral, social and devoid of any scientific insights and assessment.5 In a recent work, De Smet wrote that "many Western doctors and pharmacologists believe that ethnopharmacology yields nothing but armchair amusement".6 In contrast, since 1972, the World Health Organisation has consistently called for an effective integration of traditional medicine into the fabrics of national health care systems of Member States.7 Notwithstanding WHO resolutions, however, multilateral health policy still suffers a serious 'regime 3 F. Staugard, Traditional Medicine in Botswana (Gaborone: Ipelegeng Publishers, 1985) 5. 4 Ibid. 5 See Isaac Sindiga, "African Ethnomedicine and Other Medical Systems", in I. Sindiga, et al., (eds.), Traditional Medicine in Africa (Nairobi: East African Publishers, 1995) 16, citing British scholar E.E Evans-Pritchard's, Witchcraft. Oracle and Magic Among the Azende (Oxford: Oxford University Press, 1937) as an example of such perspective of African disease aetiology. 6 De Smet, supra note 2 at 11. 7 The 1972 World Health Assembly Resolution WHA29.72 noted the huge manpower reserve constituted by traditional medical practitioners. The 1977 World Health Assembly Resolution WHA30.49 called on Member States to explore the utilization of traditional medicine in their health care systems. The 1978 the World Health Assembly Resolution WHA31.33 noted the medicinal value of medicinal plants in the health systems of many developing countries. 166 deficit' on the interaction of African ethnopharmacological practices and multilateral malaria control policy. In our time and age, there are two persuasive and inexorably linked reasons why ethno-medicine is relevant to global malaria policy. The first is global multiculturalism and its implications for the health therapy of populations across various cultures of the world. The second reason relates to the cost and affordability of health care in Africa where ethno-medical therapies for malaria may be readily available at a cost the community can afford while orthodox (Western) malaria medicines are not. In a multicultural world, every society - in the developing world and elsewhere - deals with illness and disease in a variety of ways. Ethno-medicine has no unifying' theme across societies; thus the therapies it provides vary from one society or culture to another.8 Ethno-medical knowledge of plants by indigenous people across societies and cultures has, long served as crucial sources of medicines either directly as therapeutic agents, as starting points for the elaboration of more complex semi-synthetic compounds or as synthetic compounds.9 In most African societies, multiculturalism has given rise to what some scholars call "medical pluralism" - the existence in a single society of differently designed and conceived medical systems.10 Such systems exist together, and may either compete with, 8 For a study of ethno-medicine across various societies especially in the developing world, see K . Appiah-Kubi, Man Cures. God Heals: Religion and Medical Practice Among the Akans of Ghana (USA: Allanheld & Osmun & Co, 1981); C. Leslie & A Young, Paths to Asian Medical Knowledge (Berkeley/Los Angeles/Oxford: University of California Press, 1992); T. Dummer, Tibetan Medicine and Other Holistic Health-Care Systems (London/New York: Routledge, 1988); H . M Said, Medicine in China (Karachi: Hanidard Academy, 1965); G.E Simpson, Yoruba Religion and Medicine in Ibadan, (Ibadan: Ibadan University Press, 1980). 9 Edith Brown Weiss, In Fairness to Future Generations: International Law, Common Patrimony, and Intergenerational Equity (New York: The United Nations University/Transnational Publishers, 1989) 266. 1 0 David Phillips, Health and Health Care in the Third World (New York: Youngman, 1990) 75 defines medical pluralism as "the existence and use of a wide range of sources of medical care, traditional and modern, static and evolving". 167 or complement, one another.11 Populations in the developing world resort to both traditional medicine and Western medicine simultaneously for the same illness or at different times for different illnesses. It has been observed that "African peoples believe in traditional medicine and it is not uncommon to see patients in hospitals permitting themselves to be treated by modern medicine during the day and having recourse to the recipes of traditional medicine at night".1 2 Juxtaposing ethno-medicine with Western medicine, the holistic approach of traditional medicine to the art of healing is one important factor that has continued to endear it to many of its followers and adherents: a sizeable eighty percent of the population in most African rural areas. As persuasively argued by one scholar of ethno-medical approaches in Africa: The holistic concept in traditional medicine is commendable, in that the patient's mind and soul as well as body are considered together during treatment. ...One increasingly important aspect of the African worldview is the belief that human beings cannot be separated from nature. There is therefore no overwhelming desire to conquer the natural world or dominate it ... African worldview is eco-centric ...It binds humans and the rest of nature together I T with the same umbilical cord. Mbiti, a renowned scholar of African Religions and Philosophy, argued that diseases and misfortunes are regarded as having social and religious foundations. The treatment process must therefore go beyond merely addressing their symptoms but also their social 11 See J .M Janzen, The Quest for Therapy: Medical Pluralism in Lower Zaire (Berkeley, C A : University of California, 1978); H . Fabrega, " A Complimentary on African Systems of Medicine", in African Health and Healing Systems: Proceedings of a Symposium. P.S Yoda (ed.) (Los Angeles: Crossroads, 1982). 1 2 O. Ampofo & J.D Johnson-Romauld, "Traditional Medicine and Its Role in the Development of Health Services in Africa", Technical Discussions of the 25 t h, 26 t h & 27* Sessions of the W H O Regional Office for Africa, Brazzaville, Congo (Brazzaville: WHO, 1987) 51. 1 3 Maurice M . Iwu, "Preface", in Peter A . G . M De Smet, supra note 2 at 9. 168 implications as well as strategies to prevent their reoccurrence. Some scholars dismiss the holistic nature of traditional medicine as falsehood. As observed by Phillips, stereo-types suggest, for example, that traditional medicine is holistic, whilst modern medicine sees only the disease. This might be true in relatively isolated, small-scale societies, but in large Asian and African villages and towns, there is probably almost as much impersonal treatment by traditional healers as there is by practitioners of modern medicine. The holistic appeal of traditional medicine - that it considers the patient as a whole person, in his or her domestic and social setting - may in fact be perpetuating a false image.15 The holistic appeal of traditional medicine is a cultural-relative phenomenon just as ethno-medical therapies differ across societies and cultures. There may be instances where the relationship between the traditional healer and patient is impersonal. Nonetheless, it needs to be pointed out that, for instance in Africa, the dominant world-views as well as the concept of personhood as philosophised by scholars like Mbi t i 1 6 and Kalu 1 7 favour the holistic flavour of traditional medicine. Linked to the holistic nature of ethno-medical therapies in the developing world, is the prohibitive cost of orthodox Western malaria medicines, emergence of strains of malaria that resist available (Western) drugs, and disinterestedness of leading transnational pharmaceutical J.S Mbiti, African Religions and Philosophy (London: Heinemann, 1969) 169. See also O. Ampofo & J.D Johnson-Romauld, supra note at 12 (arguing that in Africa, disease is not just a malfunctioning of the body or an organ but essentially a rupture of life's harmony with nature). 1 5 D.R Phillips, supra note 10 at 81. 1 6 In Africa, according to Mbiti, the individual's needs, rights, joys and sorrows are woven into a social tapestry that denies singular individuality. Traditional medical practitioners symbolise the hopes of society; hopes of good health, protection and security from evil forces, prosperity and good fortune, and ritual cleansing when harm or impurities have been contracted. See Mbiti, supra note 14 pp 141 & 171. 1 7 Ogbu Kalu has argued that "...crucial to indigenous traditions is a religious cosmology with an awareness of the integral and whole relationship of symbolic and material life. Ritual practices of the cosmological ideas which underpin society cannot be separated from the daily round of subsistence practices.... By sacralizing nature, indigenous worldviews purvey an ideology which is at once more eco-sensitive, eco-musical and devoid of the harsh flutes of those who see nature as a challenge to be conquered, exploited and ruled. They see the environment not in terms of competing interests but as the playing field on which all other interests intersect". See O. Kalu, "The Gods Are to Blame", (Unpublished) 169 companies to research affordable malaria drugs because of the poor return on investment. A l l of these factors conspire to make traditional medicine relevant and popular for malaria treatment in African rural communities. Traditional medical therapies for malaria are popular in these communities primarily because of their relative cheapness as well as availability and accessibility - within these societies - of traditional healers that apply them. Using social science qualitative interviews, this chapter assesses the veracity of these facts squarely from the views and behavioural practices of populations in a Nigerian rural community. I use the emergent perspectives from these interviews to argue for an integration of traditional malaria therapies as parts of multilateral initiatives on malaria control. In sum, this Chapter argues that those traditional therapies for malaria that are popular among populations in malaria endemic areas should be moved from the periphery to the core of global malaria policy. At present, there is a sizeable volume of literature on ethno-biological/medical knowledge of indigenous populations18 across the world from an intellectual property perspective.19 The concern of this chapter is outside the realm of intellectual property of indigenous medical knowledge. I am largely concerned with fashioning an inclusive and holistic malaria globalism founded on Richard Falk's concept of "globalism-from-below" to counter the contempor