Global constitutionalism, applied to global health governance: uncovering legitimacy deficits and suggesting remedies

Abstract

BackgroundGlobal constitutionalism is a way of looking at the world, at global rules and how they are made, as if there was a global constitution, empowering global institutions to act as a global government, setting rules which bind all states and people.AnalysisThis essay employs global constitutionalism to examine how and why global health governance, as currently structured, has struggled to advance the right to health, a fundamental human rights obligation enshrined in the International Covenant on Economic, Social and Cultural Rights. It first examines the core structure of the global health governance architecture, and its evolution since the Second World War. Second, it identifies the main constitutionalist principles that are relevant for a global constitutionalism assessment of the core structure of the global health governance architecture. Finally, it applies these constitutionalist principles to assess the core structure of the global health governance architecture.DiscussionLeading global health institutions are structurally skewed to preserve high incomes countries’ disproportionate influence on transnational rule-making authority, and tend to prioritise infectious disease control over the comprehensive realisation of the right to health.ConclusionA Framework Convention on Global Health could create a classic division of powers in global health governance, with WHO as the law-making power in global health governance, a global fund for health as the executive power, and the International Court of Justice as the judiciary power.

International financial institutions and human rights: implications for public health

“…Rather than a minimalist agenda encompassing health interventions for the most vulnerable, the right to healthcare in ICESCR forms a comprehensive framework of minimal standards and progressive realisation towards the highest attainable standard of health. It offers a legitimate claim to freedoms and entitlements directly related to health, including access to quality and affordable healthcare, as well as indirectly related to health, such as access to food, water, employment, and education [ 32 ]. The ICESCR and the General Comment also enshrines these rights as national and international obligations, with the latter related to development cooperation for health [ 32 ].…”

“…It offers a legitimate claim to freedoms and entitlements directly related to health, including access to quality and affordable healthcare, as well as indirectly related to health, such as access to food, water, employment, and education [ 32 ]. The ICESCR and the General Comment also enshrines these rights as national and international obligations, with the latter related to development cooperation for health [ 32 ]. Although the IMF and World Bank have long claimed that they are concerned about the health consequences of their policy advice [ 7 , 33 ], the available evidence suggests that many loan reforms breach these obligations and are detrimental to health outcomes.…”

Вплив Діяльності Міжнародних Фінансових Організацій На Розвиток Національних Правових Систем

“…При проведенні наукового дослідження, необхідно брати до уваги те, що саме Міжнародні фінансові організації є одними з тих інструментів, завдяки яким і реалізується цей складний та багатоплановий процес. [7].…”

Legitimation and Delegitimation in Global Governance

“…This stands in contrast to the WHO. Even if the WHO could adopt conventions or agreements with respect to any matter within the WHO's competence, the use of non-binding instruments (soft law) and voluntary commitments are commonplace (Ooms and Hammonds 2016).…”