Jennifer Prah Ruger (Yale University – School of Medicine) has posted Normative Foundations of Global Health Law (Georgetown Law Journal, Forthcoming) on SSRN. Here is the abstract:
This Essay offers a normative theory of global health law. It builds on a theory of health and social justice I have long been developing and extends this theory in evaluating the role of international law in health. This theory takes human flourishing as the end goal of a global society and proposes that global health law be examined in terms of an ethical demand for health equity. This ethical demand will likely require legal instruments for realization, but it will also require individuals, states, and nonstate actors to internalize public ethical norms in support of global health goals. This Essay also argues that global health law should be examined in the contexts of international relations and global public policy and that law and policy should be linked at the global and domestic levels. Philosophical underpinnings of global health law cannot be studied separately from other global and domestic tools to reach global health equity.
This Essay comprises three parts. Part I offers normative foundations for the future of global health law and presents a theory of global health equity. Part II analyzes the role of global health law in achieving health equity, examines the effectiveness and limits of international health law, and considers the conditions necessary for the effectiveness of global health law. Part III offers an analysis of global health law vis-à-vis domestic health law and policy. The Essay concludes by arguing that solutions to global health disparities and externalities require more than international treaties, conventions, and recommendations. They require domestic health policy, law, and institutional reforms establishing sustainable, government-sponsored health systems, including universal health insurance and public-health and health-care infrastructures. Thus, the success and future of global heath law depend as much on domestic health policy and law as they do on international health law itself.
And a bit more from the text:
One such theory of global health justice, which builds on a theory of health and social justice I have advanced over the past decade,34 states that society’s obligation to maintain and improve health rests on the ethical principle of human flourishing or human capability.35 This approach has roots in Aristotle’s political theory and Amartya Sen’s capability approach,36 but it moves extensively beyond and considerably extends this work for national and global health purposes. From this perspective, health is intrinsically and instrumentally valuable; all individuals should have equal capability to be healthy. It takes the individual as the central moral unit of justice.37
Under this approach, if we value, intrinsically and instrumentally, individuals’ capabilities to be healthy, we regard deprivations of health capabilities as inequalities in individuals’ capabilities to function. Decrements in a person’s health constitute direct threats to his or her well-being and agency. Health capabilities are therefore prerequisites to other capabilities, and their moral importance calls for a sense of urgency. From this perspective, a global society and its constituent nation-states must address global health inequalities and global threats to human health. Primary moral responsibility falls on nation-states, within which health inequalities and the sources of health threats lie.38
The question then turns to what is meant by global health equity. This approach argues for the provision of capabilities for good health rather than for complete health equality, recognizing that individuals have different health capacities—producing equal outcomes is not the main goal.39 Global health equity, rather, involves equal realization of individual potential. This approach takes a shortfall rather than an attainment perspective on equality. It asserts a threshold or norm of health against which to measure gaps in health performance.40 This analysis focuses less on the accomplishments of health systems and health policies and more on what level of health should be possible and how to apply resources to attain it. Shortfall equality can help assess quantitatively how much a given society has realized its health potential and how much remains unrealized because the shortfall perspective compares the actual achievement of a given public policy or health system with the stated health norm. Achieving global health equity requires reducing shortfall inequalities in central health capabilities worldwide.41
Frequent readers of LTB will not be surprised that I find this Aristotelian approach quite congenial. By far the best thing I’ve read on this topic. Highly Recommended!