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Volume 2, Number 2—April 1996

Globalization, International Law, and Emerging Infectious Diseases

David P. FidlerComments to Author 
Author affiliation: Indiana University School of Law, Bloomington, Indiana, USA

Main Article

Table 2

Alternative international legal strategies to revising the International Health Regulations

Alternative legal strategies Possible advantages Possible disadvantages
1. WHA incorporates emerging disease control as part of the proposed World Health Charter scheduled for initial negotiations in 1997 Integrates emerging disease control measures into the overall WHO approach to international health issues a.Emerging disease control would not be primary focus b.World Health Charter is likely to be more aspirational than obligatory
2. WHA adopts an emerging disease-specific convention under Article 19 of the WHO Constitution a.Avoids IHR model b.Has potential to set out comprehensive global approach to emerging diseases a.WHA has no experience with using Article 19 b.Large multinational treaties tend to contain general obligations rather than specific duties
3. States negotiate a framework multilateral treaty on general emerging disease obligations, accompanied by disease-specific or region-specific protocols containing detailed and specific commitments on emerging disease control a.Takes emerging disease control out of WHO, eliminating problem of WHO's reluctance to use international law b.Allows for new protocols to be adopted for new diseases c.Framework-protocol approach has been used with some success in international environmental law on ozone depletion a.WHO has to play central role in any emerging disease plan b.Framework-protocol approach might not be appropriate model for emerging disease control because the emerging disease problem differs from ozone depletion
4. Encourage regional arrangements and integrate them into global regime over time a.Builds on strong regional systems of cooperation and coordination b.Offers "legal laboraties to try various approaches to emerging disease control c.Avoids diplomatic headaches involved in trying to negotiate truly global legal regimes a.Emerging diseases require a global approach not just a regional approach b.Amounts to emerging disease control for rich regions, leaving many developing countries outside legal regime c.Risks inconsistencies in how emerging diseases are handled by different regions
5. Encourage a bilateral approach in which individual contries negotiate detailed and specific commitments on emerging diseases and perhaps condition trade benefits and aid on emerging disease performance a.Gives states flexibility in constructing legal obligations b.Permits possibility for sanctions for failure to live up to emerging disease obligations a.Does not address global nature of emerging disease problem b.Sanctions element is unrealistic and might be unfair to developing countries lacking the resources necessary to implement adquate emerging disease control measures
6. Incorporate emerging disease control as part of international "right to health," making emerging diseases a human rights issue a.Links emerging disease control with larger, powerful concepts of human welfare b.Builds on existing international law on the "right to health" a.International "right to health" has no definitive meaning or scope and thus is a bad foundation for emerging disease contro b.Human rights are inherently divisive in the international system; linkage with such a controversial area would hurt emerging disease control prospects
7. Rely on customary international law to develop emerging disease-control norms Customary international norms on emerging disease control would be binding on all states except persistent objectors a.It will be nearly impossible to develop general and uniform state practice recognized by states as legally binding in the emerging disease-control area b.Any customary norms that might form will probably be vague and hard to identify definitively c.Customary norms can take a very long time to develop

WHA = World Health Assembly; WHO = World Health Organization; IHR = International Health Regulations.

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