Global health and Law

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global health and the law spring 2013 9

Colleen M. Flood, LL.B., LL.M., S.J.D., is a Proessor and Canada Research Chair at the Faculty o Law, University o Torontoand is cross-appointed to the School o Public Policy and the Institute o Health Policy, Management & Evaluation. From 2006-2011 she served as the Scientifc Director o the Canadian Institute or Health Services and Policy Research. She holds a Bacheloro Arts and Bachelor o Laws (Honours) rom the University o Auckland, New Zealand as well as a Master o Laws and Doctoratein Juridical Science rom the University o Toronto, Canada. Her primary areas o scholarship are in administrative law, com-parative health care law & policy, public/private fnancing o health care systems, health care reorm, and accountability andgovernance issues more broadly. Trudo Lemmens, LL.M., D.C.L., is the Scholl Chair in Health Law and Policy at the Facultyo Law o the University o Toronto, where he also holds cross-appointments in the Faculty o Medicine and the Joint Centre orBioethics. He has a Licentiate in Law rom the K.U.Leuven, and a Master in Laws (specialization bioethics) and Doctorate inCivil Law rom McGill University. During the academic year 2012-2013, he is a aculty member o the Centre or TransnationalLegal Studies and an academic visitor at the Faculty o Law and the HeLEX Centre or Health, Law and Emerging Technolo-gies o the University o Oxord. His research is primarily ocused on the intersection o law, ethics, biomedical innovation, andmedical research and practice.

Health rights have grown very popular. Firstappearing more than 60 years ago in the UNUniversal Declaration on Human Rights,

health rights, both general and specic, now appearin many other international agreements, as well asin domestic state constitutions and statutes. Despitethe prolieration o health rights and the recognitiono health-related components o other rights (and anaccompanying rise in litigation), we still ace stagger-ing disparities in health and access to health care bothwithin nation states and across the globe. Health carespending per capita or the top 5% o world popula-

tion is nearly 4,500 times that or the lowest 20%.Each year 2.5 million people die annually rom vac-cine-preventable diseases1 and close to 7 million chil-dren under the age o 5 died in 2011 rom malnutri-tion and mostly preventable diseases.2 In this specialedition, we collectively explore to what extent law hasand could make a dierence in meeting global healthchallenges.

Canadian and international scholars met at a con-erence on Global Health Challenges and the Role oLaw in Toronto on May 4-5, 2012 and presented papers

in ve dierent clusters: Global Health and ChronicDiseases; Global Health and Vulnerable Populations;Global Health and Human Rights; Globalization,Pharmaceuticals, and Free Trade; and Globalizationand Global Trade in Bodies and Services. We askedparticipants to explore the various ways in whichlaw3 unctions (or malunctions) as a tool or reormin global health, and more broadly, the interactionsbetween law and other mechanisms o global healthgovernance. Not all papers provide explicit answers tothese questions. But they all reect on either the valueo legal intervention, or the limits o law in providing

solutions, or the complex ways in which law interactswith other normative systems and socio-economicpractices and transactions.

The rst and most important global challenge high-lighted by contributors is the poor health o billions inthe world, particularly in lower- and middle-incomecountries, and, related thereto, inadequate and ineq-uitable access to care and essential medicines. Can lawmake a dierence? Most contributors to this specialedition ocused on access to health care as opposedto health simpliciter likely because injustices o

introduction

Global Health Challenges andthe Role o Law

Colleen M. Flood and Trudo Lemmens


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the latter sort are more dicult to t in a legal rame,given the diusion o actors involved and the problemo establishing causation between an individuals poorhealth and larger social determinants o health. How-ever, one contributor did explicitly tackle the issue oglobal health inequities. According to Solomon Bena-

tar, law may help to challenge existing norms andreormulate them, but law alone will not be enough;closing the global health chasm requires a radicalreconceptualization o the distribution o health andthe sphere o health care. Benatar criticizes the legal

order underlying our current capitalist market sys-tem or colluding with the processes that contributeto huge wealth disparities by gravely misallocatingthe resources that inuence the social determinantso health. He argues that our international legal orderacilitates a shit towards hyper-individualism and

super-capitalism and erosion o cooperation, solidar-ity, and mutual responsibility. These distortions havecoincided with the commodication o health careand an emphasis on technical innovation over theeective deployment o existing knowledge and tech-nologies. Developing sustainability and improvingglobal population health, according to Benatar, willrequire changes in international law that incorporatea re-thinking o social priorities and a re-examinationo the legal powers o corporations.

One o the most obvious ways in which law impactsaccess to health care is through litigation o heath

care rights (or related rights, such as the right to lie).Many advocates o human rights believe as an articleo aith that pursuing the realization o health rightswill result in public welare improvements and in par-ticular will improve the plight o vulnerable popula-tions. Others, however, express concern that courtchallenges will put undue pressure on public healthcare systems to expand access to, or example, highlyexpensive drugs o relatively low ecacy and/or resultin human rights challenges that actually urther aprivatization agenda. In Canada, the Chaoulli decision

o the Supreme Court has been widely criticized romthat perspective. At the conerence, two presentationsaddressed this debate. In her contribution, MarianaMota Prado discusses the case o Brazil requentlyheld up as an example o right to health litigationworsening inequality o access to health care, by divert-

ing public unds to expensive novel treatments orafuent claimants. Prado does not reject these claims,but she adds complexity to this debate by suggestingthat one has to look at the longer-run impacts o thisorm o litigation. She argues resulting policy changes

that occur in multiple domains (e.g., institutional andgovernance shits in the health care system, changesto the legal system) might be net benecial, even i atrst blush access to health care itsel is worsened orthe most vulnerable. She calls or urther research toassess these eects and the long-term impact o right-

to-health litigation.Aeyal Gross engages in a comparative analysis o

Israel and Canada, exploring whether right to healthlitigation has been used to re-articulate claims to pri-vate health care as human rights claims, thus under-mining rather than expanding equity. He contrasts aCanadian case (Chaoulli) which he claims co-opteda constitutional right to security o the person to cre-ate a right (or some) to private health insurance with an Israeli case (Kiryati) where an application toallow preerential treatment or those who could paywas denied. But Gross notes that the Kiryati case,

although suggestive o judicial resistance to rightsdiscourse being co-opted or non-progressive ends,has to be situated in a larger context. In other cases,the Israeli judiciary has so ar been unwilling to chal-lenge government policy that imposes signiicantout-o-pocket payments at point o service, eectivelyrationing care or the poor. Thus, in Israel the courtshave been strong enough to resist attacks on existingequality-enhancing government policies (prohibitionson private payment or preerential access to special-ists) but not suciently strong to strike down policy

We asked participants to explore the various ways in which law unctions(or malunctions) as a tool or reorm in global health, and more broadly, theinteractions between law and other mechanisms o global health governance.

Not all papers provide explicit answers to these questions. But they all reect on

either the value o legal intervention, or the limits o law in providing solutions, orthe complex ways in which law interacts with other normative systems and socio-

economic practices and transactions.

INTRODUCTION


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that undermines equality (the imposition o extensiveco-payments).

Other contributors are more optimistic about therole o the judiciary in advancing progressive rightsto health care, particularly by drawing on interna-tional law, both hard and sot. In this regard,

Oscar Cabrera and Juan Carballo argue that in thearea o tobacco control, courts can play a very posi-tive role. They explore standard criticisms o judicialenorcement o economic, social, and cultural rightsand explain how, at least in the case o tobacco con-trol, these arguments alter. Critics point to the lim-ited technical capacity o the courts; that judicialintererence may result in the redirection o publicresources to those who can aord to litigate; and theproblem that those most in need do not have accessto the courts or appropriate legal representation.With respect to the technical capacity o courts, they

discuss how the Framework Convention on TobaccoControl establishes scientic and medical determina-tions that compensate or any judicial limitations inthis regard. With respect to inappropriate redirectiono resources, they argue that courts are not requiredto substantially redirect public resources in the con-text o tobacco, because tobacco control measures arelargely inexpensive and cost-eective. And inally,with respect to access to justice concerns, tobaccocontrol decisions rom Latin America have broadenedthe law o standing and justiciability and armed thenon-retrogression component o progressive realiza-

tion in ways that will bolster uture health rights liti-gation. Thus, it seems that the tobacco control case(and the interplay o international law and litigation)provide important lessons or success in other arenas.One caveat remains, however, or in many o the casesreerred to the right to health is used as a shield bygovernment to resist industry challenges to tobaccocontrol laws and so although it is certainly positivethat law is protecting laudable public health action onthe part o governments, it is not necessarily promot-ing it or demanding it.

Rebecca Cook in her contribution discusses the caseoAlyne da Silva Pimentel Teixeira (deceased) v. Bra-

zil4 where the Committee on the Elimination o Dis-crimination Against Women (CEDAW) ound, or therst time, that a nation state was responsible or thepreventable death o a poor pregnant woman o Aro-Brazilian descent. Cook paints a picture o the inter-play between international law (the UN Conventionon the Elimination o All Forms o DiscriminationAgainst Women), international oversight and gover-nance (CEDAW, which monitors compliance on thepart o member states), constitutional law (CEDAWlinked Brazils responsibilities to its own constitution

which arms the right to health as a general humanright) and the actions o various NGOs at the inter-national and domestic level who were particularlyinuential in amassing the necessary evidence baseto bring the case. All o these actors played a role inthe success o this case. Cook examines how we can

determine the eectiveness o the decision. One wayis to assess whether the case will advance the sex andrace equality norms in the health system, or exam-ple by narrowing the dierential maternal mortalityrates between poor Aro-Brazilian and other womenin Brazil. It is too early to tell, according to Cook, butshe argues that i the judicialization o health is goingto be eective, then court decisions need to catalyzehealth systems to address health inequalities that poorpregnant women ace in accessing maternity care. Inso doing, courts will accelerate Brazils compliancewith its human rights obligations and its commit-

ment under the UN Millennium Development Goalo reducing its maternal mortality ratio by three-quar-ters, between 1990 and 2015.

Both Cabrera/Carballo and Cook emphasize theimportance o international law in promoting pro-gressive judicial responses. This proved an importanttheme explored by a number o contributors; namely,the role o international law and international agree-ments in stimulating progressive change whetherthrough the courts or political processes. ArthurWilson and Abdallah Daar in their contribution tothis special issue ambitiously tackle the question o

what role, i any, international legal instruments haveplayed in solving global health challenges. They assessa range o international instruments and related globalchallenges and with humility given the dicultieso establishing causation in such a complex arena suggest a number o actors that seem to be condi-tions precedent to success. Carrying on this theme,Constance MacIntosh ocuses on the use o inter-national instruments to promote health standardsamong aboriginal peoples. She shows in her paperhow international legal instruments and internationallegal ora have promoted global dialogue about indig-enous peoples health inequalities dialogue that

was previously limited to the domestic sphere. MacIn-tosh emphasizes how the very active participation oaboriginal people at the international level has acili-tated their recognition as legitimate contributors todomestic governance, thus contributing to enablingsubstantive engagement. Hard instruments, suchas the International Covenant on Economic, Socialand Cultural Rights and the Indigenous and TribalPeoples Convention (ILO Convention 169) and sotinstruments, such as the United Nations Declarationon the Rights o Indigenous Peoples, have provided


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the impetus or reorm at the domestic level throughnegotiation, legislation, and litigation. MacIntoshprovides examples o how internationally articulatednorms ound their way into domestic legal and policyinitiatives related to health in New Zealand/Aotearoaand Canada.

While MacIntosh ocuses on aboriginal communi-ties rendered vulnerable in the context o historicallysituated political and socio-cultural oppression, SheilaWildeman, or her part, addresses the role o inter-national human rights in stimulating more inclusiveprocesses o deliberation concerning the political andsocio-cultural determinants o disability. Her paperconcentrates on the impact o the International Con-vention on the Rights o Persons with Disabilities; inparticular, on how this convention has become a pow-erul tool in positioning mental health as a humanrights issue. As Wildeman explains, the Convention

was negotiated with the extensive involvement oNGOs, particularly disabled persons organizations. Itnot only combines civil and political rights with eco-nomic, social, and cultural rights, but also includesboth rights o and state responsibilities or politi-cal participation. However, controversies remain overthe Conventions implications or domestic laws oninvoluntary psychiatric treatment, including involun-tary hospitalization and substitute decision-making.Wildeman concludes that the global prominenceattained by the perspectives o disabled persons orga-nizations during the negotiation and implementation

o the Convention illustrates the potential transor-mative power o human rights law vis-a-vis ongoingmutual education and debate about the meaning andimplications o undamental norms.

International human rights conventions and associ-ated litigation are credited by a number o contribu-tors with galvanizing (or potentially galvanizing)positive change, but another theme explored was therole o international trade agreements. Many com-mentators express concern that such agreements haveexacerbated and perpetuated global chasms in accessto health and health care. Reecting this concern, intheir contribution, Ruth Lopert and Deborah Glee-

son emphasize the impact o American interests inbilateral and regional trade agreements on access tomedicines. They emphasize how in addition to the so-called TRIPS-plus intellectual property protections,American trade negotiators have attempted to restrictother countries domestic policies on the pricing andprovision o pharmaceuticals as well as the regulationo direct-to-consumer advertising. Lopert and Glee-son discuss how these provisions reect the growinginuence o trade objectives and industry interests onpharmaceutical policies worldwide. They warn that

these aspects o trade agreements, as exemplied inthe current negotiations or the Trans Pacic Part-nership Agreement, can seriously constrain advancesmade in the context o public health. Lopert and Glee-son argue that it is critical or Trans Pacic Partner-ship countries to recognize the potential costs to soci-

ety o the U.S. agenda so that a better balance betweeneconomic and health objectives can be ound.

Patent protections are part and parcel o most inter-national trade agreements, and Richard Gold, in hiscontribution, takes issue with the dominant discoursesin the literature surrounding patents and humanrights. He distinguishes three traditional positions inthe debate: one position is that in the inherent clashbetween patents and human rights, the latter shouldprevail. A second view is that that patent rights arethemselves a species o human right. And accordingto a third view, patent rights and human rights are di-

erent but compatible. Gold argues that the traditionalapproaches are incomplete and ail to recognize thathuman rights and patent rights are undamentally di-erent at the normative level and thereore incommen-surable. Human rights, he suggests, are moral rights,whereas patent rights are contingent rights. In addi-tion, human rights operate in his view primarily at theinternational level, whereas patent rights are primarilydomestic. Picking up on the normative role o humanrights law whether at the international or domesticlevel Trudo Lemmens argues it can be employed tostrengthen the governance o pharmaceutical knowl-

edge and to address the existing knowledge decitresulting rom industry-controlled scientic practice.He rst discusses how the right to health is intrinsi-cally linked to other human rights concepts (e.g., theright to inormation, the right to lie, and the protec-tion o private and amily lie). The human rightsdimensions o access to reliable risk inormation canbe invoked not only to reject data secrecy claims madein the context o international trade agreements, butalso to impose a positive obligation upon states toactively support reliable knowledge production. Lem-mens then goes on to advocate or a more conceptualuse o human rights, as a methodology which requires

a comprehensive analysis o the dierent interwovenhistorical, economic, cultural, and social actors thatcontribute to the current knowledge decit. The claimthat historically grown drug regulations have directlycontributed to industry control over knowledge pro-duction is in this context particularly important oruture law reorm. The paper ends with the sugges-tion that strict transparency obligations should beintegrated in the Framework Convention on GlobalHealth, and that the WHO should reinvigorate its


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global leadership in the promotion and coordinationo transparency measures.

Contributors also explored how our quest or greaterhealth care equity and better access is complicated byever-increasing challenges posed by increasing globalmigration, both temporarily and permanently, o peo-

ple, diseases, ideas, culture(s), services and commodi-ties. North-American patients travel to Europe ornew hips and knees, or go south to obtain experimen-tal treatments in Mexico or Brazil, while desperately illEuropean patients pay ortunes to participate in con-troversial stem cell trials in Russia or Turkey. Patientsrom many industrialized countries lock to Indiaand China to get around long organ wait lists in theirhome country. Meanwhile, U.S. surrogates may enterinto contracts with Australian couples to be impreg-nated in Canadian clinics with Scandinavian sperm.Can the law intervene eectively to protect and pro-

mote the range o interests and values at stake, amidstthese waves o medical tourism or organs, gametes,ova, and health care services? The intensication ointernational travel and trade also increasingly global-ize traditional challenges to public health, or examplethose resulting rom the threat o pandemic inuenzaand chronic diseases. Unhealthy ood habits rom theindustrialized world are increasingly exported south,disproportionately aecting the health and well-beingo the worlds poorer populations. Can law do anythingto stem the spread o chronic disease and the everexpanding (pardon the pun) obesity epidemic?

The issue contains two papers that ocus on legalgovernance o chronic diseases. Bryan Thomas andLawrence Gostin clearly take a very dierent stancethan William Bogart on the ability o law to eectivelydeal with the challenge o chronic diseases. WhileThomas and Gostin deend an approach based on thesimultaneous embracing o a wide variety o strate-gies in both national and international law, Bogartreects skeptically on the laws ability to eectivelycombat obesity. Thomas and Gostin support the use orestrictive regulations on labelling, ood additives, andadvertising, but also acknowledge the need to incen-tivise industry and individual consumers to change

behavior. They emphasize, as Gostin has done in ear-lier publications, that domestic strategies require thesupport o global governance mechanisms which, tobe eective, require specic compliance mechanisms.They also indicate that eective strategies have builton engagement with industry and civil society. Bog-art reects more critically on existing legal tools tocombat obesity. He challenges current public healthpolicies rst or ailing to be clear about the nature othe public health problem: is the problem purely oneo the high incidence o overweight people Bogart

provocatively uses the term at or is it the absenceo healthy living and exercise? He also suggests thatthe dominant public health approach ocusing onweight loss and sel-control results in stigmatiza-tion and discrimination, while ailing to provide aneective remedy. Legal interventions may, according

to Bogart, only play a limited role in the promotion opublic health. A less zealous ocus on healthy living, heargues, should guide legal interventions in this area.

Among the most topical challenges in the con-text o global health are those associated with medi-cal tourism, including the global provision o organsand reproductive services. Two contributions ocuson transnational reproductive services. Erin Nelsonargues, based on an analysis o some contrasting exam-ples o national approaches to commercial surrogacy,that domestic law prohibitions on commercial surro-gacy are a driver o international surrogacy practices

and generate considerable legal complications. Nelsonelaborates on some o these complications, showingus how national citizenship and parentage rules canresult in stateless children through international sur-rogacy arrangements. Although these problems areinternational in scope, she maintains that domesticlaw reorm can help both to address these legal com-plications and to reduce the demand or internationalsurrogacy. In sharp contrast Jocelyn Downie and Fran-oise Baylis argue or the transnational applicationand need or enorcement o existing laws. They dis-cuss how the Canadian government ails to deal ade-

quately with the transnational trade in human eggs notwithstanding the enactment o the ederal AssistedHuman Reproduction Act, which included relevantprohibitions and the establishment o a dedicated reg-ulatory agency. The weaknesses, gaps, and uncertain-ties in the Canadian legal regime with respect to thetransnational trade in human eggs, they argue, holdlessons or other jurisdictions. Downie and Baylis rec-ommend that the Canadian government and its regu-latory authorities should take immediate action to llstatutory gaps, explain to stakeholders the eects othe relevant law, and enorce that law. They shouldalso counteract the transnational trade by using policy

tools to pursue domestic sel-suciency.Glenn Cohen tackles the issue o transplant tour-

ism. He decorticates various traditional argumentsmade in the literature about the moral wrongness othe global sale o organs, paying particular attention tothe corruption argument. Most traditional objections,he argues, are not substantiated. For Cohen, the stron-gest ethical argument or the prohibition o transplanttourism draws on evidence that inormed consent isoten lacking a very substantial number o seller/donors subsequently regret their donation. Cohen


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urther discusses a variety o potential internationaland national legal interventions. In addition to hardand sot international legal instruments, domestic lawreorm can, according to Cohen, decrease transplanttourism. Destination countries can increase enorce-ment o prohibitions on organ sales. Home countries

can give extraterritorial application to their prohibi-tions on organ sales, disallow health insurance cov-erage or ollow-up medication and treatment, andrequire doctors to report suspected transplant tourists.Home countries can also use legal tools to increase thedomestic organ supply.

Y.Y. Brandon Chen and Colleen M. Flood challengethe assumption that it is up to the critics o medicaltourism to clearly demonstrate the problems there-with arguing that, given the clear equity problemsthat arise with dierential treatment in receivingcountries, the burden o proo should lie with the pro-

ponents o medical tourism. They discuss how the lim-ited empirical evidence suggests that modern medicaltourism in which patients rom developed countriesseek treatment in low- and middle-income countries has a net negative impact on health equity andaccess to health care, especially primary and preven-tative health care, in destination countries. Chen andFlood suggest that developed countries should ocuson ensuring sucient domestic health care systemsand insurance or their populations in order to reducedemand on the part o their citizens or medical tour-ism. Destination countries should insist upon direct

cross-subsidization o the public health care system bythe medical tourism industry.Finally, Timothy Cauleld and colleagues discuss

the growing transnational travel o patients look-ing or highly experimental stem cell treatments atvery high nancial costs stem cell tourism. Theyraise doubt about the eectiveness o legal prohibi-tions. Such prohibitions, they suggest, are unlikelyto deter this lucrative industry which preys on highlymotivated but oten ill-inormed patients. Ratherthan ocus on complex international regulations, theysuggest the path orward requires improved patienteducation, which should inorm decision-making

and may deter stem cell tourism. Because prospectivepatients o these therapies tend to doubt the reason-ableness o decisions made in the context o their ownhealth care system and the approval process or newtherapies, education should ocus on the nature andimportance o translational research and regulationand the ultimate goals o assessing both ecacy andsaety. Educational material, they argue, needs to bereadily available online in order to be eective.

So can we conclude that law makes a dierence toglobal health challenges? Our special symposium pro-

vides no denitive answer but instead adds complexityto the question. The contributions oscillate betweenshades o optimism and pessimism. Optimistic storieso the success o law or at least its potential high-light the interplay between international agreements,international monitoring and governance, domestic

health human rights and litigation, and the role oNGOs. However, even the most optimistic commen-tators admit that success is hard won and requentlydecades in the making, such as or example, in thecase o tobacco control. This seems likely to be thecase (and success certainly cannot be assumed) ornew global challenges such as obesity. Several sub-themes emerged as contributors explored optimisticscenarios. One theme, raised by Aeyal Gross and bear-ing urther exploration, concerns whether the courtsare more likely to be protective o health human rightsthat exist as part o government policy as opposed to

ensuring the realization o these rights when not inplace. The success o tobacco control litigation wouldseem to all in line with this theme as demonstrative ocourts protecting existing government policy but notcatalyzing progressive change. Yet another sub-theme,raised by Mariana Prado, is whether litigation, whichseems to undermine equality, might have a long-termpositive knock-on eect in other areas, including thehealth care system and the operation o the courts.Social science research is needed to assess what thelong-term impact o these changes are, even i thesechanges may not outweigh the immediate costs to

access to care.Those contributors who are more pessimistic aboutthe role o law also raised a number o sub-themes toesh out the nature o their pessimism. First is thetheme that the law alone is simply not mighty enoughto combat some o the enormous global health chal-lenges. Huge pressures on domestic health care sys-tems aging populations, rising costs, new technolo-gies, and bans on unethical practices will generatea pipeline o medical tourists. Some call or moreassiduous eorts on the part o governments to regu-late and yet others are concerned that domestic eortsto protect health-related human rights (or example

by limiting commercial surrogacy) merely ofoad theproblem to other jurisdictions such as India. Somecommentators contend that global problems likemedical tourism can only be truly met throughglobal solutions and call or the establishment ointernational law and global governance mechanisms.Yet this all-back position itsel draws pessimism, asothers express doubt that international law and normsare progressive or even benign, and they point to con-cerns regarding the potential or international tradeagreements to exacerbate rather than ameliorate exist-


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ing vulnerabilities and inequities in access to healthcare unless greater policy cohesion between tradeand health objectives can be achieved. Pessimists alsopoint out that the usual tool o lawyers litigation may result in distortion o limited resources romthe most vulnerable to those with wealth a prob-

lem that is exacerbated by access to justice problems.Litigation may be counterproductive when it under-mines specic health policy decisions that have beendeveloped in response to complex health systems chal-lenges (e.g., unding decisions; or decisions reect-ing a careul balancing o public and private undingmechanisms).

Border-crossing practices not only evoke varioustechnical transnational legal questions. Several con-tributions indirectly touched on the act that global-ization o health care has implications or nationalhealth care systems and or patients who receive

health care strictly within national boundaries. Whenpatients obtain inormation about the approval orunding o promising new treatments in other coun-tries, health care systems are easily put under pressureto do the same, or to nancially support patients inaccessing treatment outside their jurisdiction. Simi-larly, health research and drug development processesthat take place around the world inuence nationalmedical practices and health care policies. The seri-ous pressures thus created on governments and healthcare providers should be an impetus or some o theworlds inuential countries to take seriously the need

or global coordination and enorcement.Several contributions developed the argument thathealth rights are not only about individually enorce-able claims, but more about the recognition o positiveand more systemic obligations to implement equi-table health protection and promotion. Reerences inhuman rights documents and in the literature to theconcept o progressive realization o the right to healthreects a recognition o the limits o traditional rights-based approaches not only in the context o complexhealth care decision making, but also in other areaso social lie. Clearly, laws contribution to domesticor global health cannot only be about the creation o

individually enorceable claims against the state oragainst others. All orms o rights conceptually entailboth negative and positive duties, and acknowledg-ment o such heralds a more sophisticated under-standing o how law operates (or should operate) ina larger societal context. No one obtains good healthcare in splendid isolation.

Many o the challenges in the distribution ohealth and health care presented by recent globaliza-tion trends are dierent in nature rom some o the

historical challenges, due to the speed with whichpeople, goods, services, culture, and ideas travel theglobe. But the proound technological, cultural andsocial changes associated with globalization also pro-vide unique opportunities, or example with respectto improved knowledge sharing and, based on that,

better-inormed and more thoughtul policymaking.In the ace o these overwhelming global health chal-lenges, as legal advocates and scholars we must domore than simply proclaim the importance o health-related human rights. We need to rigorously researchthe short- and long-term impacts o dierent legaltools, honing our institutional responses to addressglobal health challenges. We need to critically assesssuccesses and ailures o global legal interventions,harvesting the new communication and technologicalmeans to share our ndings. We hope that this specialissue contributes in a modest way to make health care

rights work or those who need them the most.To end we would like to thank the people who

helped make our conerence and this special editionpossible. We would like to thank Bryan Thomas whoresearched and advised us on potential contributorsand did much o the background work we neededto host this event. Close to the conerence itsel wewere aided by the stellar work o Arthur Wilson,Melissa Casco, and Bernadette Mount, the latter owhom stepped into the breach at the last minute andattended to the enormous number o tasks needed tomake an event like ours a success. We would not have

been able to convene our scholars without the helpo generous sponsors (see http://nhlc2012.ca/spon-sors/). With respect to this special journal edition, wethank Andrew Martin and Marcelo Rodriguez Fer-rere or their organizational support and editing andreview comments on many o the contributions; ouranonymous peer-reviewers or their detailed eed-back; ASLME President Mary-Anne Bobinski or hersage counsel; and Ted Hutchinson and his JLMEteamor their terric editorial work. Final and hearteltthanks to our contributors or their vibrant presenta-tions and thought-provoking articles.

Reerences1. L. Gostin, The Unconscionable Health Gap: A Global Plan or

Justice, The Lancet 375, no. 9725 (2010): 1504-1505.2. WHO Fact Sheet no. 178, Children: Reducing Mortality

(September 2012), available at (last visited March 4,2012).

3. We dene law broadly to include international law and agree-ments, constitutional law, ordinary legislation, regulation,administrative law, and sot law measures, but limited to thosesot law measures with some normative strength and tools orenorcement (administrative decision-making and guidelines),etc.

4. CEDAW/C/49/D/17/ 2008, 10 August 2011.

Global health and Law

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