Assessing Proposals for
New Global Health Treaties: An Analytic Framework
Abstract
The increasingly
interconnected and interdependent nature of our world has inspired many
proposals for new international treaties addressing various health challenges, including alcohol consumption,elder care,falsified/substandard medicines, impact evaluations, noncommunicable diseases, nutrition, obesity,research and development (R&D), and global health broadly.These proposals claim to build on the success of existing
global health treaties. The breadth of proposed obligations reflects
the diverse regulatory functions that treaties are perceived to serve.
Examples of the Diverse
Regulatory Functions Among Existing International Treaties
But whether international treaties actually achieve the benefits
their negotiators intend is highly contested. There are strong theoretical arguments on both sides, and
the available empirical evidence conflicts. A recent review of 90 quantitative
impact evaluations of treaties across sectors found some treaties achieve their
intended benefits whereas others do not. From a health perspective, there is
currently no quantitative evidence linking ratification of an international
treaty directly to improved health outcomes. There is only quantitative
evidence linking domestic implementation of policies recommended in treaties
with health outcomes. For example, Levy et al. found that tobacco tax increases
between 2007 and 2010 in 14 countries to 75% of the final retail price resulted
in 7 million fewer smokers and averted 3.5 million smoking-related deaths; the
World Health Organization recommended this policy as part of its MPOWER package
of tobacco-control measures that was introduced to help countries implement the
Framework Convention on Tobacco Control. Evidence of treaties’ direct impact on other social
objectives is extremely mixed.
Even if prospects for benefits are great, international treaties
are still not always appropriate solutions to global health challenges. This is
because the potential value of any new treaty depends on not only its expected
benefits but also its costs, risks of harm, and trade-offs. Conventional wisdom suggests that international treaties are
inexpensive interventions that just need to be written, endorsed by
governments, and disseminated. Knowledge of national governance makes this
assumption reasonable: most countries’ lawmaking systems have high fixed costs
for basic operations and thereafter incur relatively low marginal costs for
each additional legislative act pursued. But at the international level,
lawmaking is expensive. Calls for new treaties do not fully consider these
costs. Even rarer is adequate consideration of treaties’ potentially harmful,
coercive, and paternalistic effects and how treaties represent competing claims
on limited resources.
When might global health treaties be worth their
many costs? Like all interventions and implementation mechanisms, the answer
depends on what these costs entail, the associated risks of harm, the
complicated trade-offs involved, and whether these factors are all outweighed
by the benefits that can reasonably be expected. We reviewed the important
issues at stake, and we have offered an analytic framework and 4 criteria for
assessing when new global health treaties should be pursued.
COSTS OF INTERNATIONAL TREATIES
International treaty-making can be incredibly expensive, usually
more so than other types of international commitment mechanisms, for example,
political declarations, codes of practice, and resolutions, which government
negotiators often take less seriously. The direct financial costs associated with drafting,
ratifying, and enforcing international treaties include not only many meetings,
air travel, and legal fees but also potentially new duplicative governance
structures—namely, conferences of parties, secretariats, and national focal
points—which must be maintained. It is particularly this need for new
governance structures that makes international treaties different from their
national equivalents, which typically benefit from relatively higher
functioning and more centralized regulatory systems that have already been
established for administering, coordinating, and implementing them. Indirectly, there are nonfinancial opportunity costs in
focusing limited resources, energy, and rhetorical space on 1 particular issue
and approach, which requires other important initiatives to be shelved.
The legalization of global health issues otherwise left in the
political domain may have the additional consequence of prioritizing process
over outcomes, consensus over plurality, homogeneity over diversity, generality
over specificity, stability over flexibility, precedent over evidence,
governments over nongovernmental organizations (NGOs), ministries of foreign
affairs over ministries of health, and lawyers over health professionals.
International treaties are often vague on specific commitments, slow to be
implemented, hard to enforce, and difficult to update. They can constrain
future decision-making and crowd out alternative approaches. Confusing patchworks of issue-specific treaties may also
deepen rather than contribute to solving challenges in global governance for
health. Alternative international commitment mechanisms may achieve greater
impact because countries are often willing to assume more ambitious obligations
faster if the agreement does not clearly and perpetually bind them.
Strategic balance
between treaties’ strength of commitment and depth of content.
RISKS OF COERCION AND PATERNALISM
Proponents of international treaties often envision a future with
higher minimal standards and new forms of accountability, which are both
supported by NGO advocacy and litigation. International treaties that impose
domestic obligations may have coercive and paternalistic effects for 3 reasons.
First, the terms of standard-setting international treaties are
largely dictated by powerful countries on the basis of minimal expectations that
they already meet, so new domestic standards often affect only poorer countries
or countries with less governmental capacity. One prominent example is the
World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual
Property Rights, which obliges countries to regulate expression (i.e.,
copyright), indicators of source (i.e., trademarks), and practical inventions
(i.e., patents) in ways that may disadvantage their economic development or
diverge from historic cultural norms. Because of resource and technical
limitations, this legally obliges poor countries to implement these
“enlightened” policies—often instead of local priorities—even if they have no
effect on other countries, cost more, and potentially achieve far fewer
benefits than do local alternatives. Promised financial support from wealthy
countries for implementing these policies is often not delivered, and poor
countries usually cannot take full advantage of flexibilities or withdraw from
international treaties without financial, security, or reputational
consequences.
Second, what on the surface may appear to be “voluntary”
ratification of treaties may actually be something else and may be far from how
legal systems in democratic countries would define this word. Involuntariness
may result from incapacity (e.g., ratifying countries not having the technical
expertise to fully assess the consequences of proposed treaties), lack of
consent (e.g., despotic leaders ratifying treaties for their own benefit
without the support of their citizens), corruption (e.g., negotiating agents
being influenced to act against their countries’ interests), duress (e.g.,
credible threats of disproportionate consequences forcing countries to ratify
treaties out of fear), and desperation (e.g., tragic circumstances encouraging
countries to accept unconscionable terms in exchange for short-term
assistance).
Third, pressure and litigation from foreign NGOs forcing
compliance with “international standards” can be unhelpful foreign interference
in domestic policymaking and priority-setting processes, especially considering
how many NGOs are funded by organizations based in rich countries, to whom they
are legally accountable rather than the people they intend to serve. Most NGOs make important contributions, but some are “a
mirage that obscures the interests of powerful states, national elites and private
capital.”This would especially include those NGOs set up by industry
to lobby for unhealthy policies, like the US National Rifle Association (which
calls itself “America’s longest-standing civil rights organization” and
advocates fewer gun controls internationally),the International Chrysotile Association (which promotes
asbestos’s “environmental occupational health safe and responsible use”), and the International Tobacco Growers’ Association (which
aims “to ensure the long-term security of tobacco markets”). But this could also include those well-meaning foreign NGOs
that succeed in getting their preferred interventions financed (e.g., high-tech
hospitals in capital cities) at the expense of more cost-effective solutions
(e.g., primary school education for girls).
TRADE-OFFS AND CHOICES
Limited resources mean governance unavoidably involves complicated
trade-offs and difficult social choices. Competing demands force governments to
prioritize, which converts every budgetary or regulatory decision into an
expression of local values, ethics, and priorities.Because all international treaties have domestic costs that
must be budgeted, they cannot be considered undeniable demands but rather
competing claims on limited national public resources. This dependence on
public resources, in turn, entitles people to democratic accountability and
distributive justice regarding the international treaties they choose to implement,
which necessarily subjects them to political contestation. Although basic human
rights and some other ground rules should be protected from such bargaining,
prioritizing compliance with new international treaties beyond usual
priority-setting processes and trade-offs is not always justified.
International law recognizes only a few peremptory jus cogens
norms—genocide, human trafficking, slavery, torture, and wars of aggression—that
are beyond state sovereignty and from which countries can never derogate no
matter the circumstances. These promote the kind of ground rules that are justifiably
beyond usual priority-setting processes and trade-offs. Other rules from
proposed new international treaties are unlikely to all be at this level.
FOUR CRITERIA FOR NEW GLOBAL HEALTH TREATIES
Treaties are certainly prominent among the many important
implementation mechanisms for international agreements, but because of their unproven benefits and significant
costs, risks of harm, and trade-offs, an analytic framework is needed to guide
global decision-makers, national governments, and civil society advocates in ex
ante evaluating whether to pursue new ones. We have proposed 4 criteria, which,
if met, can help decision-makers ensure that any new global health treaties
they adopt have reasonable prospects of yielding net positive effects.
First, there should be a significant transnational dimension to
the problem that proposed treaties are seeking to address, involving many
countries, transcending national borders, and transferring risks of harm or
benefit across countries. Transnationality often involves interconnectedness
(i.e., countries affecting one another) and interdependence (i.e., countries
dependent on one another). Pandemics are an example, along with trade in health
products, R&D for new health technologies, and international migration of
health professionals. In these examples, effects of the problem or benefits of
the solution cannot or should not be limited to their countries of origin.
Problems that are contained within individual countries, or problems that can
be stopped at national borders, do not meet this criterion.
Second, the goal and expected benefits should justify the coercive
nature of treaties. For example, the proposed global health treaty could
address multilateral challenges that cannot practically be resolved by any
single country acting alone (e.g., tobacco smuggling, which is regulated by the
Framework Convention on Tobacco Control). Alternatively, perhaps it helps
overcome collective action problems in which benefits are accrued only if
multiple countries coordinate their responses (e.g., pandemic outbreaks, which
are governed by the International Health Regulations). This could include
addressing the underprovision of public goods (e.g., health R&D) or overuse
of common goods (e.g., antimicrobial medications). A proposed global health
treaty may also justify its coercive nature if it advances superordinate norms
that embody humanity and reflect near-universal values (e.g., basic human
rights, including freedom from torture).
Third, international treaties should have a reasonable chance of
achieving benefits through facilitating positive change. This means taking a
realist and realistic view of what different actors can and will do both
domestically and internationally, whether by choice or as limited by
regulations, resources, governmental capacity, or political constraints. This
also means proposals for new treaties should probably mobilize the full range
of incentives for those with power to act on them, institutions specifically
designed to bring edicts into effect, and interest groups that advocate their
implementation.
Fourth, treaties should be the best commitment mechanism for
addressing the challenge among the many feasible competing alternatives for
implementing agreements, such as political declarations, contracts, and
institutional reforms.The best available research evidence should indicate that a
new international treaty would achieve greater benefit for its direct and
indirect costs than would all other possible options. At the very least,
treaties should not be strategically dominated by other available mechanisms
for committing countries to each other, considering expected impact, financial
costs, and political feasibility, meaning there should not be a less costly and
more realistic mechanism that is expected to be equally effective. The use of
global health treaties would also be inappropriate to dictate poor countries’
domestic policies and priorities from afar (see the box on this page).
Four Criteria for New
Global Health Treaties
Assessing proposals for new treaties on the basis of these 4
criteria is an exercise of interdisciplinarity in action. Each relies on the
conceptual tools, theories, and perspectives of a different field of study.
Assessing the first criterion, transnationality, depends on knowledge of
political science and governmental capacity to stop threats at national
borders. Assessing whether the second criterion of justifying coercion is
satisfied involves ethical and legal analysis of norms, virtues, intentions,
and consequences. Both economics and epidemiology can help decision-makers
evaluate the third and fourth criteria, namely, whether there is a reasonable
chance of the proposed treaty achieving benefits and whether a treaty is
actually the best commitment mechanism for achieving their particular goals.
If these 4 criteria are met, there may be comparative advantages
for using treaties to address global health challenges, as its supporters have
long claimed. Treaties are the most powerful expression of countries’ intent to
behave in a certain way, they are rhetorically powerful for encouraging compliance
with commitments, and they build on an established (albeit contested)
international system of principles, rules, and adjudicative procedures. The intense process of international treaty-making itself
can have profound impacts through coalition building, norm setting, and
fostering consensus that may emerge during negotiations.These qualities may be particularly important for high
stakes and highly divisive issues of transnational significance. But if these 4
criteria are not met, alternative instruments may be more appropriate, because
the costs, risks of harm, and trade-offs are probably not worth the benefits.
APPLICATION TO PROPOSALS FOR NEW TREATIES
Applying this analytic framework to 9 recent calls for new global health
treaties reveals that none fully meet the 4 criteria. In most cases, this is
because the goals and expected benefits did not justify the coercive nature of
treaties and because competing options for commitment mechanisms may be more
appropriate.
Applying the Criteria to
Proposals for New Global Health Treaties
According to this analysis, proposals for R&D and
falsified/substandard medicines treaties may be the existing calls for new
global health treaties that most closely meet these criteria. Securing R&D
for health products needed in the least developed countries has proven to be a
significant transnational challenge. This challenge involves a market failure
that requires collective action among countries to address the underprovision
of this global public good. However, whether a treaty is needed to achieve what other
international commitment mechanisms have not is still uncertain and is heavily
debated. If a treaty is indeed the best commitment mechanism for addressing
this market failure, an R&D treaty would meet the 4 criteria.
Similarly, medicine quality is a cross-border challenge beyond the
control of any single country. Up to 15% of all medicines globally may be
substandard, dangerous, and fake, with the severity of this problem
fundamentally rooted in and deepened by globalization. The challenge of falsified/substandard medicines also
implicates several highly legalized regimes such as trade, intellectual
property, fraud, organized crime, and narcotics, which perhaps—but not
necessarily—make treaties the best international commitment mechanism for
implementing agreements among countries in this domain.
Although these 9 recent calls for new global health treaties did
not meet all 4 criteria, this does not mean it is impossible. Antimicrobial
resistance may be the best candidate for an international treaty, at least
compared with existing proposals. This problem is a multilateral challenge
involving the overexploitation of a vital common-pool resource as well as a global public good challenge for ensuring the
proper use of existing antimicrobials (which benefits all people well beyond
the actual user) and continued progress in R&D toward new antimicrobials
(which also benefits all).Antimicrobials can be used only so many times before
bacteria, viruses, parasites, and fungi evolve, adapt, develop resistance, and
render these medicines ineffective. So although it is in every person’s and
every country’s rational interest to consume as much of these medicines as
would be helpful to them, each use degrades the overall effectiveness of these
medicines for everyone.
Further exacerbating this challenge is the structural misalignment
between pharmaceutical companies’ market incentives to sell as many
antimicrobial products as possible and the microbiological imperative of
limiting use to prevent resistance. Inevitable competition from generic firms
after the patent monopoly period—which is important for promoting access to
medicines—further deepens these market dynamics and erodes any countervailing
incentive to preserve antimicrobial effectiveness for the long term. The value
of an antimicrobial resistance treaty, however, depends greatly on continued
difficulties in developing new antimicrobials and countries’ ability to near
universally adopt an international treaty containing sufficiently strong
commitments and robust accountability mechanisms for resolving this challenge.
CONCLUSIONS
International treaties may in theory yield transformative benefits
for global health, but they also carry high costs, risks of harm, and
trade-offs. Calls for unjustified and unhelpful global health treaties diminish
the possibility of worthy initiatives from being taken seriously. It is
essential to determine when treaties should be used and when alternatives may
be more appropriate. A commission on global health law could help identify such
opportunities in ways that do not further complicate global governance
architecture, including considering the role of the World Health Organization’s
existing secretariat and governing bodies.
Greater investments in empirically evaluating the range of
international instruments and commitment mechanisms are also essential for
learning which tools are best suited for addressing each global health
challenge.For example, a robust impact evaluation of the Framework
Convention on Tobacco Control could inform future decisions on potential
treaties in other areas. In the meantime, unless proposals meet the 4
identified criteria, efforts aiming to better use or revise existing
international instruments for global health purposes may be more productive for
achieving health outcomes than for advocating new treaties.
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