The Future of the Right to Health is National
Around the world, the enforcement of long-discussed and even ratified treaties and agreements remains weak. Despite this, some policymakers and scholars remain hopeful that more binding international norms (or “soft law”) will increase solidarity amongst states under international legal regimes. For example, in the field of global health law, discourse has highlighted the need for the development of a Framework Convention on Global Health. More recently, in the wake of COVID-19, scholars have urged revising and strengthening the World Health Organization’s (“WHO”) International Health Regulations (“IHR”) “as an instrument that will compel global solidarity and national action against” the global spread of disease.
However, by primarily stressing the development of frameworks at the international level to further the legitimacy of international law, legal scholarship often overlooks the extent to which national law has already become more international. And by doing this, the scholarship can fail to acknowledge national law as a means of enforcing and achieving the goals of international law.
In a world where the legitimacy of international law still depends on the way its norms are received and enforced domestically, it is crucial that the international community looks nationally, bolstering the role of judiciaries and other national actors. This viewpoint questions treaty ratification as the current primary means of enforcing health and other human rights and ultimately suggests national courts as an overlooked potential avenue for greater enforcement of international human rights law.
Growing Weaknesses of the International Legal System
The idea that states’ international legal commitments to protect human rights matter stems from the belief that states are either rewarded for ratifying and enforcing treaties or punished for digressing from treaty standards. Reward is meted out in the form of increased investment, aid, and trade from other participating nations, while punishment takes the form of public naming and shaming, economic sanctions, and fragile relationships with a treaty’s participating nations.
Under apartheid, when government policy was founded on principles of racial segregation and denial of rights and freedoms, South Africa was starkly isolated from the world community. After years of reproach from international actors, the government sought to revise its policies and repair past damage. Today, the country’s constitution stands as an exemplar for the protection of all human rights, recognizing the equal importance of civil, political, economic, and social rights.
While state commitment to international law has been successful in fostering respect for health and other human rights, the system has also been shown to falter with respect to compliance. Even states with liberal democracies—whose constitutions stand as bastions of human rights— question the international system’s ability to recognize and treat states as sovereign actors. While individuals are the ultimate beneficiaries of international human rights law, states are still the primary subjects of these laws, and the complexity in implementing the terms of international treaties stems from the fact that states are both subjects and creators of a system to which they have agreed to comply. Studies increasingly suggest that if the leaders of a state being punished for noncompliance view the international legal regime as an attack on the state’s sovereignty and identity, then any system based on reward and punishment can be counterproductive. In other words, even internationally accepted punishment processes can backfire if a targeted state views the motivations of the “entity” encouraging the punishment as suspect. This may compel states to refrain from ratifying treaties, or even to denounce the system altogether.
Catalyst and Case-in-point: The United States
For much of the 20th Century, the United States was an active proponent of the international human rights regime. When deprivations of rights occurred in countries around the world, the U.S. was often the first to call out a state’s behavior, and was arguably more vigorous than its counterparts in mobilizing foreign aid, sanctions, and military intervention to enforce global human rights treaties and standards.
Today, the American healthcare landscape speaks to a contradictory standard. When it comes to the domestic recognition and enforcement of treaties, the U.S.’ track record remains skeptical at best. With respect to the right to health, the country has yet to ratify the International Covenant on Economic, Social, and Cultural Rights (“ICESCR”) and the Convention on the Rights of the Child (“CRC”), the two major human rights treaties recognizing economic and social rights. Even where treaties have been ratified, their domestic incorporation and implementation still remains uncertain.
More recently, the U.S.’ resistance to the right to health has been magnified by the COVID-19 crisis. On May 29, 2020, President Trump announced that the U.S. would halt its funding to the WHO and pull out of the agency, on grounds that the organization is ill equipped to lead global pandemic responses. Under the IHR, member states are to provide the WHO with information about “unusual public health events” that may become international emergencies and, in turn, the WHO assesses whether the information presented constitutes evidence of a public health emergency of international concern. Then, if necessary, the organization takes regulatory actions in the form of technical guidance, recommendations, or reports to guide state responses. According to the U.S., the WHO as an international regulatory body has taken on an active role in decision-making during the COVID-19 pandemic, a role that would otherwise be filled by leaders of individual nations. The crux of the U.S.’ argument, then, is that in relying on experts rather than heads of state, the WHO has drawn into question the legitimacy of its decisions. In a world where states are questioning the legitimacy of the international legal order as a whole, I argue that working within national systems may offer unique paths for shaping the development of international law.
National Institutions as Enforcers of the Right to Health
Enforcement of international law depends on the extent to which its norms have been received by states. Over the years there has been a positive trend, with national laws growing to be more in line with international consensus. Not only has national politics had to concern itself with the ways of the world outside its borders, but national institutions have as well. Matters before domestic courts now involve a plethora of transnational issues, such that a variety of courts find themselves influenced by rules and precedents beyond their borders.
Similar to politics and institutions, national constitutions have not remained outside the influence of international law. In an effort to uphold the inherent value of human dignity and ensure the protection of human rights in accordance with international standards, many national constitutions protect not only civil and political rights, but also health and other social rights. Some constitutions even require judges to turn to international law as a part of the interpretive judicial process. This has enabled individuals to seek protection of health rights through different sources before courts.
Yet even when courts may not reference international law, or when constitutions may diverge from the ways of the international community by limiting the protection they afford to health in comparison to civil and political rights, international law’s influence lingers. This is because a great deal of international pull occurs through complex social and legal processes, where state institutions have been influenced beyond their country’s borders to adopt principles of international law, even if they have used different terms. The right to health, for example, may not always be directly justiciable by courts, but it can still be upheld through civil and political rights. Harold Koh has framed this as a transnational legal process “whereby global norms of international human rights law are debated, interpreted, and ultimately internalized by domestic legal systems.” For Goodman and Jinks, this process happens through socialization, whereby courts seeking to further a transnational dialogue around rights may feel pressures to assent to the ways of the world community.
Today, courts have come to comprise a global community. They have referred to each other in their decisions, furthering the domestic “judicialization” or “legalization” of international norms. Even U.S. courts, namely the U.S. Supreme Court—which at times has been jurisprudentially hostile toward international and comparative sources—have occasionally shown respect for the international system. In 2005, the U.S. Supreme Court cited the Convention on the Rights of the Child when it struck down the juvenile death penalty, despite the fact that the Convention is not binding in the country.
Judges coming from varying legal traditions have their differences, but many also feel more bound to their common institutional identity and shared obligations of upholding and developing the rule of law than they are to their particular legal roots. Thus, in a number of instances where treaties have not been incorporated or the international legal system as a whole has been denounced, courts have been able to ensure the protection of rights in accordance with standards of international law.
The right to health, in particular, has come to comprise a “core, unifying standard,” which has been bolstered by courts in dialogue with one another. Courts in countries where health is not recognized as a directly enforceable right have turned to civil and political rights to uphold the equal importance of health and other social rights. And in the United States, where health is not constitutionally recognized as a right, courts have turned to nondiscrimination and equality rights to encompass health under their umbrella. While terminologies like this may diverge between nations, the effect is still to ensure the protection of norms as understood under international law.
The international legal regime for human rights has been a pillar for international order. But in an era where states have increasingly come to question the legitimacy of the system as a whole, there may be more potential to strengthen the reception of international law by turning nationally. We would be wise to begin placing more consideration on the work that courts and other national institutions have been doing to further the enforcement of the right to health.
[*] Dalla Lana School of Public Health, University of Toronto.
 See, e.g., Lawrence Gostin et al., Towards a Framework Convention on Global Health: A Transformative Agenda for Global Health Justice, 13 Yale J. Health L. Pol’y & Ethics (2013).
 Allyn Taylor et al., Solidarity in the Wake of Covid-19: Reimagining the International Health Regulations, 396 Lancet 82, 82 (2020).
 See, e.g., Eric Neumayer, Do International Human Rights Treaties Improve Respect for Human Rights?, 49 J. Conflict Resol. 925 (2005); Min Zhou, Signaling Commitments, Making Concessions: Democratization and State Ratification of International Human Rights Treaties, 1966-2006, 26 Rationality & Soc’y 475 (2014).
 See e.g., Emilie M. Hafner-Burton & Kiyoteru Tsutsui, Justice Lost! The Failure of International Human Rights Law to Matter Where Needed Most, 44 J. Peace Res. 407 (2007); Oona A. Hathaway, Do Human Rights Treaties Make a Difference?, 111 Yale L.J. 1935 (2002).
 Rochelle Terman, Rewarding Resistance: Theorizing Defiance to International Norms (2017) (unpublished manuscript) (available on author’s website).
 Matthew J. Hornsey et al., “It’s Ok if We Say it, But You Can’t”: Responses to Intergroup and Intragroup Criticism, 32 Eur. J. Soc. Psychol. 293 (2002); Matthew J. Hornsey, Why Being Right is Not Enough: Predicting Defensiveness in the Face of Group Criticism, 16 Eur. Rev. Soc. Psychol. 301 (2005).
 Andrew Moravcsik, The Paradox of U.S. Human Rights Policies, in American Exceptionalism & Human Rights (Michael Ignatieff ed., 2005).
 Andrew Joseph et al, Trump: U.S. will Terminate Relationship with the World Health Organization in Wake of Covid-19 Pandemic, Stat News (May 29, 2020), https://www.statnews.com/2020/05/29/trump-us-terminate-who-relationship/.
 Mika Aaltola, Covid-19 – A Trigger for Global Transformation? Political Distancing, Global Decoupling and Growing Distrust in Health Governance, (Finnish Inst. Int’l Aff., Working Paper No. 113, 2020).
 See, e.g., Civil Rights Vigilance Committee v. Union of India, (1982) 1983 AIR 85, ¶ 13 (Kant.) (India) (where the High Court explained, “To understand international law it is necessary to appreciate its close relationship to the internal law of states, or as lawyers say, the municipal law of states, for it is increasingly penetrating that sphere”).
 Antoine Hol, Highest Courts and Transnational Interaction: Introductory and Concluding Remarks, 8 Utrecht L. Rev. 1 (2012).
 Eleanor D. Kinney et al., Provisions for Health and Health Care in the Constitutions of the Countries of the World, 37 Cornell Int’l. L. J. 285 (2004).
 See, e.g., S. Afr. Const., 1996, art.39(1)(b); India Const, art. 51(c).
 Harold Koh, How is International Human Rights Law Enforced? 74 Ind. L.J. 1397 (1999).
 Id. at 1399 (emphasis omitted).
 Ryan Goodman & Derek Jinks, How to Influence States: Socialization and International Human Rights Law, 54 Duke L. J. 621 (2004).
 Anne Marie Slaughter, A Global Community of Courts, 44 Harv. L. J. 191 (2003).
 Roper v. Simmons, 543 U.S. 551 (2005) (where Justice Kennedy explained that the United States was “alone in a world that has turned its face against the juvenile death penalty” and that it was time that its highest court “acknowledge the overwhelming weight of international opinion”).
 Slaughter, supra note 17.
 Brigit Toebes, Global Health Law: Defining the Field, in Research Handbook on Global Health Law 2,4-5 (Gian Luca Burci & Brigit Toebes eds., 2018).
 See, e.g., S.P. Gupta v. Union of India, (1981) 2 SCR 365 (India) (where the Supreme Court of India held that civil and political rights are meaningless unless accompanied by social rights necessary for their fulfillment).
 Allison K. Hoffman, A Vision of an Emerging Right to Health Care in the U.S.: Expanding Health Care Equity Through Legislative Reform, in The Right to Health at the Public/Private Divide: A Global Comparative Study 345 (Aeyal Gross & Colleen Flood eds., 2014).