This article has been written by Ms. Aninditha Gandhe, a 2nd year student of Symbiosis Law School, Hyderabad. 

Abstract

This legal research paper explores the Framework Convention on Global Health (FCGH), a proposed legally binding global health treaty championed by an international consortium of health experts. The FCGH is rooted in the fundamental right to health and seeks to address global health disparities comprehensively. The treaty aims to bridge health divides within and between nations, fostering equitable distribution of health resources and outcomes.

The FCGH’s principles include enhancing accountability and capacity for the universal right to health, promoting universal access to quality health services, and advancing the right to health beyond national boundaries. The paper discusses the potential impact of the FCGH in creating a paradigm shift in global health governance, acknowledging challenges in implementation due to diverse legal systems, cultural contexts, and economic development levels.

However, the paper critically analyzes concerns regarding potential redundancy, feasibility challenges, and the questionable impact of the FCGH. It identifies alternative options for revising the proposal, such as exploring less formal frameworks or fundamental reform of the World Health Organization.

In conclusion, the FCGH holds transformative potential but faces challenges that require careful consideration and refinement. Striking a balance between global health aspirations and pragmatic implementation is crucial for the success of any framework seeking to transform the global health governance landscape.

Introduction

Over an extended period, a consortium of international health experts and professionals has fervently advocated for establishing a legally binding global health treaty known as the Framework Convention on Global Health (FCGH). This proposed treaty, firmly anchored in the fundamental right to health, aims to serve as a comprehensive framework that addresses and rectifies disparities in health outcomes within nations and their respective boundaries.

At its core, the FCGH envisions a proactive and systematic approach to bridge the prevailing health divide on a global scale. By incorporating the right to health as its foundational principle, the treaty endeavours to create a legal mechanism capable of ameliorating health inequities across diverse nations. Furthermore, the FCGH is designed to function as a catalyst for diminishing health disparities within individual countries, thereby fostering a more equitable distribution of health resources and outcomes.

This groundbreaking initiative seeks to transcend mere rhetoric and establish tangible legal commitments on a global scale, thereby fostering a collaborative and accountable response to health challenges. The FCGH, by its legally binding nature, aspires to instigate transformative change in global health governance, ushering in a new era characterized by enhanced health equity and access for all. As the discourse surrounding the FCGH gains momentum, it becomes increasingly evident that its potential impact extends far beyond a theoretical framework, holding the promise of ushering in a paradigm shift in the global pursuit of health justice. By fostering collaboration among nations, it aspires to create a normative framework that recognizes health as a fundamental human right. However, the implementation of the FCGH is challenging. Navigating diverse legal systems, cultural contexts, and varying levels of economic development poses significant hurdles.

FCGH and its principles 

The Framework Convention on Global Health (FCGH) emerged in 2007 to create a worldwide treaty to tackle the glaring health disparities within and between nations. Over time, the FCGH has evolved, centring around the fundamental principle of recognizing the human right to the highest achievable physical and mental health standard.

As a yet to be developed treaty, the FCGH is envisioned as grounded in the right to health. It focuses on addressing critical deficiencies in ensuring everyone has the chance, regardless of their location or identity, to lead long and healthy lives. It would adopt a comprehensive bottom-up approach, primarily centred on two key objectives. Firstly, it would prioritize substantially enhancing capacity-building efforts, ensuring every nation possesses resilient and efficient healthcare systems. Secondly, the initiative would emphasize establishing clear priorities and directing international assistance towards addressing fundamental survival needs.

Enhancing Accountability and Capacity for the Universal Right to Health

1. Strengthening Compliance and Enforcement: The Framework Convention on Global Health (FCGH) aims to enhance global precision on the right to health, fostering compliance through regional and international mechanisms. It also emphasizes building local and national capacities, involving legal, technical, and civil society sectors to ensure effective implementation and accountability.
2. Empowering Stakeholders: FCGH focuses on empowering communities, civil society, and governments to enforce the right to health. It includes measures to bolster accountability at all levels, enabling civil society to hold governments accountable through access to justice and meaningful participation, while ensuring officials have the necessary resources and skills.
3. Advancing Non-Discrimination and Health Equality: The FCGH clarifies and broadens the scope of non-discrimination, incorporating marginalized groups like migrants. It mandates systematic actions to address health inequities, reinforcing a commitment to substantive health equality nationally and globally.
4. Ensuring Transparency and Resource Protection: FCGH demands transparency and fights corruption in health sectors, setting standards for resource allocation disclosure. It ensures accountability for the misuse of public health resources, thereby safeguarding the funds allocated for health.

Universal Access to Quality Health Services

1. Equal Access and Quality Services: FCGH ensures equal access to high-quality health services for all, especially marginalized groups, promoting equity and committing states to prevent health-related impoverishment.
2. Accountable Universal Health Coverage: The FCGH establishes inclusive and evidence-based processes for determining comprehensive health services, setting timelines for achieving universal access to high-quality health services and goods, fostering accountability.
3. Resource Standards for Health: FCGH facilitates state accountability for utilizing available resources for health, establishing targets for national health financing and international health development assistance.

Advancing the Right to Health Beyond Boundaries

1. Holistic Approach to Social Determinants: FCGH incorporates provisions ensuring all government ministries protect and promote the right to health through transparent and inclusive impact assessments in all policies.
2. Corporate Responsibility: The FCGH prioritizes the right to health over corporate rights, enforcing responsibilities through regulations or state contracts, aligning actions with the UN Guiding Principles on Business and Human Rights.
3. Extraterritorial Responsibilities: FCGH clarifies states’ obligations to uphold the right to health beyond borders, especially concerning private sector actors and interactions with international agreements and institutions. It contributes to fulfilling people’s right to health extraterritorially, emphasizing equity and substantial investment in research and development.

Prospects of FCGH

Proposing an innovative approach to address global health challenges, a Framework Convention on Global Health could be pivotal in establishing a contemporary right to health. By imbuing the force of law, this treaty would empower civil society advocates to scrutinize governmental actions through legal channels, parliamentary processes, and media engagement. The binding nature of the treaty would encourage compliance through a strategic blend of creative incentives and sanctions.

Operating within international law, the Framework Convention on Global Health would safeguard the right to health, ensuring its preservation amidst other legal frameworks such as trade, investment, and intellectual property. This is crucial, as these aspects could undermine the fundamental right to health if left unaddressed.

An envisioned treaty has the potential to create a legal framework conducive to achieving the ambitious goals set forth by the Lancet Commission on Investing in Health, particularly the concept of a grand convergence in global health. The Framework Convention on Global Health could pave the way for genuine global health convergence, fostering collaboration among nations and addressing health disparities domestically and internationally. Its comprehensive approach would demand a spectrum of actions aimed at closing the health gaps that disproportionately affect disadvantaged populations, resulting in premature mortality among the less affluent and marginalized communities. 

The proposed treaty aims to establish comprehensive standards and targets, implement monitoring processes, and ensure accountability to uphold the right to health. Its provisions would encompass a domestic and international financing framework, ensuring universal, affordable, and accessible health care and public health services. Additionally, it would encompass nutrition, food marketing, and subsidy regulations.

The treaty advocates for civil society participation in developing and monitoring health policies. Furthermore, it could facilitate the incorporation of right to health impact assessments, human rights education, capacity building, and national strategies emphasizing universality, comprehensiveness, equality, and accountability. The stipulations within the treaty would promote health systems that treat all individuals equally, regardless of income or status. Overall, the envisioned Framework Convention on Global Health seeks to usher in an era where every individual worldwide fully benefits from advancements in global health.

Challenges of FCGH 

Evaluating any new international law proposal necessitates a comprehensive assessment of its costs compared to benefits and alternative options, ensuring that its adoption does not exacerbate issues rather than provide solutions. In this context, a systematic review of existing research literature was undertaken to categorize and analyze the limitations and unintended negative consequences of the proposed Framework Convention on Global Health (FCGH). Subsequently, a critical analysis was conducted, interpreting these findings through economic, ethical, legal, and political science perspectives.

Out of the 442 documents retrieved, they underscored concerns related to the FCGH, including the potential duplication of existing efforts, feasibility challenges, and questionable impact. The critical analysis further unveiled negative consequences stemming from the proposed form of international law and the intended functions of the FCGH, such as influencing national budgets, realizing health rights, and resetting global governance for health.

The identified drawbacks encompass direct costs of international law, opportunity costs, the risk of reducing political dialogue through legalizing political interactions, the entrenchment of principles with only contemporary relevance, imposition of foreign values on less powerful countries, imposition of externally defined goals, prioritization of individual rights over population-wide well-being, complication of global governance for health, weakening of the World Health Organization (WHO), reduction of participation opportunities for non-state actors, and provision of sub-optimal solutions for global health challenges.

The first limitation is the potential duplication of efforts, as existing human rights treaties, international institutions, and global funds already address the concerns proposed by the FCGH. Introducing new legal frameworks and obligations may interfere with or undermine current initiatives, leading to competition with established bodies like the World Health Assembly.

The second limitation revolves around feasibility concerns. The FCGH is seen as costly in negotiation and implementation, with doubts about achieving political agreement. The proposal demands legal commitments, and the uncertainty of the convention-protocol process may discourage states. 

The third limitation questions the FCGH’s impact, citing the time needed for effectiveness and the unproven influence of international law on health outcomes. The proposal is criticized for not addressing key global governance challenges, such as the democratic deficit, political accountability, institutional fragmentation, and regime complexity. 

In summary, the FCGH faces challenges regarding potential redundancy, feasibility, and questionable impact, with doubts about its ability to address fundamental global governance issues in health.

In light of these findings, four alternative options for revising the FCGH proposal are suggested to address its weaknesses and enhance its potential impact. These options include: 1) abandoning international law as the primary commitment mechanism and instead pursuing agreement towards a less formal “framework for global health”; 2) seeking fundamental constitutional reform of the WHO to address gaps in global governance for health; 3) mobilizing for a separate political platform that bypasses the WHO entirely; or 4) narrowing the scope of sought changes to a specific governance issue, such as financing for global health needs.

Conclusion
In conclusion, the Framework Convention on Global Health (FCGH) represents a transformative vision in global health governance, advocating for a legally binding treaty anchored in the fundamental right to health. The FCGH aims to bridge health disparities globally through a comprehensive approach, emphasizing accountability, universal access to quality health services, and addressing social determinants. While the proposed treaty holds the promise of ushering in a new era of health justice and collaboration, it faces significant challenges, including concerns about redundancy, feasibility, and its ability to address fundamental global governance issues.

The critical analysis underscores potential drawbacks, such as the risk of duplicating existing efforts, feasibility challenges, and uncertainties about its impact on global health outcomes. In light of these findings, alternative options are proposed to enhance the FCGH’s potential impact, including exploring less formal frameworks, fundamental reform of the World Health Organization, alternative political platforms, or narrowing the scope of sought changes.

Careful consideration and refinement of the FCGH proposal are essential to address these challenges and maximize its potential benefits. Striking a balance between global health aspirations and pragmatic implementation will be crucial for the success of any framework aiming to transform the landscape of global health governance.

References 

This article was originally written by Ames Dhai et al. published on PubMed Central. The link for the same is herein. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3791648/ 

This article was originally written by Steven J. Hoffman and John-Arne Rottingen published on Health and Human Rights Journal. The link for the same is herein. https://www.hhrjournal.org/2013/10/dark-sides-of-the-proposed-framework-convention-on-global-healths-many-virtues-a-systematic-review-and-critical-analysis/ 

This article was originally written by Lawrence O. Gostin and Eric A. Friedman published on Georgetown University Law Center. The link for the same is herein. https://core.ac.uk/download/pdf/70375031.pdf 

This article was originally written by K. Srinath Reddy et al. published on The Lancet. The link for the same is herein. https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(14)61077-1/fulltext 

This article was originally written by Martin Hevia published on Think Global Health. The link for the same is herein. https://www.thinkglobalhealth.org/article/framework-convention-global-health 

This was published on the FCGH Alliance. The link for the same is herein. https://fcghalliance.org/key-principles-of-an-fcgh/