1 In 2000, the international community adopted eight Millennium Development Goals (MDG) with targets to be reached by 2015. MDG 5 calls on the global community to reduce maternal mortality by three quarters by 2015 and to achieve universal access to reproductive health. The Human Rights Council identifies a range of human rights directly implicated by maternal mortality and morbidity, namely, the “rights to life, to be equal in dignity, to education, to be free to seek receive and impart information, to enjoy the benefits of scientific progress, to freedom from discrimination, and to enjoy the highest attainable standard of physical and mental health, including sexual and reproductive health”. Resolution 11/8 (para. 2), United Nations Human Rights Council [http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.39_AEV-2.pdf]
2 As was evident in negotiations surrounding the Optional Protocol to the ICESCR detailed in
3 For a detailed examination of extraterritorial obligations please see ref.
. For an examination of the issue of international assistance and cooperation and health and human rights obligations beyond borders please see the volume of ref.
4 Please see the reports of Paul Hunt and Anand Grover [http://www.ohchr.org/EN/Issues/Health/Pages/AnnualReports.aspx]. Hunt’s reports included missions to pharmaceutical companies as well as a focus on more neglected right to health issues like mental disability and maternal mortality. Grover has also chosen to explore his mandate broadly examining guidelines for pharmaceutical companies in relation to access to medicines. [http://www.ohchr.org/EN/Issues/Health/Pages/SRRightHealthIndex.aspx].
5 We shall use the term global health obligations to refer to the international legal obligations found in international human rights treaties including the International Covenant on Economic, Social and Cultural Rights (ICESCR). The scope of these obligations is not yet fully defined but has been examined by the UN Special Rapporteur on the Right to Health, the Committee on Economic, Social and Cultural Rights and other legal scholars. The recently launched Joint Learning Initiative on National and Global Responsibility for Health (JALI) was formed to rigorously and systematically address such issues including clarifying more precisely the responsibility of all states and that of the international community with respect to the right to health and “clarify the essential package of health goods and services to which all human beings are entitled as part of their right to health.”
6 For some scholars compliance is the key measure for evaluating any theory of international law. Many wealthy powerful states and non-state actors violate human rights beyond their borders on a daily basis. In no way do we intend to suggest that our results show there is increasing respect for the rights of people in third states or compliance with international human rights law
7 As noted above General Comment 14, the work of the Special Rapporteurs on the right to health and the research undertaken by the JALI offer guidance on this issue , see ref.
 and (4,5). Further authoritative guidance regarding states’ extraterritorial obligations can be found in the Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights which were agreed in October 2011 by a group of prominent international legal scholars. [http://www.icj.org/dwn/database/Maastricht%20ETO%20Principles%20-%20FINAL.pdf]
8 See article 38.1 of the Statue of the International Court of Justice which states that the primary sources of international law are international treaties and conventions, customary practices of states accepted as law and general principles of law common to most legal systems. Statue of the International Court of Justice. 59 Stat. 1055, 33 U. N.T.S. 993; 1945.
9 In January 2011 a newspaper article detailing small scale grantee/implementer corruption led some high income states to delay paying pledged funds to the Global Fund. In response the Global Fund created an Independent Inspection Panel which undertook a wide-ranging review of Global Fund’s operations. The wide-ranging recommendations identified many areas for improvement but have been criticized for their breadth. Most high income states have responded positively to the report. Far more important was the decision by the Global Fund Board to “cancel” (postpone) a pledging round (Round 11). The ongoing global financial crisis was blamed for this decision which will have a huge impact on scaling up treatment for HIV and thus result in the premature death of many. At this stage it is not possible to determine whether or not this decision reflects a lack of confidence in the Global Fund model or is truly a result of the crisis. For details see Aidspan: The Global Fund Observer, Issue 158, 20 September, 2011. [http://www.aidspan.org/documents/gfo/GFO-Issue-158.htm]
10 For methodological background see ref.
. For an example of this approach see ref.
11 Belgium has ratified the ICESCR, the United States has signed but not ratified the ICESCR. All European Union member states have ratified or acceded to the ICESCR but the European Commission is not a party to the ICESCR. For details concerning contributions and pledges to the Global Fund please see:[http://www.theglobalfund.org/en/about/donors/public/]
12 Whether or not the internalization of a norm should be viewed as compliance like behaviour or jurisgenerative, i.e. creating a new norm that is to be complied with is beyond the scope of this essay.
13 The UN Special Rapporteur on the right to food, Olivier De Schutter, observes that the International Court of Justice encourages the recognition of the Universal Declaration of Human Rights as a general principle of international law noting that as far back as the Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland-Albania)(I.C.J. Reports 1949, 4 at 22) the courts mentioned “obligations… based … on certain general and well-recognised principles” cited in ref.
. Also see ref.
14 World Health Organization: Constitution of the World Health Organization, 14 U.N.T.S. 186, 1946. The preamble proclaims that the enjoyment of the highest attainable standard of health is a fundamental right of every human being without distinction, and that governments are responsible “for the health of their peoples which can be fulfilled only by the provision of adequate health and social measures.”
Universal Declaration of Human Rights, G.A. Res. 217 (III) 1948, UN Doc A/810, p. 71. Article 25.1 states that, “everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services.”
International convention on the elimination of all forms of racial discrimination, G.A. Res. 20/2106; UN GAOR 2106 (X) 1966: U.N.T.S. 195; International covenant on economic, social and cultural rights, G.A. Res. 21/2200A, UN GAOR Supp. (No. 16) at 49. UN Doc A/6316 1966. Convention on the elimination of all forms of discrimination against women, G.A. Res. 34/180, UN GAOR, 34th Sess., Supp. No. 46 at 193 UN Doc.A/34/46 1979. Convention on the rights of the child, G.A. Res. 44/25, UN GAOR, 44th Sess., Supp. No. 49, at 166, UN Doc. A/44/25 1989. Convention on the rights of persons with disabilities, G.A. Res. 61/106; 2006, UN GAOR, 61st Sess. Annex I, UN Doc. A/RES/61/106 (2006).
Charter of the United Nations, signed 1945, 59 Stat. 1031, entered into force Oct. 24, 1945. [http://www.un.org/en/documents/charter/chapter9.shtml] Article 55 (c) notes that the UN shall promote “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.” Article 56 also uses mandatory language to refer explicitly to the duties of members to take joint and separate action to achieve the purposes set out in article 55.
18 Article 2.1 of the ICESCR states “Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources.”
19 Articles 4 and 23- specifically referencing the importance of international cooperation and assistance in, inter alia, achieving the right to health. Article 23(4) of the Convention on the Rights of the Child (CRC), affirms that “States Parties undertake to promote and encourage international cooperation with a view to achieving progressively the full realization of the right recognized in the present article. In this regard, particular account shall be taken of the needs of developing countries”. For a rich analysis please see ref.
20 Article 32 of the Convention on the Rights of Persons with Disabilities notes that States Parties, “recognize the importance of international cooperation and its promotion, in support of national efforts for the realisation of the purposes and objectives of the present Convention, and will undertake appropriate and effective measures in this regard.”
21 Commenting on this issue in 1987 (prior to the 1990 release of General Comment 3 on the nature of States parties’ obligations), Philip Alston noted, “A logical implication of the use of the terminology of rights. In other words, there would be no justification for elevating a claim to the status of a right (with all the connotations that concept is generally assumed to have) if its normative content could be so indeterminate as to allow for the possibility that the rights holders possess non minimum entitlement, in the absence of which a State Party is to be considered in violation of its obligations.” p. 352–353 in
22 For example Article 24(4) of the CRC recognizes that as with other economic and social rights, the rights enshrined in the CRC will be achieved progressively and not immediately.
23 The minimum core approach as developed by the Committee has generated controversy. Katharine Young provides a challenging critique of the minimum core approach see ref.
. John Tobin labels the minimum core elucidated in General Comment 14 to be “unprincipled and impractical. The long list of measures required of states is so onerous that few states, if any, are likely to adopt such an approach.” (p 48)
24 An example of the importance of the core obligation to develop a national health plan is evidenced in the work of major global health actors; for example, the Health Systems Funding Platform (bringing together the GAVI Alliance, the Global Fund and the World Bank and coordinated by the WHO) requires that a national health plan (assessed and refined through a joint assessment process) serve as the basis for all health related funding that it coordinates. [http://www.gavialliance.org/resources/HSF_Platform_FAQ_15.01.2010.pdf]
25 Specifically paragraph 47 affirms “a State party cannot, under any circumstances whatsoever, justify its non-compliance with the core obligations … which are non-derogable”
26 For a rich analysis of potential perils associated with the minimum core approach please see ref.
. They argue that “while we see certain problems with the minimum core approach, and in particular with the idea of non-derogability, we believe that a cautious continuation of the doctrine is warranted at the present time. However, it must be understood in context.” p. 495.
27 The 40 USD estimate can be found in ref.
. The contents and cost of a basic package are disputed but even a low estimate is far above what the world’s poorer countries can afford. For a recent examination of the costing issue please see ref.
28 “Such minimum core obligations apply irrespective of the availability of resources of the country concerned or any other factors and difficulties.” Para. 9, ref.
. These Guidelines were prepared by a group of legal experts to outline the emerging consensus within the legal community in the late 1990s as to the specifics of state responsibility and accountability under the ICESCR.
29 Margot Salomon has advanced a more expansive understanding of the obligation of international cooperation requiring, inter alia, wealthy states to address the structural causes of world poverty, see in particular pages 99–104
30 This obligation to provide international assistance is not a bottomless pit. The financial cost of this obligation has been tied to the high income state’s available resources and its obligations to its citizens. Striking the right balance is a complex politically sensitive issue that requires negotiation. The 0.7 percent of GDP goal is one target used by the Committee when examining the conduct of high income state countries. However it is not simply the volume of assistance that is important but also the way in which it is provided; i.e. is it used in a manner which supports or undermines human rights in a low-income state?
31 The pitfalls of assessing when a state has expanded the maximum of available resources have been explored by numerous commentators including ref.
. Further, establishing the appropriate benchmarks and indicators to assess in determining whether a state is unwilling or unable is contentious. As Tomasevski has argued in some cases it may be more about policy than poverty. See ref.
. Ensuring that the human rights of residents of an unwilling state are fulfilled requires creative solutions from the international community such as cooperating with legitimate civil society groups and NGOs. They also suggest the need for a deeper analysis and reform of structural impediments to the realisation of rights as suggested by Salomon, see ref.
32 Unlike “older” causes of premature death including; malaria, tuberculosis, diarrhoea and maternal mortality, when the first cases of AIDS appeared they posed a new challenge to the World-how to diagnose this new disease, the cost of investing in research to find a treatment and cure etc. Once life-saving treatment was available another challenge arose. Would treatment be made available to those in resource poor settings-the countries most affected by HIV/AIDS? Citing the United States Centers for Disease Control Morbidity and Mortality Weekly Report (5 June, 1981)
33 Jonathan Mann’s ground-breaking research on AIDS led him to advocate and research on the linkages between health and respect for human rights. As Head of the World Health Organization’s Global AIDS Program his advocacy and research on the connection between respect for human rights and vulnerability to HIV greatly influenced the response to HIV/AIDS. See ref.
. Following his death the muli-layered implications of the connection between health and human rights have been rigoursly explored by scholars including notably Sofia Gruskin. See ref.
34 For further details see the Global Fund’s website [http://www.theglobalfund.org/en/whoweare/?lang=en.]
35 As noted above the Global Fund has no country-level presence and is designed to operate through the CCM, a multi-sectoral country level partnership.
36 Given the recent funding crisis at the Global Fund it can be argued that this inclusive structure is proving a step to far for some high income states that prefer being in the driver’s seat.
37 For an example please see ref.
38 As Benedict Kingsbury argues convincingly compliance is not simply “‘correspondence of behaviour with legal rules”
. He posits that “Concepts of ‘compliance’ depend upon understandings of the relations of law, behaviour; objectives, and justice.” (at 346) Thus compliance is not a free-standing concept but derives its meaning from different theories each of which impacts on the definition of compliance.
39 Theories of international legal compliance remain underdeveloped as traditionally such issues were the purview of international relations scholars, not international lawyers.
40 See the works of international relations scholars like
 and the work of international lawyers like Kenneth Abbott, e.g.,
41 The work of Anne-Marie Slaughter stresses the importance of a state’s domestic structure and the strength of the rule of law as determinative factors in compliance with international law, see e.g.
42 Koh’s theory evolved from his practical experience in ‘transnational public law litigation’ against both US and other foreign officials on behalf of victims of human rights abuses see e.g.
43 For a description and analysis of the forces shaping this process see ref.
. Koh’s reference to the US should not be understood as limiting this analysis to the US but rather as exemplary for domestication in domestic law and policies.
44 The New Haven School of International Law contributed greatly to ground breaking scholarship on legal pluralism arguing that through the interaction, interpretation and enforcement behaviour of multiple diverse communities transnational law becomes important and even transformative
. See also the very influential work of the Chayeses arguing that compliance with international law is often best achieved through a managerial approach rather than through sanction
45 Goodman and Jinks’s work on the role of the acculturation process in influencing states compliance with human rights law takes transnational legal process one step further see ref.
. In this article they define acculturation as “the general process by which actors adopt the beliefs and behavioral patterns of the surrounding culture” (at p 726). Like Koh their work responds to a trend in international law and human rights scholarship to focus on coercion and persuasion based theories of international law moving beyond asking why nations comply with human rights law to asking how we might better design regimes so that they enhance and facilitate respect for human rights.
46 Koh cites the complex history of the UK’s incorporation of the European Convention on Human Rights into domestic law as such an example.
47 For a discussion of the ‘jurisgenerative process’ see ref.
. Arguing for example that “the position that only the state creates law… confuses the status of interpretation with the status of political domination.” (p. 43)
48 One area that we identified as problematic was the fact that the Global Fund’s fourth largest recipient in terms of cumulative disbursement of grants is China. [http://www.globalhealthfacts.org/data/topic/map.aspx?ind=60]. It is difficult to argue that China is as a country that lacks domestic capacity to fulfil its obligations. We thus chose to focus on the potential of the Country Coordinating Mechanism as an example of a new interpretation or approach to discharging this element of the core content.
49 The Paris Declaration on Aid Effectiveness, 2005 and the Accra Agenda for Action 2008 aim at changing county behaviour and increasing the effectiveness of aid to help achieve the MDGs. [http://www.oecd.org/dataoecd/30/63/43911948.pdf]
50 The impact of GHIs on the health systems of low income countries is a much debated topic and the evidence is mixed. In some countries disease specific interventions may have weakened other health services whereas in other countries disease specific interventions appear to have strengthened the wider health systems
51 The reaction of civil society and activists to the “cancellation” of a recent pledging round for the Global Fund suggests that low income country activists and high income country activists now view cooperation with the Global Fund as a norm and are pushing low-income governments to step up their health assistance and for high-income governments to fund the Global Fund. See [http://www.aidspan.org/documents/gfo/GFO-Issue-174.htm] [http://www.aidspan.org/documents/gfo/GFO-Issue-170.pdf]
52 Politicians in many high income state countries choose to use the Global Fund as the main vehicle for funding ARV treatment in the Global South instead of shifting towards bilateral aid structures to provide such funding.
53 In its 2010 election manifesto the British Conservative party pledged to enshrine the 0.7% of GNI to ODA in law but as of March 2012 the Conservative led British Government had failed to do so.
54 The more conservative approach discussed by Skogly see ref.
, namely; the obligation to ensure that their development assistance does not violate economic and social rights, is more in line with current high income state policy e.g. of the UK’s DFID and Sweden’s SIDA.
55 Balakrishnan Rajagopal calls for international lawyers to engage in social movements and activism and for them to use international law and arenas to expand the space available for transformative politics and move away from its Western, elitist, male-centered imperial past
56 In discussing the potential of human rights Schrecker et al. assert, “their theoretical strength as a challenge to the norms of the global marketplace” and stress “the importance of collaboration between those working in human rights and in social determinants of health to define common objectives and develop research programs and advocacy strategies for moving from compelling theory to effective practice”