Professional field-work: constructing global health law as an ‘emerging field’

ABSTRACT

Constructing international legal fields is the work of experts. Such experts struggle over a field’s substantive content, normative direction and formal boundaries. Less commonly observed are the ways in which fields are described as part of such work. In global health law, experts have used the term ‘emerging field’ to capture its ambivalent status between a non-field and an established field. In deploying this term, they demonstrate the term’s productive uses in establishing a plural, open-ended and experimental sphere of professional action that overcomes the criticisms of its predecessor, international health law. In theorising the notion of ‘emerging field’ as an example of professional field-work, this article points not only to the multiple registers of this nascent governance regime, but also to the changing style of international legal expertise itself.

KEYWORDS:

• Expertise
• field
• field-work
• legal performativity
• global health law

1. Introduction: a new attitude to fieldness

Over the last fifteen years, global health law (GHL)¹ has emerged as a new sphere of professional activity for domestic and international lawyers, health policymakers, advocacy groups, and academics.² In keeping with the new governance language of the 1990s, GHL represents a linguistic, conceptual, and normative shift away from its predecessor, international health law.³ To an exclusive interest in norms, state responsibility and disputes was added a concern for regulation, compliance, problem-solving and governance.⁴ Debates that previously considered how states could best rely on treaties and the World Health Organization (WHO) to control the spread of infectious disease were replaced with concerns about how to harness multi-stakeholder processes to maximise human wellbeing as a medical, socio-economic and ecological imperative.⁵ This shift to GHL was an important professional-political achievement, bringing new tools and actors to increasingly global problems ranging from tobacco control to non-communicable diseases.⁶

Beyond these broad changes, the move from international health law to GHL also evinced a discursive shift in experts’ use of the term ‘field’ to describe this new area of professional action. Through international health law’s associations with tropical medicine, the nineteenth and twentieth century Sanitary Conferences and the WHO’s eradication efforts, international health law’s pedigree as a field or branch of public international law had become settled by the end of the Cold War. In a 1988 symposium marking forty years of the WHO, scholars took international health law’s fieldness as read. French-Canadian scholar Michel Bélanger spoke of the need to clarify the content of ‘this field of law’,⁷ while a Soviet colleague, VS Mihajlov, explicitly stated that ‘international health law constitutes a branch of public international law, and is rapidly evolving and encompassing a vast range of subjects … International health law is thus a distinct branch’.⁸ By 2004, experts continued to speak of the ‘implications of global change for the field of international health law’.⁹ Even if international health law was relatively underdeveloped compared to, say, international trade law or human rights, it still warranted designation as a distinct field of international law.

Fast-forward to the burgeoning GHL scholarship of the early 2010s and an expert ambivalence over GHL’s fieldness. Experts had become preoccupied with the status of global health law. Some, satisfied with how well the term international health had served the international community up till then, branded the term global health ‘meaningless jargon’.¹⁰ Others saw it as ‘revolutionary’ for the international community’s approach to human health across the planet¹¹ and a way out of international health law’s ‘inherent limitations’.¹² Some experts preferred to use the familiar language of public international law, reading the seemingly new as a continuation of the old.¹³ A frequent interlocutor in these debates summed up the state-of-play as follows: ‘In general the new has not replaced the old but rather has grown up around it—sometimes complementing, sometimes competing, but not yet overtaking it’.¹⁴

This expert ambivalence was captured in repeated use of the term ‘emerging field’ to describe GHL.¹⁵ By this phrase, experts sought to capture the ‘disjointed’, ‘highly fragmented’ nature of GHL with its ‘undefined boundaries and parameters’.¹⁶ To speak of an emerging field was to invoke associations and images of fragmentation, patchwork organisational mandates, and the challenges of an infant regime.¹⁷ Interestingly, such widespread usage continued even after the initial wave of GHL scholarship as discussions developed into more fine-grained studies of GHL’s scope and direction.¹⁸ Harrington had already described ‘the emerging field of “global health law”’ in 2009,¹⁹ but when the COVID-19 pandemic began over a decade later, Gostin and Meier were continuing to trace ‘the rise of the field of global health law’ as a ‘new field’ born out of international health law.²⁰ In 2022, former WHO legal counsel, Gian Luca Burci, concluded that GHL still occupied a ‘transitional and disorganised state’.²¹

The edited collection, the Research Handbook on Global Health Law, represents a high-point, where the volume’s contributors admit that they were ‘unable to definitively determine whether GHL deserves the label of an emerging or existing branch of international law’.²² As their work progressed, they became ‘less confident’ of GHL’s proper label.²³ The move to GHL, then, involved new discursive cadences including a different way of engaging with the field label. Ambiguity around GHL’s fieldness appeared less a problem than an asset at a time of transformation in global health governance. It demonstrated experts’ modest expectations and the gradual strengthening of the area. To speak of an ‘emerging field’ could galvanise support for a nascent area of law while deferring criticism of its underdeveloped components.²⁴ In a relatively short period, experts had ceased to fret about the questionable fieldness of the area, instead taking its ambivalence as a starting point for further debate and experimentation. It is this open-ended quality of GHL as an ‘emerging field’ and what it permitted that this article examines.

Approached this way, GHL (particularly GHL scholarship) appears as an eclectic space for diverse ways of thinking about global health and law. As an ‘emerging field’, so the argument goes, GHL still has much to work out, both conceptually and in practice, hence the importance of continuing to embed the concept in policy circles and institutional settings. Experts do not attempt to re-establish international health law as a branch of public international law but accept the ‘inescapable necessity [of] work[ing] within a fragmented normative landscape’.²⁵ They acknowledge that ‘global health law is one part of larger, complex global social and political processes’, one way in which ‘collective interests are articulated, rights and obligations are established, and differences are mediated … but not the only one’.²⁶ Rather than imperially asserting themselves over competing worldviews, GHL scholars foster a ‘mindset of inclusiveness, awareness for and respect for different coexisting realities’.²⁷ They admit that the old is dead and the new cannot be born, and calling GHL an emerging field is to pursue post-international health law while accepting its contingencies and contestations.

Theorising ‘emerging field’ as an expert articulation begins to foreground the performativity of what I call field-work, the aspirational or strategic denial, debate and deployment of ‘field’ terminology by experts in a particular governance area.²⁸ Whether experts are guided by a desire for constructive ambiguity or not, to call GHL ‘emerging’ is an important professional speech act. To paraphrase JL Austin, emerging field are words that scholars have succeeded in doing things with, whether in designating GHL an ‘architecture’, ‘system’, and ‘network’ or depicting WHO as ‘coordinator’, ‘leader’, and ‘risk manager’.²⁹ As this paper shows, the positing of foundational metaphors, images as well as normative bases and contexts via expert field-work is largely a matter of expert framing. However, which of these takes priority may also affect the decisions, priorities and allocation of resources in tackling global ill-health. As discussed below, architectural thinking centres institutions and reform efforts as worthy endeavours, while network thinking foregrounds cross-cutting alliances (with or without institutions) on issue-specific matters. Depicting WHO as a global health leader sets priority on executive vision and internal culture while a focus on risk management centres WHO’s role as identifier and manager of global health risks. Although these are differences of degree not of kind, such emphasis affects what problems will be identified, which actors will take centre-stage, and where public and private funds will be allocated. The ‘emerging field’ term, and the open-ended thinking it prompts, has the potential to radically alter how global health is made through law in the twenty-first century.

In what follows, I take the case of GHL to demonstrate how an area’s unsettled status as an ‘emerging field’ facilitates plurality and experimentation around the potential forms, key actors and normative underpinnings of GHL.³⁰ To flesh out this notion of professional field-work, I bring the recent sociological literature on fields to the study of GHL as an ‘emerging field’, keying the discussion to the unsettled interpretive frames and purposes constituting an emerging field (2). Thereafter, I look to global health law as such a field and the various unsettled interpretive frames and purposes that comprise it (3). Specifically, the power of the ‘emerging field’ term is to open up several frames, ie, metaphors for thinking about GHL as architecture, system and network (3.1) and depictions of WHO as coordinator, leader and risk manager (3.2); as well as individual and collective philosophical bases for GHL (3.3). Moreover, the emerging field term has also allowed GHL scholars to somewhat homogeneously position this regime vis-à-vis others, such as trade or environmental law, to undercut the weaknesses of international health law (3.4). The conclusion considers the importance of studying field-work and what it can tell us about changes to international legal expertise (4).

Prompting this study is the need to reckon with new styles of international legal expertise, where style, according to Johns, indicates a way of advancing arguments beyond purely substantive content via communications, connections, and signs.³¹ To this, I add metaphors, images, and rationales. In international law, the expert style is no longer (only) that of the ordained authority preaching from on high, substantive vision in hand, sure of the truth of their knowledge.³² GHL scholarship certainly does not bear such traits. Rather, here and elsewhere, expertise is a set of professional practices resembling a more plural, experimental, and anti-foundationalist style and a ‘doubled sensibility’.³³ Accounting for this changing style is necessary if scholars and practitioners are to understand why such new fields as GHL allocate funding, resources, knowledge, wins and losses the way they do. And considering the productive power of the ‘emerging field’ term is one way to enhance our wider understanding of GHL and of international legal expertise.

2. Professional field-work

French sociologist, Pierre Bourdieu, characterised the field as ‘an area of structured, socially patterned activity or “practice” … disciplinarily and professionally defined’.³⁴ Relying on the idea of a magnetic field, Bourdieu’s field comprised ‘internal protocols and assumptions, characteristic behaviours and self-sustaining values’ that those within it inhabit and reproduce as they cluster around it.³⁵ The burgeoning literature and practice of GHL suggests that a growing set of actors—primarily scholars but also legal practitioners– bear such a set of shared understandings about GHL with its focus on the right to health, multi-stakeholderism, and compliance in global public health. Yet to understand why and how fields emerge, Bourdieu’s theory proves less useful. As Fligstein and McAdam have noted, Bourdieu’s theory of fields has ‘little or nothing to say about how … collective actors produced new identities and frames to form new fields or transform existing ones’.³⁶ Given the prevalence of ‘emerging field’ as a term within GHL, we must therefore go further in attempting to account for the phenomenon and its effects.

Bourdieu was primarily interested in understanding how certain positions within fields correspond to social hierarchies relating largely to class.³⁷ Yet a study of the positions of those inhabiting GHL shows that the ‘relative power of actors is equalized’ in that most, if not all, are affiliated to prominent academic institutions located primarily in the global north or international organisations, such as WHO.³⁸ GHL has been assembled through interlocutors such as Lawrence Gostin,³⁹ Brigit Toebes,⁴⁰ and Gian Luca Burci,⁴¹ located across Europe and North America. Moreover, GHL is an increasingly popular offering on graduate syllabi, with both Georgetown University and the Graduate Institute in Geneva boasting an LLM in Global Health Law.⁴² Given the relatively equal standing and power relations among these institutionally-located groups, it is instructive to consider the connection between such equalised relations and the unsettled or emerging nature of a field.⁴³ Crucially for Fligstein and McAdam, where the status of such groups is relatively balanced, there is much greater potential for ‘jockeying’ and experimentation among these groups over the field’s key terms.⁴⁴

This jockeying and experimentation is not only conflictual, according to Fligstein and McAdam, but cooperative, as groups rely on shared understandings to shape the field. Not all of these understandings are shared, hence the unsettled status of the field, and in particular there may remain differences over the field’s ‘broad interpretive frame[s]’, its purposes, and stakes.⁴⁵ It is the multivocality that emerges from such unsettled understandings and expert interactions that I call ‘field-work’: as part of their professional projects, experts are not only labouring to achieve a certain result in their favour (such as a policy change) but are also labouring over the interpretive frames and normative underpinnings of the field as a way of bringing it into being. Sociological literature hints at this kind of work, but rarely discusses it directly. Bourdieu regarded a field’s boundaries as ‘dynamic borders which are the stakes of struggles within the field itself’.⁴⁶ Similarly, actor-network theorist Michel Callon notes that expert ‘boundary work is real work’ in the sense that it involves mapping an area of study and connecting diverse actors.⁴⁷ The idea of field-work engages directly with the professional effort to shape the frames and foundations of a field as an effort to establish it as authoritative.

I further clarify the concept before examining the use of the ‘emerging field’ term as an example of field-work in GHL. First, the idea of field-work centres the expert and expertise as the actors at the forefront of articulating this emerging field. These experts rely on their intellectual tools and methods to interpret a specialised area of knowledge and practice. This article takes GHL scholars as a set of institutionally-located expert groups with such equal standing as authorities in the international law of public health who are also situated within the wider professional field of international law, with its attendant sensibility and practices.⁴⁸ Second, it goes against Bourdieu’s ‘unified political economy of practice’, which is largely keyed to struggle between groups, to conceive of such groups as engaging in more cooperative relations with one another.⁴⁹ Yet GHL demonstrates how, despite tensions over this area’s key frames and foundations, there remains a deliberative, plural ethos among such groups in their wish to establish GHL as authoritative. Third, to focus on experts and their articulations is not to downplay the wider structures and external constraints incumbent on such experts. To be sure, studying field-work backgrounds the work of collective actors such as states, institutions, or civil society. Yet this study does not discount the ways in which experts on one side and institutions and structures on the other ‘co-produce’ one another.⁵⁰ The focus here is on the expert side of this relationship and those who spearheaded GHL’s characterisation as emerging, rather than the broader patterns that may have facilitated this.⁵¹

Fourth, in discussing GHL–or any other area of global governance–as an ‘emerging field’, it is less important whether GHL qualifies as an emerging field than that the emerging field idea helps experts to make sense of and experiment with various aspects of this new area of law.⁵² This is part of the constitutive power of expert work, in which terminology may produce the metaphors, images, foundations, and wider context required to establish an area like GHL. Lastly, in seeking to capture the plurality of GHL scholarship, I refrain, much like GHL experts themselves, from arguing in favour of one or the other interpretation. By demonstrating the performative or world-making ‘affordances’ of the term ‘emerging field’ beyond certain normative preferences, we may better understand how this emerging field operates and how the style of international legal expertise itself is changing.⁵³

Mapping GHL and contemporary legal expertise relating to it are important efforts at a time of rapidly expanding global health inequalities, which are now being confronted by states and policy-makers beyond the traditional confines of multilateral treaties and the WHO. The experimental COVAX Facility, which ran from April 2020 until December 2023 and established by WHO, Gavi, and others to achieve equitable access to COVID-19 vaccines, exemplifies this new trend in global health governance: a public-private mechanism that populates the GHL architecture or acts as a ‘node’ in the GHL network, and which positions WHO as coordinator and risk manager simultaneously. COVAX also straddles, without seeing to override, regimes of intellectual property law, trade law, and the right to health. With such mechanisms, the style of international legal expertise is changing too: from seeking out coherence, objectivity, and foundations in a field to accepting its fragmentations, alternative meanings, and multiple realities.⁵⁴ I now consider such changing modalities in the context of GHL.

3. Establishing Global Health Law as an ‘emerging field’

While a consensus definition of global health law ‘remains elusive’,⁵⁵ it is generally defined as ‘the legal norms, processes, and institutions needed to create the conditions for people throughout the world to attain the highest possible level of physical and mental health’.⁵⁶ Its norms being ‘sparse’,⁵⁷ GHL signals a wider range of influences and authorities than treaties and custom. Its scope pertains not only to the control of infectious diseases but to any area impacting human health, including non-communicable diseases such as diabetes and cancers, as well as housing and educational infrastructure, natural disasters, and environmental harm.⁵⁸ The health sector is concerned with global health, but so are defence ministries under the aegis of ‘global health security’, and global investors concerned with the economic costs of global ill-health. GHL imagines a world with, but not centred on, the World Health Organization. And being concerned with matters of justice and equity, GHL is a ‘prescriptive as well as descriptive’ term.⁵⁹ For all this innovation, GHL remains, in Burci’s words, an ‘admittedly incomplete’⁶⁰ and ‘emerging field’.⁶¹ Through such writing, GHL experts have posed multiple metaphors for understanding GHL (3.1), new depictions of the WHO (3.2), new normative bases (3.3), and a novel way to position GHL vis-à-vis other regimes (3.4).

3.1. New metaphors in Global Health Law

To denote GHL an emerging field was to prompt new and multiple ways of thinking about public health, global wellbeing, and law. International health law was deemed a ‘distinct branch of international law’, but a branch nonetheless, characterised by a corpus of rules, an institutional framework, and a bounded sphere of activity.⁶² Legal experts in global public health, by comparison, embodied an inventive multivocality as they sought to imagine international health law anew. This appeared first in GHL’s interpretive frames: the metaphors of GHL as architecture, as system and as network which configured actors, ideas, and priorities differently and simultaneously as part of the ‘open-endedness’ of this emerging field.⁶³

3.1.1. Global Health Law as ‘architecture’

Lawrence Gostin has described GHL as a ‘reimagined institutional architecture’.⁶⁴ As with many framings of this emerging field, Gostin’s notion of architecture is not exclusive: he remains open about the possibility of GHL being described differently, and about the fact that GHL is not an established architecture yet. The latter point is backed by the sense that ‘if the international community does not come together with a shared vision and architecture for effective self-governance, [collective] interest will wane’.⁶⁵ Gian Luca Burci is even more direct, stating in 2022 that there remained ‘no global health architecture’.⁶⁶ Such warnings suggest a semi-crystallised architecture, consistent with scholars’ reading of GHL as both less than an established field yet more than purely aspirational.⁶⁷ With these caveats, architectural thinking construes GHL and its actors in particular ways.

First, in the global health literature, architecture denotes form.⁶⁸ In Gostin’s reading, the global health architecture consists of ‘old and new institutions’ from WHO to health financing mechanisms like COVAX. ‘[T]oday there are nearly 200 international health agencies and initiatives’ not counting the ‘myriad international NGOs and foundations that play vital roles in global health’ and these populate the global health landscape as its architecture.⁶⁹ Architectural thinking imagines many new global health institutions and players beyond the central structure associated with international health law, the WHO. These include other international organisations with a growing interest and mandate in health-related matters, such as the World Bank,⁷⁰ international public-private financing partnerships, (the Global Fund, Gavi) or philanthropies such as the Bill & Melinda Gates Foundation. Rather than being addressed under a sole institutional mandate, matters of pandemic preparedness or immunisation are seen as cross-cutting, blurring public/private, formal/informal and domestic/international distinctions while supplementing or supplanting ‘traditional’ organisations.⁷¹ Under this metaphor, institutions remain the primary avenue for realising GHL.

Second, the architecture metaphor implies ‘rigidity and intentional design’.⁷² The spatiality invoked is the careful construction of a ‘functional vision’ by specific interest- or value-driven actors.⁷³ An architecture is spatial but variously located, hence the pandemic preparedness architecture which comprises the World Health Assembly (WHA), national health agencies, Gavi, Bill Gates, and others. An architecture need not have a fixed locus of activity, meaning WHO appears less as a central planner and more a decentralised coordinator of program-specific interventions. The architecture metaphor thus brings new actors into the global health frame as ‘norm entrepreneurs’ or architects.⁷⁴

Third, fields of law characterised in architectural terms are prone to the same constraints as architecture itself. They may be skeletal or overpopulated; they may be prone to sprawl or crumble from neglect; what lies beyond is conceived of as chaotic or anarchical.⁷⁵ A frequently observed limitation of the GHL architecture is the difficulty of repurposing it to address ‘unconscionable health inequalities’, attesting to the drawbacks of fixity and the need to rely on large-scale institutional ‘restructuring’.⁷⁶ Moreover, in GHL much is made of architectural complexity as a consequence of actor proliferation and the ‘multiple ways that norm development can guide health-promoting activities’.⁷⁷ Accordingly, a new funding initiative of the Gates Foundation may influence the content and direction of GHL just as much as a WHA resolution.⁷⁸ The same initiative may carve out a role for the World Bank that overlaps or duplicates functions of the WHO. By this argument, such proliferation can cause problems of overlapping mandates and duplication. As a result, in conceiving a global health architecture, experts orient stakeholder time and resources around challenges whose resolution would create a more coherent, ‘shared vision and architecture for effective self-governance’.⁷⁹ In this regard, a stable architecture is also the aim of GHL.

The architecture metaphor has propelled discussions about the untapped potential of philanthropic and other private stakeholders, and the necessity of innovative governance mechanisms. It also directs attention to the maintenance of such architecture in the face of potential anarchy, as opposed to major restructuring or transformation. Much of this directs attention to the further bolstering of a GHL architecture. As Fidler suggests, it is because ‘existing architecture for global health ranges from weak to non-existent’ that the ‘global political profile of health has increased’.⁸⁰ Although appearing ‘counter-intuitive’, it is this purgatory facilitated by GHL’s emerging status that gives the architecture metaphor such productive power as a framework that demands further work.⁸¹

3.1.2. Global Health Law as ‘system’

Architecture is not the only metaphor at play in expert discussions. Gostin and others deem a ‘global health legal system’ as ‘one necessary means of effective global health governance’.⁸² Like its architectural counterpart, the system of GHL is ‘prescriptive as well as descriptive’ in that it is ‘needed, but still unavailable’.⁸³ Systems talk is rife within international law, which is often divided into a ‘trade system’, ‘environmental system’, and ‘criminal justice system’, owing much to the systems analytic of Niklas Luhmann and Gunther Teubner.⁸⁴ Systems thinking has also reified the idea of governance regimes, through talk of ‘regime-collision’ and interaction.⁸⁵

Moon plots the difference between architectures and systems:

“[G]lobal health institutions or architecture” is a similar concept to “global health system”, in that it refers to rules, norms, and expectations that govern the interaction of global health actors; however, it implies more rigidity, formality and structure than the term “system”, which underscores fluidity, plurality and interconnection that takes place largely in the absence of structure.⁸⁶

From this, it becomes clear that systems are less about intentional design than about logics, such as the protection of health or marketized healthcare, and the ‘constellation of actors and institutions’ that settle around them.⁸⁷ Actors orient themselves based on their affiliation (or resistance) to such a logic. The result is a ‘complex adaptive system’ where the parts exist and change in relation to one another rather than in isolation.⁸⁸ This metaphor applies not only to one global health system but is written up to interactions between the global health system and others (forming a larger ‘integrated system’)⁸⁹ or down to sub-systems within GHL (the virus exchange system under the PIP Framework, or more critically, the description of the 2005 International Health Regulations (IHR) as a ‘global surveillance system’).⁹⁰

Beyond logics, the systems metaphor structures thinking and practice in various ways.⁹¹ First, systems thinking ascribes importance to coherence or rather, ‘[t]he system provides the coherence’.⁹² Gostin and Taylor have suggested that ‘[a]s a consequence of rapid globalisation, the need for a coherent system of global health law and governance has never been greater’.⁹³ If architectures demand maintenance, systems demand coherence, and the work of those engaging with ‘the system’ is to establish future cohesion out of past and present incoherence. This differs to architectural thinking in that institutions alone are not sufficient to establish coherence between them.

Second, and relatedly, because systems hold their parts in relation to one another,⁹⁴ the relationality of system components and interconnectivity are emphasised:

global health actors interact across multiple scales, across time, countries, and sectors, learn from previous interactions and adopt new strategies, making behaviour difficult to predict, and interact in ways that shape each other’s thinking, choices, decisions and actions.⁹⁵

Systematicity is read as less institution-driven and with many ‘butterfly effects’⁹⁶ and yet the system still tilts towards unity or coherence. The interpretive frame of systematicity gets actors to relate to GHL in diverse ways. A common way is that problems are defined as ‘systemic’. Often, the progressive promise of GHL is said to lie in its capacity to adopt a wider view than international health law, making connections and identifying patterns between incidents previously seen as unconnected. For example, the expanded scope of GHL beyond infectious disease control has spurred a focus on building well-functioning healthcare systems as the ‘single most important way to ensure population health’.⁹⁷ To think unsystematically in such contexts is to adopt a stance akin to the skewed priorities of major corporations and foundations who would prefer to address and provide funding against ‘specific diseases’ rather than ‘larger, systemic problems, such as failing health systems, that could influence outcomes from all diseases’.⁹⁸ To think systemically, then, is to give those engaging with the system access to struggles, power dynamics, and knowledge beyond an immediate sphere of activity into other countries and sectors. Part of the success of such thinking since the 2005 IHR has been to shift the locus of engagement from specific diseases ‘upstream’ to the healthcare systems tackling their spread.⁹⁹

Yet systems facilitate insider/outsider dynamics and may be as much resisted as supported.¹⁰⁰ Scholars see the global health system as both an aspiration and as a target and it has traditionally been those adopting critical lenses who identify the global health system in order to problematise it¹⁰¹, as with Nunes’ study of the ‘systematic production of ill-health’.¹⁰² But supporters of the system have also reflexively adopted systems thinking in seeking to do many of the things so-called ‘outsiders’ have called for historically, namely the mobilisation of global solidarity and cross-cutting alliances.¹⁰³ For example, Le Moli critiques the 2005 IHR for continuing to ‘organise the entire system’ of infectious disease control ‘as one of prevention of disease spread’, using this argument not to call for repoliticisation or abandonment but to propose ‘upstream’ and ‘midstream’ measures for tackling zoonotic spillover such as science/policy interfaces and a robust risk infrastructure.¹⁰⁴ Perhaps even more than the architecture metaphor, the systems metaphor has afforded alliances and counter-alliances based on scholars’ commitment or resistance to the system rather than on their work on institutions. Under GHL’s unsettled status as an emerging field, the systems frame becomes another way to confront questions of global health, particularly health inequities either as insider or outsider.

3.1.3. Global Health Law as ‘network’

A final metaphor deployed by GHL experts is the network. Gostin and Sridhar note that while GHL is not yet an ‘organised legal system, with a unifying treaty body’, it does constitute a ‘network of treaties and so-called “soft” law instruments’.¹⁰⁵ Similarly, Burci notices ‘a shift towards networked models of governance’ within the would-be field.¹⁰⁶ Having assessed the architecture and system metaphors for their descriptive and normative value, Moon concludes that GHL ‘can best be characterised as a network’.¹⁰⁷ For her and many others, a network is a ‘loose’, ‘flat’, and flexible set of arrangements with ‘nodes’ spanning multiple scales.¹⁰⁸ Networks are said to combine ‘different logics of action’ as they mediate between systems, organisations and regimes.¹⁰⁹ Networks do not have an underlying logic but comprise ‘nodes’ of actors and fora which ‘negotiate the rules that will regulate their relations’.¹¹⁰ Being less hierarchical and state-centric, the GHL network accounts for a host of new actors and ‘nodes’ including ‘funding relationships, expert communities and formal and informal governance arrangements’.¹¹¹ Together they form ‘multi-stakeholder partnerships’ rather than more formalised structures or common visions.¹¹²

One such mechanism, the Global Outbreak Alert and Response Network (GOARN), captures this model of networked governance in GHL.¹¹³ The GOARN is a ‘technical collaboration’ between over 250 institutions ranging from UNICEF to the US Centres of Disease Control to medical schools.¹¹⁴ GOARN’s primary aim is to ‘pool human and technical resources for the rapid identification, confirmation and response to disease outbreaks of international importance’ through training, deployment and information-sharing. Such networks are platforms which emphasise collaboration as a key modality for engagement.¹¹⁵ Similar arrangements operate in relation to IHR surveillance and reporting through the Global Influenza Surveillance Network (GISN).¹¹⁶

The network metaphor, such as that offered by GOARN, construes the field in at least two ways. First, as a space of platforms and scales (rather than structures or logics), the network metaphor supposes fewer barriers to entry than those of architecture or system. This foregrounds the ‘nodes’ or stakeholders operating on such platforms (rather than within or outside them, as in systems) and their efforts to ‘mutually reconstruct, influence, limit, control, and provoke one another’ without the obstacles of institutional access or lack of insider knowledge.¹¹⁷ Second, the network metaphor fashions stakeholders as networkers labouring as ‘flexible problem-solver[s]’ around certain issues who act with only partial data and without an eye on the big picture.¹¹⁸ The networker may bring their own logic with them, but may never seek ‘one final collective decision on substantive norms’.¹¹⁹ For these reasons, civil society and advocacy groups may seek to engage more with GHL as a network than as a system or architecture, seeking collaboration on cross-cutting issues, rather than attempting to establish a common vision across a system or engage in institution-building as part of an architecture.

Taken together, these three frames or metaphors display an eclectic expertise within GHL. As three metaphors of governance seeking to grapple with globalisation they have many similarities, notably in accounting for new actors and stakeholders. Yet taken separately, they each construe very different forms, problems, and modes of global engagement with matters of human health. They may be more concerned with form (architecture), logic (system), or the spirit in which interaction takes place (network), and they propose quite different modes of engagement, whether in seeking institutional reform, coherence of vision, or nodal collaboration. Whether a government policy-maker or health activist embodies the role of architect, systematiser or networker will have important distributional consequences for where financing, personnel, and energy are allocated. Struggles may take place on a discursive, ideological, or institutional basis. Yet none of these metaphors exclude the other outright, a consequence of the open-endedness sought by GHL experts. This open-endedness also brings forth new understandings of the WHO.

3.2. One, two, many WHOs

In constructing the emerging field of GHL, scholars perform a break with ‘WHO law’ as the sole sphere of legal activity in matters of health.¹²⁰ This break with WHO law offers a second set of interpretive frames that GHL experts sought to pose for the organisation. Recognising that WHO was ‘no longer the only game in town’ after the 1990s, experts began to reimagine its place and mandate in a post-Westphalian world.¹²¹ This section plots some of the depictions of WHO that have emerged from expert field-work, namely the idea of WHO as coordinator, leader, and risk manager.¹²² Similar to debates around GHL’s metaphors, these depictions are hugely consequential for the role WHO plots out for itself, prioritising some functions and actors over others. Here again, it is GHL’s emerging quality that facilitates these simultaneous depictions.

Like new GHL metaphors, depictions of WHO are plural and overlapping. Brown and others already note how WHO ‘began to refashion itself as the coordinator, strategic planner, and leader of global health initiatives’ by the 1990s.¹²³ Despite such plurality, though, the roles of coordinator, leader, and risk manager envisioned for WHO arrange authority, functions, and actors differently for this previously ‘central authority’ of global health.¹²⁴ All three depictions emerge from an anxiety around the threat of obsolescence arising from a globalised world. They therefore operate on the assumption that if WHO is to remain relevant or avoid capture by donor priorities, it must forge a new path.

3.2.1. WHO as coordinator

Gostin identifies institutions as the primary vehicles for achieving the mission of global health law and governance, with WHO bearing central ‘directing and coordinating authority on international health work’ under article 2(a) of its Constitution.¹²⁵ This is hardly surprising given WHO’s history: the first international body to be dubbed a ‘world’ organisation and endowed with a broad constitutional mandate for the ‘attainment by all peoples of the highest possible level of health’.¹²⁶ From the outset, WHO was to be chief coordinator of health matters, collaborating with other UN agencies and national health bodies, promoting scientific cooperation and sharing information between states, agencies, and scientific communities. More recently, WHO has interpreted this provision to include the coordination of actors in an increasingly competitive and ‘crowded global health landscape’.¹²⁷ The proliferation of actors appears to demand a renewed role for WHO beyond article 2(a) to coordinate new stakeholders such as philanthropies and pharmaceutical companies.

Depicting WHO as a coordinator emphasises ‘collaboration with multiple entities while coordinating their activities’.¹²⁸ These entities span the ‘transnational and national, state and non-state, public and private’, admitting both to global health’s widening cast of characters while ascribing WHO a crucial mediating role.¹²⁹ Scholars emphasise this role in WHO’s work within GOARN in responding to acute health events, as well as in responding to chemical or radiation incidents alongside ChemiNet and the Radiation Emergency Medical Preparedness and Assistance Network. Coordination is also highlighted in the pandemic detection and response apparatus set up under the 2005 IHR. Thereunder, WHO’s role is depicted as liaising with and overseeing actors such as GOARN, Gavi, domestic health agencies, and vaccine manufacturers even as its own substantive functions are limited to early detection and gathering information. The COVAX Facility, which WHO co-founded, is also held up as an example of its coordination role, particularly WHO’s distribution of vaccines to low- and middle-income countries via its Allocation Algorithm.

Positioning WHO as a coordinator, scholars renew the institution in a crowded global health landscape. The IHR and the modern phenomenon of emerging infectious diseases ‘fundamentally changed the WHO’s approach’,¹³⁰ allowing it to ‘assume[] the function of real-time epidemic intelligence coordinator, gathering data … identifying gaps in existing knowledge … and promoting further research’ rather than controlling responses solely and centrally via its own structures and funding.¹³¹ It also operated as a ‘real-time policy adviser, issuing recommendations and advice’ to governments.¹³² Together, this role catalysed a more ‘confident tone’ as WHO substituted bygone desires of central planning with efforts to mediate and communicate between stakeholders. This has also turned data-gathering into a central rationale for WHO activity—a capacity that would only expand during COVID-19—and ‘empower[ed] individuals and groups in national and global fora’ engaged in technical assistance and scientific research.¹³³ Depicting WHO as coordinator, then, framed actors as information rich or poor and bolstered the effort to expand data streams and data solutions to global health challenges.

3.2.2. WHO as leader

In addition to coordinating, there is much talk of leading in global health. In 2019, the WHO Director-General established the ‘Global Health Leaders Awards’ to be conferred annually. So far, epidemiologists and scientists have featured heavily as recipients. The trend of spotlighting global health leaders, however, is more than an act of recognition for ‘lifetime achievement in public health’.¹³⁴ It positions leaders and ‘global health leadership’ generally as key sites from which to affect global health. GHL experts focusing on leadership foreground particular actors and their unique contribution to the broad mission of global health rather than their data-gathering potential. Often, the success of global health governance is said to hinge on the awareness and buy-in of global health leaders as well as the internalisation of leadership skills and a suitable internal culture within institutions.¹³⁵

In GHL, WHO is charged as a ‘global health leader’ and for Gostin, ‘there is no substitute for the WHO with its comparable normative powers and influence’.¹³⁶ Positioning WHO as a global health leader directs attention in several ways. First, the idea of global health leaders pinpoints only a few notable and influential actors at the apex of a much larger group of less significant actors. To talk of leaders is also to make clear preferences for some actors over others,¹³⁷ with a normative preference towards WHO as leader over similarly influential institutions in health such as the World Bank. Second, because global health leaders are so influential in setting agendas and allocating resources, there is an expectation that they will display the qualities of leadership consistent with their position. The ‘normative power’ of which Gostin speaks thus connects to moral as well as pragmatic leadership.

Third, in the context of global health, discussions of leadership are closely related to ideas of institutional and leadership ‘crisis’. While recognising WHO’s preeminent position in global health, Gostin has also lamented its present-day ‘crisis of leadership’.¹³⁸ Less ambitious and grappling with a world in political-economic flux, WHO ‘is currently in a phase of introspection and reform’.¹³⁹ The discourse around leadership crisis here centres WHO and its historical ups and downs as a strong or weak actor on the global stage. Brown and others hark back to a time when WHO was ‘the unquestioned leader of international health’, compared to today’s ‘organisation in crisis’.¹⁴⁰ Comparisons are posited in this leadership story to exemplify the narrative power of leadership. These concern two consecutive WHO Directors-General, namely Hiroshi Nakajima (DG from 1988 to 1998) and Gro Harlem Brundtland (DG from 1998 to 2003). Nakajima is held up as a weak leader and administrator who failed to act decisively during the AIDS pandemic. As described by Chorev, during the mid-1990s, ‘WHO suffered from a leadership crisis, as Hiroshi Nakajima … was blamed for weak leadership, poor management, and even cronyism and corruption’.¹⁴¹ Brundtland, on the other hand, was credited as having a wider, positive vision of global partnership. In contrast to Nakajima, Brundtland was said to have ‘succeeded in achieving her principal objective [as DG] which was to reposition WHO as a credible and highly visible contributor to the rapidly changing field of global health’.¹⁴²

Centring leadership implies centring the Director-General while also placing them in relation to their predecessors.¹⁴³ It also sets a premium against elections to the position and potential improvements or disappointments in leadership style. Fidler takes up this concern when finding that ‘[t]he change from the stagnant Nakajima regime to the reform-minded Brundtland team has opened new spaces for debate about international law and a host of other important issues concerning WHO’s future’.¹⁴⁴ More recently, discussions of WHO as leader have emphasised the need for strong leadership to reshape the organisation’s (and the field’s) scope. A 2008 WHO report reiterated that ‘WHO is the mandated leader in global health’.¹⁴⁵ It was therefore deemed timely to ‘enhance WHO’s leadership role through the agenda for action on the social determinants of health and global health equity’ and by looking within, at ‘WHO’s internal culture’ and its legal, diplomatic, and economic expertise.¹⁴⁶ Reading WHO as a leader, then, carves out a unique space for the institution as moral visionary, while appropriate expertise and leadership (individual and institutional) become key variables for achieving GHL’s mission.

3.2.3. WHO as risk manager

A final expert depiction of WHO relates to its emerging risk apparatus.¹⁴⁷ While other governance regimes have had their own turns to risk, in global health much of the rationale for this turn is linked to growing concerns over global health security. This security discourse developed out of largely US interventions related to the growing threat of emerging infectious diseases in the early 1990s combined with the new phenomenon of bioterrorism in the wake of 9/11. Institutions, practitioners, and scholars began to speak of global health threats as problems to be discussed and eliminated. The language of global health risks is prominent in the IHR, which WHO describes as a ‘regulatory framework for the timely and effective management of international public health risks’.¹⁴⁸ Scholars also increasingly point to the interim guidance on pandemic preparedness published by WHO in 2013 and subsequent risk management frameworks, which reframes the organisation’s constitutional mandate as ‘a mandate for global pandemic influenza risk management, which is reflected at all levels of the organisation’.¹⁴⁹

GHL experts have taken these thematic aspects to portray WHO as a risk manager with the task of managing various risks—health, ecological, institutional, reputational—relating to WHO and global health. Highlighting the exceptional and urgent nature of its role comes to WHO’s advantage as it competes for power and influence with other leaner and well-resourced mechanisms. Burci has noted that since the creation of an Independent Oversight and Advisory Committee in July 2016, WHO has ‘become an operational “emergency manager”’.¹⁵⁰ This characterisation has ‘reposition[ed] WHO as a UN specialised agency with operational functions for managing health emergencies while maintaining normative functions’.¹⁵¹ Foregrounding risk affords descriptive power to WHO as agile identifier and balancer of risks in a fast-paced environment. Already in the early 2000s, Director-General Brundtland was deemed a ‘calculated risk taker’, revealing the extent to which risks were ‘no longer seen as limiting conditions on the institutional project, but as co-constitutive elements and constructive tools, including new sets of heuristics aimed at governing with and through contingency and unknowability’.¹⁵² In this expert image, the WHO as risk manager admits to the partiality of its knowledge and its weak grip on risk factors, yet puts its machinery to work in gathering data to make reasonable judgments on the scale and priority of global health risks.

These three depictions of WHO grew out of GHL scholars’ sense that the centralised authority previously embodied by the organisation was no longer an appropriate way to think about its work. At the same time, GHL was emerging out of international health law even if its future direction remained unclear. This was less immobilising for WHO than emancipatory, ‘embrac[ing] the unknown for productive purposes’ instead of seeking a nostalgic return to stable foundations.¹⁵³ Rather than GHL’s ‘transitional and disorganised state’ posing an obstacle to the field’s authority and development, the unsettled parameters of the field permitted a range of WHOs with different emphases on its functions and priorities. This has significant repercussions for the future WHO, where the focus of GHL may lie in maximising WHO’s role in data collection, locating high-quality leaders, or extending the WHO’s role in a wider risk infrastructure. The field may eventually encapsulate aspects of all three, as seen in DG Brundtland’s reputation for cooperating with other health actors on the health risks of tobacco,¹⁵⁴ but the emphasis and priority assigned within each expert depiction of WHO will deeply impact the flow of knowledge, funds, and personnel.

3.3. Working normativity

While emerging fields exhibit unsettled interpretive frames (in their metaphors and institutional depictions), they also demonstrate unsettled purposes and stakes. It was deemed a principal failing of international health law that it lacked any underlying normative basis. As Ruger stated in 2008, ‘international health diplomacy, over its 150-year history, has taken place without the necessary philosophical underpinnings for a moral foundation’.¹⁵⁵ This lack of foundations ‘left the field without a basis for justice or common ground on the ethics and governance of threats to global health’.¹⁵⁶ By contrast, and as Ruger’s intervention suggests, the emerging field of GHL had the potential to usher in ‘a new normative reality’ as ‘a means to realise a more just world’.¹⁵⁷ This normative reality builds on WHO’s founding aims while couching many of the field’s most pressing issues in terms of the right to health, a move which has also brought discussions on the field’s values to the fore. In keeping with the field-work dynamics described so far, no single normative foundation or value-set has been affirmed over another. Rather, GHL scholars have eschewed solid foundations in favour of open-ended deliberation over differing philosophies.

The debate on normativity vies between more collectivist or egalitarian foundations relating to social justice on one hand, and more individualist foundations rooted in ideas of human flourishing on the other. For Gostin and Taylor, ‘the moral foundation of global health law is justice’, specifically ‘social justice’ which assumes that ‘conditions for healthy populations should be distributed fairly across social, racial, gender, economic and geographical boundaries in all countries and regions’.¹⁵⁸ Enacting this more collective approach, Gostin ends one important GHL text by ‘imagining global health with justice’, where he outlines a vision that ‘demands that society embed fairness into the environment in which people live and equitably allocate services, with particular attention to the needs of the most disadvantaged’.¹⁵⁹ This attention is also directed during the book’s opening pages, which recount the ‘forgotten voices of young people from around the world as they seek out socially just and healthy lives’.

A focus on social justice, for Gostin, translates to certain imperatives guided by the values of stewardship and accountability. Global health with justice entails ‘setting clear but bold targets, monitoring progress, and ensuring accountability for results’.¹⁶⁰ With this technocratic focus, Gostin seeks to instil social justice as a move ‘toward a New Deal in global governance for health’, harkening back to the socially-driven initiatives of the welfare state and a concern for the underlying determinants of ill-health.¹⁶¹ The proposed Framework Convention on Global Health, of which Gostin is a central advocate, also embodies these normative bases. The draft Convention combines both a concern for the social conditions of physical and mental health through the language of the right to health with the ‘raison d’etre’ of accountability for rights violations.¹⁶² This basis of global health justice thereby seeks to fuse a concern for ‘the social’ with rights-based accountability concerns in a progressive vein.

The other end of the spectrum establishes the moral value of human flourishing ‘as the end goal of a global society’.¹⁶³ This value is influenced by Aristotelian ethics as well as Amartya Sen and Martha Nussbaum’s concept of human flourishing which ‘takes the individual as the central moral unit of justice’.¹⁶⁴ Toebes takes a similar approach, affording central importance to ‘the human dignity of individuals’ as a means of balancing health needs against the competing interests of trade, economic growth and warfare.¹⁶⁵ Toebes argues that ‘for [global] health law, it would be important to focus on the individual’s capacity to function adequately in society and to pursue one’s life plans’ and she relies upon the human rights corpus of treaties and general comments to ground this approach.¹⁶⁶ This alternative starting point focuses less on accountability for human rights violations, a stance that brings a very different political valence to GHL compared with the more egalitarian foundations advocated by Gostin. It may also foreground programmes and funding initiatives aimed at direct, isolated intervention on specific diseases as compared to the more systematic approach to determinants of health and the accountability of state and corporate actors in exacerbating ill-health. Both value-sets remain in play within this emerging field.

3.4. Positioning GHL vis-à-vis other regimes

A final break GHL experts make with international health law concerns the emerging field’s relationship to other lenses for addressing human health, including trade law, environmental law, and human rights. Here, experts do not construct GHL in isolation but in relation to other governance regimes which, as Lang points out, are also the result of expert interpretation.¹⁶⁷ These interpretations are made as much by those outside such fields as by those within, making GHL scholars important actors in the shaping of fields such as trade, environmental, and human rights law, when seeking to define the scope of GHL. Such extra-regime field-work entails setting up other fields in relation to one’s own as part of an effort to distinguish from and connect to other themes, actors and frameworks. In theorising their field, GHL scholars have taken advantage of its ambivalent status to position GHL differently to extant governance regimes, albeit with much greater unity among experts than in other aspects discussed above. GHL is construed by its experts as transcending regime interaction because of its status as a normative agenda that straddles and provides a backdrop to all regimes. To understand how this was achieved, I return to the limitations of international health law as a field of public international law and how GHL’s ambivalent status has been performed to avoid such weaknesses.

3.4.1. Weakness in the age of fragmentation

As seen in the foregoing, international health lawyers interpreted their own regime very differently to how GHL experts interpret theirs. This applied equally in how they interpreted other regimes. Situated in the debates on fragmentation during the 1990s, international health law lay claim to its own status as a field of public international law alongside many others. It also reaped the rewards and the costs of such a label. It qualified as a branch of international law but could also be judged on similar grounds. Were its norms as extensive and enforceable as those of WTO law? How far-reaching were its institutions compared to international criminal law? Judged against such criteria, experts admitted, international health law was a weak regime. As Bélanger acknowledged in 1989, ‘a narrow definition’ of law ‘focusing solely on international provisions dealing directly and exclusively with health protection’ ‘would disregard whole aspects of international health protection’.¹⁶⁸

For Bélanger and others to eschew comparison with other regimes was to commence the move to GHL. As Lucker-Babel put it in the same symposium, ‘classifying international health law under public international law provides only a partial indication of its formal nature’.¹⁶⁹ There was much more to the field than what public international law could appreciate in its conventional definitions of law and legal subjects. This concern continued to animate scholarly discussion well into the 2000s. While recognising that ‘international health law is increasingly understood to be a central component of other international legal regimes’, Barrett admitted that ‘little scholarly consideration has been paid to the important question of how twenty-first century global health law-making should be managed from an international institutional basis’.¹⁷⁰ The old language could neither capture nor seize the potential of a changing field.

The fear of fragmentation only heightened these concerns. The potential for various ‘turf wars’ between international health law and trade or humanitarian law exposed the former’s marginal status.¹⁷¹ The expanded scope of the new IHR to emerging diseases captured the tension with other regimes. Under the 1951 IHR, any diseases falling outside its narrow list, including emerging and non-communicable diseases, ‘were handled, generally, as matters of international trade law’.¹⁷² But the revised IHR of 2005 expanded to cover emerging diseases, a move that created new tensions with the World Trade Organization (WTO). The tension lay principally in the relationship between the revised IHR and the WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement). As Fidler recounts,

[a] major theme of WHO’s work on this relationship was the extent to which the intended purpose of the revised IHR – maximum security against the international spread of disease with minimum interference with world trade and travel – was compatible [with] the approach taken in the SPS Agreement, namely trade-restricting health measures [being] justified if they are based on scientific principles and risk assessment.¹⁷³

This is only one example of the ‘postmodern anxieties’ wrought by the proliferation and specialisation of international law in that, as international health law expanded, it began to rub up against the mandates of other, more established, regimes.¹⁷⁴

3.4.2. Strength in coming to terms with fragmentation

Despite these anxieties, by 2015, one leading GHL scholar could confidently state that a ‘need to work within a fragmented normative landscape is an inescapable necessity for global health scholarship and practitioners’.¹⁷⁵ How to explain this change of tone? The relative status of trade law or IP law vis-à-vis global health had not dramatically shifted in the intervening years. Rather, this more relaxed approach demonstrated a scholarly reappraisal of the terms for assessing global health away from the anxiety-inducing classifications of public international law and towards a governance-oriented language of normative agendas that marked a coming to terms with fragmentation.

Crucially, the systems analytic of Teubner and others had shifted the conceptual horizons of GHL experts. Teubner’s systems thinking marked a turning point in the fragmentation debate. The authors pointed towards not only a ‘functional differentiation’ of global law but also the deep-seated social conflicts that conditioned them and the ‘inter-regime conflicts’ that emerged therefrom.¹⁷⁶ Yet from a diagnosis that rendered fragmentation even more intractable came not despair but acceptance. As Fischer-Lescano and Teubner state: ‘[a]ny aspiration to the organisational and doctrinal unity of law is surely a chimera’ since ‘there is no authority in sight in a position to undertake the coordination of societal fragments’.¹⁷⁷ The solution was neither to reassert hierarchy nor admit defeat. Rather, for the authors,

the only realistic option is to develop heterarchical forms of law that limit themselves to creating loose relationships between the fragments of law. This might be achieved through a selective process of networking that normatively strengthens already existing factual networks between the legal regimes.¹⁷⁸

This passage could be read in various ways, one of which is to give lawyers anxious about their turf the tools for imagining their concerns away. Indeed, the authors’ invocations of ‘loose relations between the fragments of law’ were soon replicated in GHL scholarship. GHL experts no longer feared the irrelevance of rules and WHO but began to assess GHL as ‘one part of larger, complex global social and political processes’.¹⁷⁹ There emerged an ‘awareness of the complex interplay between public health and international legal regimes on topics such as trade, investment, human rights, and international security’.¹⁸⁰ While some continued to read the relationship between global health and trade as an ‘inherent tension’, others saw them as ‘complementary and mutually supportive’.¹⁸¹ Ruger described this as a move ‘from “tension” to “synergy”’.¹⁸²

The idea of human health itself was also used to promote this new position of GHL vis-à-vis other regimes. Scholars jointly reinterpreted fragmentation to show how protecting human health in fact transcended all regimes and, by implication, the tensions between GHL and other governance lenses. This argument proved a powerful trump for global health thinking as it began to engage with other regimes. Regarding international humanitarian law (IHL), for example, Toebes drew GHL’s boundaries by stating that ‘the protection of human health has been at the core of IHL since its inception’.¹⁸³ This required a repurposing of the civilian protection regime as not only about life and death but also about health, thereby bringing GHL to the centre of IHL debates on wartime protection. Regimes were repositioned in relation to GHL rather than the reverse, where international health law had sought to define itself in relation to more robust global frameworks. This technique of transcendence attempted to place GHL outside the turf wars of regime interaction to describe them as ‘regimes that affect health’.¹⁸⁴ This was an argumentative coup for what remained a questionable field. Yet it has been the success of GHL not to have yet been bound by the normative, conceptual, or institutional constraints exhibited by other regimes.

4. Conclusion

At the turn of the millennium, Maria Aristodemou posited that

[t]he narrative of law cannot afford to admit to its own constructedness or arbitrariness: it cannot afford to confess that it is only one amongst many narratives created to impose order on chaos. For the legal narrative to attract both moral and political power, no allowance can be made for its human origins, or for the possibility of mistakes.¹⁸⁵

In several ways, this study of global health law as a site of expert field-work has challenged this authoritarian style of legal expertise, where ‘emerging field’ denotes only one example of the ways in which the style of legal argument may be changing among lawyers and scholars. In construing an area of professional action as an ‘emerging field’, experts are often the first to recognise the inchoate and contested status of its interpretive frames, purposes, and stakes. As the final section has shown, it was international health lawyers and those who remain loyal to its terms today, who seemed most trenchant in their assertion of its status as a field. This is not the case for GHL, where the idea of emergence permits open discussion and simultaneous (yet divergent) framings among scholars and practitioners.

Moreover, by positing GHL’s emergence rather than its establishment, GHL scholars do not forego ‘moral and political power’. In other words, the questionable status of the GHL ‘field’ is no longer a source of concern and delegitimation, but of renewed authority and, indeed, possibility. There are many things that GHL has achieved that its predecessor could not, despite (or now, because of), a certain ‘embedded ambivalence’.¹⁸⁶ These include an experimental and plural approach towards new metaphors of GHL as well as varying depictions of WHO’s role in global affairs after the loss of its central authority. These achievements also extend to debates over the appropriate normative underpinnings of the would-be field: regardless of which moral core it will ascribe to (social justice or human flourishing), it will at least raise the question, unlike its predecessor. And ‘emerging field’ has been GHL’s strength vis-à-vis extant governance regimes in coming to terms with fragmentation and positioning the protection of human health above all other areas. It is precisely by cultivating GHL as an emerging field that scholars have been able to assert this more sophisticated sensibility, gathering support to crystallise its frameworks and avoiding the critiques levelled against its predecessor field.

As discussed throughout, this raises wider questions about contemporary engagements with legal expertise. Such expertise has traditionally been seen as premised on the ideational force of the omniscient expert whose representations succeed when they are made persuasive to others as Truth.¹⁸⁷ Yet GHL experts exhibit an expertise that is markedly different: not hubristic but hedging; not imposing a correct solution but presenting multiple realities and idioms; not persuasion as the goal but speculation and imagining new futures. The more one studies the work ‘emerging field’ does, the more it becomes clear that it is less a vehicle for ‘smuggling in … different substantive visions … but rather the avoidance of such choices’.¹⁸⁸ It is this bracketing of GHL’s fieldness and its productive potential that demands further exploration. The plural sensibility of GHL and other forms of expertise today have ramifications for how global health and other challenges will be understood, prioritised and funded, so it is by investigating emerging fields and their techniques of professional field-work that global health law and the mechanics of expert work can be better understood, and better questions asked about them.¹⁸⁹

Acknowledgments

The author would like to thank Matthew Canfield, Anmol Gulecha, Andrew Lang and Phillip Paiement, as well as the two anonymous reviewers for sharpening my thinking and much of the points in earlier versions. I am also grateful to Ginevra Le Moli for conversations on the topic, and to Augusto Bravo for feedback on this version. Any errors are my own.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Funding

This work was supported by a Dutch government Starter Grant and by a grant from the Nederlandse Organisatie voor Wetenschappelijk Onderzoek, grant no. VI.Veni.221R.013.

Notes

1 Lawrence Gostin and Allyn Taylor, ‘Global Health Law: A Definition and Grand Challenges (2008) 1 Public Health Ethics 53, 55, ‘encompass[ing] the legal norms, processes, and institutions needed to create the conditions for people throughout the world to attain the highest possible level of physical and mental health’.

2 Tine Hanrieder, ‘How Do Professions Globalize? Lessons from the Global South in US Medical Education’ (2019) 13 International Political Sociology 296–314.

3 Lawrence Gostin and Devi Sridhar, ‘Global Health and the Law’ (2014) 370 New England Journal of Medicine 1732, 1733.

4 Martti Koskenniemi, ‘Constitutionalism as Mindset: Reflections on Kantian Themes About International Law and Globalisation’ (2007) 8 Theoretical Inquiries in Law 9, 14.

5 Fidler traces this discursive move in David Fidler, ‘From International Sanitary Conventions to Global Health Security: The New International Health Regulations’ (2005) 4 Chinese Journal of International Law 325.

6 Sheila Jasanoff, ‘Ordering Knowledge, Ordering Society’ in Sheila Jasanoff (ed), States of Knowledge: The Co-Production of Science and Social Order (Routledge, 2004) 13–45, 17.

7 Michel Bélanger, ‘The Future of International Health Legislation’ (1989) 40 International Digest of Health Legislation 1, 6.

8 VS Mihajlov, ‘International Health Law: Current Status and Future Prospects’ (1989) 40 International Digest of Health Legislation 9, 10. C.f. Marie-Francoise Lucker-Babel, ‘A New Challenge for International Cooperation in Health Matters’ (1989) 40 International Digest of Health Legislation 27.

9 Scott Barrett and others, ‘Shifting Norms in International Health Law’ (2004) 98 ASIL Proceedings 13, 22 (emphasis added).

10 Theodore M Brown, Marcos Cueto and Elizabeth Fee, ‘The World Health Organization and the Transition from “International” to “Global” Public Health’ (2006) 96 American Journal of Public Health 62, 63.

11 Gostin and Sridhar (n 3) 1733; Michael Baker and Andrew Forsyth, ‘The New International Health Regulations: A Revolutionary Change in Global Health Security’ (2007) 120 New Zealand Medical Journal 1267.

12 Lawrence Gostin, Global Health Law (Harvard University Press, 2014) xii.

13 Brigit Toebes and Meaghan Beyer, ‘The Origins and Scope of Global Health Law’ in Brigit Toebes et al., Global Health Law Disrupted: Covid-19 and the Climate Crisis (Collected Papers KNVIR, No. 148; T.M.C. Asser Press, 2021) 1–30, 5.

14 Suerie Moon, ‘Global Health: A Centralised Network Searching (in Vain) for Hierarchy’ in Michael Barnett, Jon Pevehouse and Kal Raustiala (eds), Global Governance in a World of Change (Cambridge University Press, 2021) 234–64, 248. This liminal state is reflected in global health’s description as ‘evolving and consolidating as a professional field’, Hanrieder (n 2) 299.

15 Allyn Taylor, ‘Global Health Law’ in Illona Kickbusch and others (eds), Global Health Diplomacy: Concepts, Issues, Actors, Instruments, Fora and Cases (Springer, 2013) 37–54, 37. On the idea of ambivalence, see Zinaida Miller, ‘Embedded Ambivalence: Ungoverning Global Justice’ (2020) 11 Transnational Legal Theory 353.

16 Toebes and Beyer (n 13) 9.

17 Brigit Toebes, ‘International Health Law: An Emerging Field of Public International Law (2015) 55 Indian Journal of International Law 299, 300.

18 See Gross’ periodisation of GHL scholarship in Aeyal Gross, ‘The Past, Present and Future of Global Health Law Beyond Crisis’ (2021) 115 American Journal of International Law 754, 756.

19 Similarly, Wiley discusses ‘the relevance of global climate change to the projects of the emerging field of global health law’, Lindsay Wiley, ‘Moving Global Health Law Upstream: A Critical Appraisal of Global Health Law as a Tool for Health Adaptation to Climate Change’ (2010) 22 Georgetown International Environmental Law Review 439.

20 Lawrence Gostin and Benjamin Mason Meier, ‘Introducing Global Health Law’ (2020) 47 Journal of Law, Medicine & Ethics 788–93, 789–92.

21 Gian Luca Burci, ‘Global Health’ in Jan Klabbers (ed), The Cambridge Companion to International Organisations Law (Cambridge University Press, 2022) 265–93, 265 & 270.

22 Brigit Toebes, ‘Global Health Law: Defining the Field’ in Gian Luca Burci and Brigit Toebes (eds), Research Handbook on Global Health Law (Edward Elgar, 2018) 2–23, 3.

23 Burci and Toebes, Preface, in Burci and Toebes, ibid, xiii.

24 Other areas of international law exhibit a similar ambivalence around their field status, see Cinnamon P Carlarne, Kevin Gray and Richard Tarasofsky, ‘International Climate Change Law: Mapping the Field’ in Carlane, Gray and Tarasofsky (eds), Oxford Handbook of International Climate Change Law (Oxford University Press, 2016) where the authors note that ‘[t]he field of international climate change law emerged and evolved rapidly’ but with ‘uncertainty about the future legal regime’ (4–5).

25 Gian Luca Burci, ‘Global Health Law. By Lawrence O Gostin’ (2015) 109 American Journal of International Law 691–97, 696.

26 Suerie Moon, ‘Global Health Law and Governance: Concepts, Tools, Actors and Power’ in Gian Luca Burci and Brigit Toebes (eds), Research Handbook on Global Health Law (Routledge 2018) 24–54, 36.

27 Kabir Sheikh et al., ‘Boundary-Spanning: Reflections on the Practices and Principles of Global Health’ (2016) 1 British Medical Journal Global Health 1–5, 1.

28 Evidently, this is not how the term field work as an empirical or ethnographic method of research is conventionally used, and the paper does not seek to comment on this more established concept, but to expand the lens of what counts as interpretive work among scholars.

29 JL Austin, How to do Things with Words (Oxford University Press 1962).

30 This term draws on the malleability and use qualities observed elsewhere, e.g., ‘global-ness’ and ‘civilianness’, Deval Desai and Andrew Lang, ‘Introduction: Global Un-Governance’ (2020) 11 Transnational Legal Theory 219, 220; Rebecca Sutton, ‘Enacting the “Civilian Plus”: International Humanitarian Actors and the Conceptualisation of Distinction’ (2020) 33 Leiden Journal of International Law 429.

31 Herein, Johns relates style neither to an historically-determined sensibility nor aesthetics, relying on Foucault’s understanding of ‘governmental rationalities’. Style proves useful in understanding the ways in which global health law is advanced as an emerging field, not only with what texts and ideas, but through what emphases and connections made between them outside of questions relating to ‘origin or causation’, Fleur Johns, ‘From Planning to Prototypes: New Ways of Seeing Like a State’ (2019) 82 Modern Law Review 833, 837–41. See also the Special Issue: New Ways of Seeing Like a State – Change, Critique and Complicity in Global Governance (2022) 33 Law & Critique 237.

32 This image was already challenged in Roberto Unger, The Critical Legal Studies Movement (Harvard University Press, 1986) 119: ‘When we came, they were like a priesthood that had lost their faith and kept their jobs. They stood in tedious embarrassment before cold altars’. Now it has moved into a post-critical style, in which the critical language and moves of uncovering, problematizing, reimagining structures, meanings and contradictions are being revisited, see Johns, ibid, 834; Fleur Johns, ‘Digital Humanitarian Mapping and the Limits of Imagination in International Law’ (2023) Law & Critique (online).

33 Andrew Lang, ‘International Lawyers and the Study of Expertise: Representationalism and Performativity’ in Mosche Hirsch and Andrew Lang (eds), Research Handbook on the Sociology of International Law (Edward Elgar, 2018) 122–50, 137–8.

34 Pierre Bourdieu, ‘The Force of Law: Toward a Sociology of the Juridical Field’ (1987) 38 Hastings Law Journal 805. There is now an extensive Bourdieu-inspired literature among international and transnational law scholars beginning with Yves Dezalay and Bryant Garth, Dealing in Virtue: International Commercial Arbitration and the Construction of A Transnational Legal Order (University of Chicago Press, 1988). See Mikkel Madsen and Yves Dezalay, ‘The Power of the Legal Field: Bourdieu and the Law’ in Reza Banakar and Max Travers (eds), An Introduction to Law and Social Theory (Hart Publishing, 2002) 189; Mikael Rask Madsen, ‘Reflexive Sociology of International Law: Pierre Bourdieu and the Globalisation of Law’ in Hirsch and Lang (n 33) 189–207.

35 Bourdieu, ibid, 806; Emanuel Adler and Vicent Pouliot, ‘International Practices: Introduction and Framework’ (2011) 3 International Theory 1, 4.

36 Neil Fligstein and Doug McAdam, A Theory of Fields (Oxford University Press 2012) 26.

37 Pierre Bourdieu, Distinction: A Social Critique of the Judgement of Taste (Richard Nice tr, Harvard University Press, 1984) 17.

38 Fligstein and McAdam (n 36) 12. See section 3.

39 Activist-turned-law scholar based at Georgetown’s O’Neill Institute. Gostin’s fascinating activism began as a ‘psuedopatient’ in the US anti-psychiatry and deinstitutionalisation movements of the 1970s. For a personal account, see Lawrence Gostin, ‘From a Civil Libertarian to a Sanitarian’ (2007) 34 Journal of Law & Society 594.

40 Professor of Health Law in a Global Context and scientific director of the Aletta Jacobs School of Public Health, University of Groningen.

41 Adjunct Professor at Geneva’s Graduate Institute and former WHO legal counsel (2005–2016). Although much of the discussions recounted in this paper are scholarly in nature, this also reveals the outsized role of scholarship as expert articulations at certain stages in the life-cycle of a ‘new’ area. This blurs the boundary of scholarship and practice, with the theoretical articulations of GHL by both scholars and practitioners offering new modes of engagement.

42 Global health law is offered as a credited course in general LLM programs in Syndey, ANU, Melbourne, Edinburgh, Warwick, National Law School (India) and Kent Law School with summer schools offered in Geneva, Stockholm and Groningen.

43 They define an emerging field as ‘a socially constructed arena occupied by two or more groups whose actions are oriented to each other but who have yet to develop a stable order that effectively routinizes field relations’, Fligstein and McAdam (n 36) 86–87.

44 Ibid, 12.

45 Ibid, 88–89.

46 Pierre Bourdieu and Loic Wacquant, An Invitation to Reflexive Sociology (Polity Press, 1992) 104. This idea also surfaces in critical international law scholarship, see David Kennedy’s point that ‘the regime-ness of a regime may be among the things at stake in struggles among people’, affirming the idea of boundary work while contemplating the label attaching to a regime as something struggle-worthy, David Kennedy, A World of Struggle: How Power, Law and Expertise Shape Global Political Economy (Princeton University Press, 2016) 83.

47 Michel Callon, ‘Introduction: The Embeddedness of Economic Markets in Economics’ (1998) 46 The Sociological Review 1; Gil Eyal, ‘Spaces Between Fields’ in Philip Gorski (ed), Bourdieu and Historical Analysis (Duke University Press, 2013) 158–82, 176. For a recent study, see Matthias Kranke, ‘Exclusive Expertise: The Boundary Work of International Organizations’ (2022) 29 Review of International Political Economy 453.

48 Martti Koskenniemi, The Gentle Civilizer of Nations (Cambridge University Press 2001) 2.

49 Pierre Bourdieu and Loic Wacquant, An Invitation to Reflexive Sociology (Polity Press, 1992) 43. For a more explicit application of Bourdieu’s methodology to global health, see Hanrieder (n 2). While the literature on legal expertise has often been concerned with the conflictual interpretations arising out of certain expert groups and their social capital, this paper is concerned with the prior or subsequent question of how the field terminology is used and to what interpretive effects. C.f. Ole Jacob Sending, The Politics of Expertise: Competing for Authority in Global Governance (University of Michigan Press, 2015) 81.

50 Sheila Jasanoff, ‘The Idiom of Co-Production’, in Jasanoff (n 6) 1–13.

51 It is beyond this article’s scope to fully elaborate this co-productive relation, particularly given WHO’s as yet relatively limited uptake of the ‘emerging field’ term in GHL (a fact that may itself reflect a certain weddedness to the older precepts of international health law).

52 Global health law and governance are intertwined similarly to other global governance regimes. It has therefore been beneficial to draw on governance and policy science literatures, as well as the literature on public health that discusses its global dimensions. Although multiple forms of expertise have gone into the making of GHL, this paper’s focus remains on lawyers and legal scholars.

53 Rita Felski, The Limits of Critique (University of Chicago Press, 2015) 157. ‘Affordance’ was coined by psychologist James Gibson and later taken up in science and technology studies, see Samer Faraj and Bijan Azad, ‘The Materiality of Technology: An Affordance Perspective’ in Paul M Leonardi and others (eds), Materiality and Organizing: Social Interaction in a Technological World (Oxford University Press, 2012) 237–58.

54 Johns (n 31) 839. Herein, Johns relates style neither to an historically determined sensibility nor aesthetics, relying on Nietzsche as well as Foucault’s understanding of ‘governmental rationalities’. Style proves useful in understanding the ways in which global health law is advanced as an emerging field, not only with what texts and ideas, but through what emphases and connections made between them outside of questions relating to ‘origin or causation’.

55 Julio Frenk, Octavio Gómez-Dantés and Suerie Moon, ‘From Sovereignty to Solidarity: A Renewed Concept of Global Health for an Era of Complex Interdependence’ (2014) 383 The Lancet 94.

56 Gostin and Taylor (n 1) 55.

57 Gostin (n 12) 60.

58 This has recently received a boon through the One Health Initiative, an ‘integrated, unifying approach that aims to sustainably balance and optimise the health of people, animals and ecosystems’, WHO, ‘One Health’, <www.who.int/health-topics/one-health#tab=tab_1> [last accessed 23 May 2024].

59 Gostin and Taylor (n 1) 55.

60 Burci, ‘Global Health Law: Present and Future’ in Burci and Toebes (n 22) 486–528, 486.

61 Burci (n 25) 691.

62 Toebes (n 17) 300.

63 Desai and Lang (n 30) 220.

64 Gostin (n 12) 129.

65 Gostin and Taylor (n 1) 61.

66 Burci (n 21) 270. c.f. Fidler finds the architecture metaphor ‘inapt for understanding the challenges global health faces’, David Fidler, ‘Architecture Amidst Anarchy: Global Health’s Quest for Governance’ (2007) 1 Global Health Governance 1, 1–3.

67 In Kennedy’s words, ‘the field’s weakness seemed to demand fealty that it might one day be strong’, David Kennedy and Martti Koskenniemi, Of Law and the World: Critical Conversations on Power, History & Political Economy (Harvard University Press, 2023) 4.

68 An early deployment of this metaphor appears in Kal Raustiala, ‘The Architecture of International Cooperation: Transgovernmental Networks and the Future of International Law’ (2002) 43 Virginia Journal of International Law 1.

69 Gostin (n 12) 129.

70 In the 1980s, the World Bank established a Population, Health and Nutrition Department, with its landmark 1993 report Investing in Health embedding ‘selective, cost-efficient approaches to health’ such as grant-model financing, loans and procurement of medical products, ibid, 284.

71 The WHO refers to the IHR framework as a ‘pandemic preparedness architecture’, WHO Hub (2022).

72 Moon (n 14) 234.

73 Fidler (n 66) 3.

74 Toebes (n 22) 11. See further section 3.2.

75 Fidler (n 66); Gostin (n 12) 171.

76 Gostin, ibid, 78 and 129.

77 Ibid, 72.

78 As Stolk and Vos note, architectures, too, ‘can materialise institutional ideals and values, such as justice, as well as functions, such as security’, Sofia Stolk and Renske Vos, ‘Façade’ (2020) 28 New Perspectives 14, 16.

79 Gostin and Taylor (n 1) 61.

80 Fidler (n 66) 3–4.

81 C.f. Kennedy (n 46) 106, where architectures appear as frames within which people work, rather than a quality ascribed and deployed.

82 Gostin (n 12) xi; Gostin and Taylor (n 1) 55.

83 Gostin and Taylor, ibid. As Gross notes, many scholars settled on defining GHL itself as a ‘systematic approach to the normative role of health in international law and an aspiration for those who engage with this field’, Gross (n 18) 757.

84 Kennedy (n 46) 82–83; Gunther Teubner and Andreas Fischer-Lescano, ‘Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law’ (2004) 25 Michigan Journal of International Law 999; Bruno Simma and Dirk Pulkowski, ‘Of Planets and the Universe: Self-Contained Regimes in International Law’ (2006) 17 European Journal of International Law 483, 502–5.

85 Andrew Lang, Legal Regimes and Professional Knowledges: The Internal Politics of Regime Definition’ in Margaret Young (ed), Regime Interaction in International Law (Cambridge University Press, 2012) 113–35, 114.

86 Moon (n 26) 24–54, 28 (emphasis added).

87 Moon (n 14) 234.

88 Some lament that the architecture still lacks systematicity, see Ginevra Le Moli, ‘The Containment Bias of the WHO International Health Regulations’ (2023) 0 British Yearbook of International Law 1.

89 Toebes and Beyer (n 13) 1–30, 14.

90 Lawrence Gostin and Eric Friedman, ‘Towards a Framework Convention on Global Health: A Transformative Agenda for Global Health Justice’ (2013) 13 Yale Journal of Health Policy, Law and Ethics 1, 54; Sara Davies, Securitizing Infectious Diseases’ (2008) 84 International Affairs 295, 296; Lorna Weir, ‘Inventing Global Health Security, 1994–2005’ in Simon Rushton and Jeremy Youde (eds), Routledge Handbook of Global Health Security (Routledge, 2015) 18–31, 19.

91 Kennedy (n 46) 85–86.

92 Ibid, 201.

93 Gostin and Taylor (n 1) 53.

94 Kennedy (n 46) 201.

95 Moon (n 14) 246.

96 Ibid, 252.

97 Gostin and Taylor (n 1) 59.

98 Ibid.

99 Although c.f. Le Moli (n 88), who sees the IHR as entrenching a downstream approach to infectious disease control.

100 Kennedy (n 46) 103.

101 Although the critical literature on GHL is still emerging, critiques of global health security as securitisation are examples of the reliance on systems thinking as a mode of outsider-positioning, see e.g., chapters by McInnes, Weir, Nunes and DeLaet in Rushton and Youde (n 90). This, too, has fashioned responses that pose robust health systems as the answer to global health insecurity, Lawrence Gostin, Global Health Security: A Blueprint for the Future (Harvard University Press, 2021).

102 João Nunes, ‘The Politics of Health Security’ in Rushton and Youde (n 90) 60–70, 68.

103 Moon (n 14) 255; Burci (n 21) 270.

104 Le Moli (n 88) 8 and 35.

105 Gostin and Sridhar (n 3) 1732.

106 Burci (n 21) 269. There is some clear blurring, though, reflecting the overlapping nature of such metaphors, as with Burci’s networked model of global health governance as ‘many autonomous actors interact across multiple scales and across sectors, shape each other’s thinking and adopt innovative strategies to pursue their agendas’.

107 Moon (n 14) 234.

108 Ibid, 244. See also Matthew Canfield, Translating Food Sovereignty: Cultivating Justice in an Age of Transnational Governance (Stanford University Press, 2022) 11; Annelise Riles, The Network Inside Out (University of Michigan Press, 2000).

109 Teubner and Fischer-Lescano (n 84) 1018.

110 Moon (n 14) 235.

111 ibid, 236 and 244.

112 ibid, 246. This is not to say that networks are value-free. As Moon notes, the network ‘reflect[s] and can exacerbate power disparities between constituent actors, belying the surface-level discourse of partnerships or equal standing’, Moon, ibid.

113 Ibid, 247.

114 Gostin (n 12) 109; GOARN, ‘About us’ <https://goarn.who.int/#partners> [last accessed 23 May 2024].

115 Toebes (n 22) 4.

116 Reliefweb, ‘World: Who Global Influenza Surveillance Network (GISN) (as of 30 Apr 2010)’ <https://reliefweb.int/map/world/world-who-global-influenza-surveillance-network-gisn-30-apr-2010> [last accessed 23 May 2024].

117 Teubner and Fischer-Lescano (n 84) 1018.

118 Amy Cohen, ‘Negotiation, Meet New Governance: Interests, Skills, and Selves’ (2008) 33 Law & Social Inquiry 501.

119 Teubner and Fischer-Lescano (n 84) 1018.

120 Gross (n 18) 759.

121 Kelley Lee and Tikki Pang, ‘WHO: Retirement or Reinvention?’ (2014) 128 Public Health 119, 123. There is a sizeable literature lamenting WHO’s waning influence, see Fiona Godlee, ‘WHO in Retreat: Is it Losing its Influence?’ (1994) 309 British Medical Journal 1491; Brown, Cueto and Fee (n 10). This is not to say that WHO had not gone through multiple iterations in the fifty years prior, see Nitsan Chorev, The World Health Organization Between North and South (Cornell University Press 2012). Chorev’s account ends in the early 2000s, though many of WHO’s thematic foci then remain in play today, particularly as regards its engagement with private actors.

122 The discussion omits less common depictions of the WHO as ‘norm entrepreneur’ and as strategic planner, on which see WHO Medium-Term Strategic Plan 2008–2013.

123 Brown, Cueto and Fee (n 10) 62.

124 Burci (n 21) 266. This argument does not rely on ‘Truth’ but rather truth-value or effect. The idea that WHO was, from the 1940s until the early 1980s, the sole, dominant institution of global health, only to be supplanted by the World Bank and others thereafter has been challenged in recent genealogies, see ibid, 281.

125 Gostin (n 12) xii.

126 Art. 1, Constitution of the World Health Organization 14 UNTS 185, signed 22 July 1946, entered into force 7 April 1948 (‘WHO Constitution’).

127 Gostin (n 12) 80.

128 Ibid, 198.

129 Ibid.

130 Adam Kamradt-Scott, Managing Global Health Security: The World Health Organisation and Disease Outbreak Control (Palgrave Macmillan, 2015) 133.

131 Ibid, 134.

132 Ibid.

133 Jennifer Prah Ruger, ‘Normative Foundations of Global Health Law’ (2008) 96 Georgetown Law Journal 423, 429.

134 <www.who.int/news/item/18-05-2023-who-director-general-announces-global-health-leaders-awards>

135 Gostin (n 12) 70.

136 Ibid, 89.

137 The WHO has, according to Gostin and Taylor, a ‘unique directive to provide leadership’, Gostin and Taylor (n 1) 60.

138 Gostin (n 12) 89.

139 Ibid, 87.

140 Brown, Cueto and Fee (n 10) 62.

141 Chorev (n 121) 125, 156–7.

142 Brown, Cueto and Fee (n 10), 70; Chorev (n 121) 162.

143 The literature on directors- and secretaries-general is too vast to cover here. For useful interventions on the leadership role of the UN Secretary-General, see chapters by Adebajo and Kennedy in Simon Chesterman (ed.), Secretary or General? The UN Secretary-General in World Politics (Cambridge University Press, 2007) chapters 8 and 9.

144 David Fidler, ‘International Law and Global Public Health’ (1999) 48 Kansas Law Review 1, 5.

145 WHO Commission on Social Determinants of Health, Closing the Gap in a Generation: Health Equity through Action on the Social Determinants of Health, Final Report, July 2008, p 22.

146 Ibid, 22.

147 See Dimitri van den Meerssche and Geoff Gordon, ‘“A New Normative Architecture” – Risk and Resilience as Routines of Un-Governance’ (2020) 11 Transnational Legal Theory 267.

148 WHO, Pandemic Influenza Risk Management WHO Interim Guidance, WHO/HSE/HEA/HSP/2013.3 (2013), 4.

149 Ibid, 4. See more recently, WHO, Risk Management Approach Framework: Health Emergency and Disaster Risk Management Framework (2019).

150 Gian Luca Burci and Jennifer Hasselgard-Rowe, ‘Through the Rule of Law Looking Glass’ (2021) 18 International Organisations Law Review 307, 311.

151 Ibid.

152 Van den Meerssche and Gordon (n 147) 267. In the World Bank, van den Meerssche describes one legal culture as a ‘flexible, dynamic, outcome-driven approach attuned to the productivities of uncertainty and the governmentality of risk’, Dimitri van den Meerssche, ‘Deformalising International Organisations Law: The Risk Appetite of Anne-Marie Leroy’ (2023) European Journal of International Law.

153 Desai and Lang (n 30) 227.

154 Chorev (n 121) 198.

155 Ruger (n 133) 426.

156 Ibid, 423.

157 Benjamin Mason Meier, ‘Global Health Takes a Normative Turn’ (2011) 1 Global Community Yearbook of International Law & Jurisprudence 69.

158 Gostin and Taylor (n 1) 56.

159 Gostin (n 12) 413.

160 Ibid.

161 Ibid, 435.

162 Gostin and Sridhar (n 3) 1739.

163 Ruger (n 133) 423–7.

164 Ibid, 427.

165 Toebes (n 17) 301.

166 Ibid, 304.

167 See Fligstein and McAdam, 18–19. Lang (n 85) 116.

168 Bélanger (n 7) 6.

169 Lucker-Babel (n 8) 28.

170 Barrett and others (n 9) 23.

171 This relational existence of international health law vis-à-vis other fields chimes with Fligstein and McAdam’s understanding of a field’s complex enmeshing and co-creation concurringly with related fields, Fligstein and McAdam (n 36) 18.

172 Fidler (n 5) 351.

173 Ibid, 352.

174 Martti Koskenniemi and Päivi Leino, ‘Fragmentation of International Law? Postmodern Anxieties’ (2002) 15 Leiden Journal of International Law 553.

175 Burci (n 25) 696.

176 Teubner and Fischer-Lescano (n 84) 1018.

177 Ibid, 1017.

178 Ibid.

179 Moon (n 26) 36.

180 Burci (n 25) 691.

181 Toebes (n 22) 20.

182 Jennifer Prah Ruger, ‘Book Review of “Global Health Law” by Lawrence O. Gostin’ (2014) 9 Asian Journal of WTO and International Health Law and Policy 331, 333.

183 Toebes (n 22) 20.

184 Gostin (n 12) xiv. Ruger made the same move when stating that the global health regime ‘includes all legal regimes relevant to public health’, Ruger (n 133) 423.

185 Maria Aristodemou, Law and Literature: Journeys from Her to Eternity (Oxford University Press, 2000) 140.

186 Miller (n 15) 355.

187 Lang (n 33) 124.

188 Ibid, 143.

189 Ibid, 142.