Key concepts of the research

Several authors have attempted to define public health and to differentiate this field from other related areas.²⁰ In order to establish the material scope of the thesis, it is first necessary to look at the several concepts of health that have been adopted (A), before defining public health itself (B). Our analysis lastly reveals that public health is increasingly globalised. This evolution implies that actors need to be relevant at the global level in order to preserve their own public health standards (C).

A. Health

While a general definition of health is manageable, reaching a precise, comprehensive and legally certain definition of this concept is challenging. A distinction can be found in international instruments between those that require a higher level of health protection and those that provide lower standards. The World Health Organization (WHO) Constitution provides that ‘health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity’.²¹ This definition includes not only physical but also mental and even social well-being. It contains both a negative and a positive approach to health, as

20 See Charles-Edward A. WINSLOW, ‘The Untilled Fields of Public Health’ (1920) 51 Sciences 23, p. 23; Tamara K. HERVEY and Jean V. MCHALE, Health Law and the European Union (Cambridge, Cambridge University Press, 2004), pp. 19-21; Lawrence O. GOSTIN, ‘A Theory and Definition of Public Health Law’ (2008) 8 O’Neill Institute for National Global Health Law Scholarship Research Paper 1, p. 3; Lawrence O. GOSTIN and Lindsay F. WILEY, Public Health Law: Power, Duty and Restraint (Berkeley/Los Angeles, University of California Press, 3^rd edition, 2016); Tamara K. HERVEY and Jean V. MCHALE, European Union Health Law: Themes and Implications (Cambridge, Cambridge University Press, 2015), pp. 25-28.

21 Preamble, Constitution of the World Health Organization, New York, 22 July 1946, 14 UNTS 185 (WHO Constitution).

5 health requires the absence of disease but also well-being as such.²² This notion embraces a broad meaning of health, which can be problematic. First, defining health in terms of well-being implies having recourse to a philosophical concept that can be hard to define. Second, requiring States to guarantee a ‘complete state of physical, mental and social well-being’ might be too ambitious in some countries.²³ Third, a complete state of well-being might also be over-ambitious for high-income countries, where the increase of chronic diseases implies that some people are definitely ill.²⁴

A narrower definition of health is contained in the International Covenant on Economic, Social and Cultural Rights, which recognises ‘the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’.²⁵ This definition restricts the quality of a healthcare system to the ‘highest attainable standard’, which will vary in accordance with the wealth of a State. The International Covenant on Economic, Social and Cultural Rights also contains an illustrative list of objectives that a State should reach, thus adopting a more limited approach that might be more realistic.²⁶

Another distinction has been made between an ‘engineering model’ and a ‘social model’ of health protection.²⁷ While the former requires ‘the provision of health care to repair the defective human machine’, the latter seeks ‘to control the causes of the initial break down’.²⁸ The difference between both models is whether we include prevention or not, which involves taking into account external factors such as social or environmental concerns.²⁹ For the purposes

22 A third aspect, the egalitarian one, has also been highlighted by Michael BOTHE, ‘Les concepts fondamentaux à la santé: le point de vue juridique’ in René-Jean DUPUY (ed), The Right to Health as a Human Right (Leiden/Boston, Brill Nijhoff Publishers, 1979), pp. 14-34.

23 Sev S. FLUSS, ‘The Development of National Health Legislation in Europe: The Contribution of International Organisations’ (1995) 2(3) European Journal of Health Law 193, p. 208 cited in Tamara K. HERVEY and Jean V.

MCHALE, Health Law and the European Union, op. cit., p. 8.

24 Machteld HUBER, J. André KNOTTERUS, Lawrence GREEN et al., ‘How Should we Define Health?’ (2011) 343 The British Medical Journal 4163.

25 Article 12 (1) International Covenant on Economic, Social and Cultural Rights, New York, 16 December 1966, 993 UNTS 3; Part I, para. 11, European Social Charter (Revised), Strasbourg, 3 May 1996, European Treaty Series No 163: ‘Everyone has the right to benefit from any measures enabling him to enjoy the highest possible standard of health attainable’; Para. I Declaration of Ata, International Conference on Primary Health Care, Alma-Ata, 6-12 September 1978: ‘…health, which is a state of complete physical, mental and social wellbeing, and not merely the absence of disease or infirmity, is a fundamental human right and that the attainment of the highest possible level of health is a most important world-wide social goal…’.

26 Article 12 (2) International Covenant on Economic, Social and Cultural Rights.

27 Jonathan MONTGOMERY, ‘Recognising a Right to Health’ in Ralph BEDDARD and Dilys M. HILL (eds), Economic, Social and Cultural Rights: Progress and Achievement (New York, Palgrave Macmillan, 1992), pp.

186-187.

28 Idem.

29 For instance, MONTGOMERY follows the social model, whereas HERVEY and MCHALE follow the engineering model; see Jonathan MONTGOMERY, ‘Recognising a Right to Health’, op. cit., p. 187; Tamara K. HERVEY and Jean V. MCHALE, European Union Health Law, op. cit., p. 12.

6 of the thesis, the social model will be adopted. This approach is more consistent with the WHO definition. In order to attain well-being, it is not enough to cure people when they have fallen ill; instead, prevention will play a crucial role. Moreover, if health does not only seek physical and mental well-being but also social well-being, then it is necessary to take into account external factors such as poverty, education, or the environment. The social model additionally allows for an interpretation of health that goes beyond the professional-patient relationship to include public health. Since the focus of the work will be in this particular area, it seems logical to adopt a broad definition that considers it as part of the same field. Interestingly, even authors that adopt the engineering model tend to expand the scope of health beyond the purely private relationship.³⁰ Under this broad definition, public health constitutes a sub-category within the field of health. It is characterised by several features that will be defined below.

B. Public health

There is no unanimous definition of public health. One of the first definitions was established in 1920 and considered public health as ‘the science and art of preventing disease, prolonging life and promoting physical and efficiency through organised community efforts for the sanitation of the environment, the control of community infections, the educations of the individual in principles of personal hygiene, the organisation of medical and nursing service for the early diagnosis and preventive treatment of disease, and the development of social machinery which will ensure to every individual in the community a standard of living adequate for the maintenance of health’.³¹ From a legal perspective, public health has been defined as

‘the study of the legal powers and duties of the state to assure the conditions for people to be healthy (to identify, prevent, and ameliorate risks to health in the population) and the limitations on the power of the state to constrain the autonomy, privacy, liberty, proprietary, or other legally protected interests of individuals for the common good’.³² It results from this definition that four elements are essential in order to consider that an action belongs to the public health field.

First, there has to be a State action, since public health activities are a special responsibility of the government. It is for the government to ensure the conditions for the population’s health because it ‘possesses the authority and responsibility to persuade, create incentives, and even

30 Tamara K. HERVEY and Jean V. MCHALE, Health Law and the European Union, op. cit., p. 10.

31 Charles-Edward A. WINSLOW, ‘The Untilled Fields of Public Health’, op. cit., p. 30.

32 Lawrence O. GOSTIN and Lindsay F. WILEY, Public Health Law, op. cit., p. 4.

7 compel individuals and businesses to conform to health and safety standards for the collective good’.³³

Second, the action must seek the prevention of disease and the promotion of physical and mental health. The goal of public health is not repairing the human machine as in the above-mentioned ‘engineering model’ but instead adopting preventive measures before disease occurs. Thus, public health measures include education on hygiene habits, communicable disease law, or the regulation of unhealthy products.

Third, public health actions often involve constraints on the rights of natural and legal persons in the name of collective health protection. The regulation of tobacco products in the European Union illustrates this requirement. In the Philip Morris judgment, the CJEU ruled that EU tobacco-control measures could only be considered invalid if manifestly inappropriate because the negative economic consequences they involved for tobacco manufacturers had to be weighed with the requirement to ensure a high level of human health protection with regard to a product that is carcinogenic.³⁴ A high threshold was therefore established by the Court, which highlights the coercive effect that public health measures can have. The Court admitted that public health measures could limit the rights of economic operators.

Fourth, the action has to address collective or community health, that is, the health of the population as a whole. This represents an important distinction when compared to medical law, where the focus is on the patient as an individual. Public health actions go beyond ensuring access to medical care and, rather, aim at ensuring educational opportunities, a healthy environment or preventing threats to mental and social well-being.³⁵

While the elements characterising public health are well established, this concept has evolved over the years. A review of the different definitions contained in GOSTIN’s Public Health Law book reveals two significant changes.³⁶ First, public health was only related with physical health in the first edition, while it is also concerned with mental health in the two more recent ones.³⁷ Second, the attainment of the population’s health objective has to be consistent

33 Ibid., p. xx.

34 Judgment of the Court of 4 May 2016 in Case C-547/14 Philip Morris, EU:C:2016:325.

35 David P. FIDLER, International Law and Public Health: Materials on and Analysis of Global Health Jurisprudence (New York, Transnational Publishers, 2000), p. 6.

36 Compare Lawrence O. GOSTIN, Public Health Law: Power, Duty, Restraint (Berkeley/Los Angeles, California University Press) first edition 2000, second edition 2008 and third edition 2016.

37 See also Roger DETELS and Chorh ChuanTAN, ‘The Scope and Concerns of Public Health’ in Roger DETELS, Martin GULLIFORD, Quarraisha ABDOOL KARIM and Chorn Chuan TAN (eds), Oxford Textbook of Global Public Health (Oxford, Oxford University Press, 6^th edition, 2015), p. 1.

8 with the values of social justice in the two latest editions, whereas the notion of social justice was not mentioned in the first one. In addition to the changes highlighted in GOSTIN’s work, public health is increasingly concerned with human behaviour. While public health traditionally focused on the control of infectious diseases, the scope of action has now been broadened. The effects that tobacco, alcohol, diet, stress or environmental pollution have on health are now an important aspect of public health action.³⁸ As a result of this evolution, the functions associated to the notion of public health have also expanded. Public health implies preventing disease but also promoting a healthy lifestyle, identifying community health needs, investigating health problems, promoting a healthy environment and planning natural and man-made disasters.³⁹

C. Global health

Having defined the concepts of health and public health, it is lastly necessary to mention the process of globalisation that public health is encountering. An independent notion of ‘global health’ has emerged and actors currently need to be active at the global level in order to preserve their public health standards.

Global health is defined as ‘an area for study, research, and practice that places a priority on improving health and achieving equity in health for all people worldwide’.⁴⁰ From a legal perspective, global health is ‘the study and practice of international law – both hard law (e.g.

treaties that bind States) and soft instruments (e.g., codes of practice negotiated by States) – that shapes norms, processes and institutions to attain the highest possible standards of physical and mental health for the world’s populations’.⁴¹ Global health therefore covers all sub-areas of health.⁴² However, the collective dimension of public health makes the effect of globalisation particularly marked in this area. Global cooperation in public health is not new,⁴³ but the variety of public health concerns being discussed at the global level has expanded and the frequency of public health concerns becoming ‘global’ has increased. International cooperation is thus increasingly required in public health.

38 David P. FIDLER, International Law and Public Health, op. cit., p. 5.

39 Roger DETELS and Chorn Chuan TAN, ‘The Scope and Concerns of Public Health’, op. cit., p. 2.

40 Jeffrey P. KOPLAN, T. Christopher BOND, Michael H. MERSON et al., ‘Towards a Common Definition of Global Health’ (2009) 373(9679) The Lancet 1993, p. 1995; see also a definition in Michael FREEMAN, ‘Global Health:

An Introduction’ in Michael FREEMAN, Sarah HAWKES and Belinda BENNETT (eds), Law and Global Health:

Current Legal Issues Volume 16 (Oxford, Oxford University Press, 2014), p. 1.

41 Lawrence GOSTIN, Global Health Law (Harvard, Harvard University Press, 2014), p. 64.

42 See, for example, on health services, the adoption of the WHO Code of Practice for the International Recruitment of Health Personnel; see World Health Assembly, WHO Code of Practice for the International Recruitment of Health Personnel, 21 May 2010, Resolution WHA.63.16.

43 See infra, Part II, Section I, I, B.

9 Globalisation in the field of public health covers, first, the emergence and re-emergence of infectious diseases.⁴⁴ The spread of COVID-19 is the most recent illustration of the globalisation of public health. China reported the first case of a ‘pneumonia of unknown cause’

on 31 December 2019. The WHO declared a public health emergency of international concern on 30 Janary 2020, and it was already considered too late.⁴⁵ This example highlights that the current level of trade and travel has exponentially increased the globalisation of infectious diseases. The globalised dimension of public health also covers non-communicable diseases.

These affect such a large number of States that a coordinated international action seems more appropriate than a national response. The cases of tobacco control, alcohol consumption or the regulation of nutritional habits and physical activity illustrate this argument. Environmental health is also an area where globalisation has a direct impact. The consequences of climate change on the population’s health reflect the need for a global response in this field.⁴⁶

Having defined the concepts of health, public health and global health that will be used in this work, it is now appropriate to recall how EU public health has evolved. This area has received an increasing attention in the European Union and is now well grounded in the region.

The development of an effective external public health action is therefore essential.