In association with the International Commission of Jurists

Symposia

09 Apr

[Jeremy Snyder is an Assistant Professor in the Faculty of Health Sciences at Simon Fraser University; Valorie A. Crooks is an Associate Professor in the Department of Geography at Simon Fraser University.] This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below. In his article “Medical Tourism, Access to Health Care, and Global Justice,” Glenn Cohen provides an excellent discussion of the responsibilities of states for responding to and managing the potential negative consequences of medical tourism. Cohen gives an overview of canonical accounts of global justice and their implications for state responsibility, helpfully demonstrating that different accounts of justice will provide different answers to questions of responsibility. In this way, Cohen’s article makes the case for continued research on theories of global justice and their implications for global health practices like medical tourism. Cohen’s article faces a limitation shared by others conducting research on the impacts of medical tourism, a global health practice that, while not new, has expanded greatly in scope and visibility in recent years. Little trustworthy evidence is available about medical tourism patient flows or the impacts of this practice on health equity, health human resources, patient health and safety, and the spread of infectious disease. While descriptors of patient flows are available, they vary greatly and have been criticized for their inaccuracy. These problems are compounded by differing definitions of medical tourism and methods for quantifying its impacts. While we applaud Cohen’s work in advancing understanding of the implications of accounts of global justice for assigning responsibilities to states, this project is confounded by an absence of reliable empirical data. As a result, Cohen and others are frequently relegated to making statements of this sort: ‘If medical tourism is harmful, then x; however, if medical tourism is beneficial, then y.’ Without more data on the impacts of specific forms of medical tourism in particular communities, providing action-guiding, normatively-informed analyses of medical tourism will be challenging. New empirical research into the effects of medical tourism is emerging, which will help to increase the effectiveness of theory-driven research on this issue. It is important that this new work be informed and guided by theory-driven research like Cohen’s. This is because medical tourism is an enormously complex global health practice with myriad different impacts in destination and patients’ home countries that require careful consideration. Numerous stakeholders are involved in this practice, including citizens, government officials, health workers in destination and patients’ home countries, patients themselves and their support networks, medical tourism facilitators, and medical tourism providers and investors. The benefit of well-developed, theory-driven accounts of the moral and legal landscape of medical tourism is that they can help indicate which potential impacts of this practice, for which stakeholders, and in which environments are most pressing to explore empirically. The resources available to provide empirical insights on the ethical and legal dimensions of medical tourism are limited, and without guidance on prioritizing research questions these resources risk being wasted.
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09 Apr

[Nathan Cortez is an Assistant Professor of Law at SMU Dedman School of Law.] This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below. Thanks to the Virginia Journal of International Law for inviting me to comment on Glenn Cohen’s important article “Medical Tourism, Access to Health Care, and Global Justice.” Like the other contributors, medical tourism is a primary research focus of mine. Glenn’s right: the scholarship is undertheorized (p. 9). His article admirably initiates a dialogue between theory and its application. On that criterion, his article is both ambitious and modest - ambitious in testing the grand theories of Global Justice, and modest in confronting just one of the cascading questions that medical tourism raises: What should we do if medical tourism decreases access to care for destination country residents? Glenn evaluates three competing theories: cosmopolitan; statist; and intermediate. He prefers the intermediate theories of Joshua Cohen, Charles Sabel, Norman Daniels, and Thomas Pogge, which avoid the paralyzing moral obligations imposed by cosmopolitan theories but recognize that we probably owe more than what statist theories require. (Indeed, the statist theories limiting our obligations domestically seem quaint given the topic - a sprawling global trade in medicine.) But before engaging these theories, Glenn first addresses the empirical question - Does medical tourism really diminish access to care locally? (pp. 9-14) We just don’t know. Most of us have a strong intuition that the answer is yes. But as Glenn notes, our evidence is anecdotal, uncertain. Indeed, the lack of data is a persistent frustration for scholars in this area. As such, my inclination was to evaluate the Global Justice theories on how well they accommodate this reality. Glenn prefers the intermediate theories in part because the duties they impose are triggered by causation - if medical tourism decreases access to care locally, then certain obligations follow. But that causal observation requires data. The cosmopolitan utilitarianism of Mills and Bentham (pp. 18-19), also requires empirical information in the form of welfare measurements (e.g., “Does medical tourism increase the utility of uninsured Americans more than it decreases the utility of poor patients in India?” and countless other calculations). Likewise, the cosmopolitan sufficientarianism of Amartya Sen and Martha Nussbaum requires us to identify some minimum threshold below which we shouldn’t let local residents fall. But what’s the threshold?
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09 Apr

[Colleen M. Flood is the Canada Research Chair in Health Law and Policy at the University of Toronto Faculty of Law; Y.Y. Brandon Chen is a doctoral candidate at the University of Toronto.] This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below. In this thought-provoking article, Cohen proposes a six-prong framework to assess whether medical tourism diminishes health care access in destination countries. This kind of theoretical contribution is extremely important to frame public debates, and ultimately inform legal and policy responses. In what follows, we outline four challenges to Cohen's framework and argue that equity in the distribution of health resources should be fulsomely considered in any discussion of medical tourism. First, medical tourism engenders concerns about both health access and health equity, particularly when occurring in developing countries; Cohen's framework addresses the former but neglects the latter. For instance, even assuming that health services provided to medical tourists originate from fresh investments that were not previously available, and therefore health access for local patients would have theoretically stayed the same, there remains the question of why patients from well-resourced developed countries – however sympathetic their personal circumstances may be – should be the primary beneficiaries of these resources rather than patients in the developing world. The inequity between foreign and local patients is further accentuated if a substantial amount of these fresh resources is devoted to providing medical tourists with perquisites above and beyond usual standard of care that are unavailable to most destination country residents. We argue that such equity considerations per se render medical tourism problematic. Second, there is an inherent bias in Cohen's framework in that the burden seemingly rests on opponents of medical tourism to establish its adverse effects rather than vice versa. Due to lack of significant statistical evidence to-date confirming medical tourism's threat to health access in destination countries, those with concerns about medical tourism will inevitably fail to satisfy Cohen's test. However, we could arguably start instead with the assumption that medical tourism will likely have adverse equity impacts. In this case, if the evidentiary burden was upon supporters of medical tourism to dispel equity concerns, they too would face difficulties with a sparse evidentiary base.
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09 Apr

[I. Glenn Cohen is an Assistant Professor of Law and the Co-Director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School.] This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below. First, I would like to thank Opinio Juris for hosting this discussion on my recent Article in the Virginia Journal of International Law. Medical tourism--the travel of patients from one (the “home”) country to another (the “destination”) country for medical treatment--represents a growing business. A number of authors have raised the concern that medical tourism reduces access to health care for the destination country's poor and suggested that home country governments or international bodies have obligations to curb medical tourism or mitigate its negative effects when they occur. This Article is the first to comprehensively examine both the question of whether this negative effect on access to health care occurs for the destination country's poor, and the normative question of the home country and international bodies' obligations if it does occur. I begin in Part I by describing and distinguishing medical tourism by individuals purchasing care out of pocket from those whose use is prompted by insurers and governments. I then distinguish concerns about medical tourism's effect on health care access in the destination country--the focus of this Article--from other concerns with medical tourism that I and others have discussed elsewhere In Part II I discuss the empirical claim and show that despite the expressions of concern of several prominent scholars and policymakers, there currently exists little empirical evidence that suggests medical tourism has adverse effects on health care access in destination countries. Nevertheless, both as a grounding for what follows and as an attempt to help formulate an empirical research project, I discuss six possible triggering conditions through which we would expect medical tourism to reduce access for the poor in destination countries: (1) The health care services consumed by medical tourists come from those that would otherwise have been available to the destination country poor; (2) Health care providers are “captured” by the medical tourist patient population, rather than serving some tourist clientele and some of the existing population; (3) The supply of health care professionals, facilities, and technologies in the destination country is inelastic; (4) The positive effects of medical tourism in counteracting the “brain drain” of health care practitioners to foreign countries are outweighed by the negative effects of medical tourism on the availability of health care resources; (5) Medical tourism prompts destination country governments to redirect resources away from basic health care services in a way that outweighs positive health care spillovers; (6) Profits from the medical tourism industry are unlikely to “trickle down.”
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09 Apr

The Virginia Journal of International Law (VJIL) is delighted to be partnering with Opinio Juris this week to host a series of discussions on recent scholarship published by VJIL. This week will feature articles from the first two Issues of Volume 52 of the Journal. The complete Issue 52:1 can be downloaded here. Issue 52:2 can be found here. On Monday, we begin our discussion an Article by I. Glenn Cohen (Harvard Law School) – “Medical Tourism, Access to Health Care, and Global Justice.” Cohen comprehensively examines the question of whether medical tourism reduces access to health care for the destination country’s poor and whether such deprivations trigger international legal obligations. Excellent commentary will be provided by Nathan Cortez (SMU Dedman School of Law), Colleen M. Flood and Y.Y. Brandon Chen (University of Toronto Faculty of Law), and Jeremy Snyder and Valorie A. Crooks (Simon Fraser University). On Tuesday, we continue with Stephan W. Schill’s (Max Planck Institute) Article, “Enhancing International Investment Law’s Legitimacy: Conceptual and Methodological Foundations of a New Public Law Approach.” Schill responds to the challenges international investment law poses for domestic public law values by suggesting that international investment law and investment treaty arbitration should be conceptualized as public law disciplines. He argues that investment treaties should be interpreted, investor-state disputes resolved, and system-internal reform proposed by recourse to public law thinking. Anthea Roberts (Visiting Professor at Harvard Law School and Lecturer in Law, Department of Law, London School of Economics and Political Science) and Jürgen Kurtz (Associate Professor, Melbourne Law School) will respond. On Wednesday, Gregory Shaffer (University of Minnesota School of Law) and Joel Trachtman (Fletcher School – Tufts University) will discuss their Article, “Interpretation and Institutional Choice at the WTO.” Shaffer and Trachtman develop a framework of comparative institutional analysis for assessing the implications of judicial interpretation at the World Trade Organization. Although the framework they develop focuses on the WTO, it also has relevance for understanding the interpretation of international and domestic legal texts from “law and economics” and “law and society” perspectives. Responding to their piece will be Rachel Brewster (Harvard Law School), Robert Howse (New York University School of Law), and Joost Pauwelyn (The Graduate Institute, Geneva).
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29 Mar

In response to the online symposium on LGBT asylum and refugee law held two weeks ago by the NYU Journal of International Law & Politics and Opinio Juris, the Journal received several additional pieces of commentary. The contributions below specifically tie to Professor Ryan Goodman's article, Asylum and the Concealment of Sexual Orientation, which also appears in issue 44:2:
"To counteract some of these concerns, [Hathaway & Pobjoy] place great faith in international human rights and anti-discrimination law pertaining to LGBT rights to constrain decision-makers’ reliance on their own subjectimve understandings of sexuality.  However, it is unclear that international law can bear such a weight in this particular context." Goodman, 44 N.Y.U. J. Int'l. L. & Pol. 407, at 441 (2012):
Thank you again to Opinio Juris for its critical support on this important issue, and also to all of the authors.  Below are four new contributions to the dialogue by:  
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19 Mar

[This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium of late January. It was originally posted on March 9, but we repost it today to avoid confusion with other journal symposia.] I would like to thank Mark Tushnet for his thoughtful reply to my article. As he notes, it is a deeply positive development that we have moved from talking about whether constitutions should include social rights to how they should do so. The debate about means is a particularly difficult theoretical and empirical problem, one that is likely to be one of the central debates in the field of comparative constitutional law for a long time. And the question of the effect of social rights on the poor ought to be perhaps the central question in evaluating these various means. In this light, we ought to consider the question of whether all four of the remedial methods I discuss can be improved upon. There seems to be little debate on the question of whether individual enforcement of social rights and enforcement of these rights via “negative injunction” are useful poverty reduction tools. Neither seems effective as currently constructed, but it is important to think about whether either device could be improved. For example, the individual enforcement model might be creatively engineered to have more of a system-wide effect, perhaps via a liberal use of contempt-like sanctions. Similarly, some of the recent South African jurisprudence may have demonstrated that even the “negative injunction” or status-quo-protecting model can benefit the poor in important ways, if cleverly deployed. The South African courts have refused to evict residents (thus freezing the status quo) in order to push the government to upgrade existing settlements rather than razing them and undertaking wholesale renewal. And in one case, a court refused to allow private property owners to evict impoverished squatters but allowed those private property owners to seek damages against the state – this may be an effective way to incentivize the bureaucracy to solve the problem. The main disagreement between Professor Tushnet and my piece is on the other two types of remedies; in other words, on the question of softer, dialogue-based remedies versus harder, structural injunctions. Professor Tushnet tends to favor the former and I tend to favor the latter. I admit that this is a difficult choice, especially since courts are constrained by various features of their political environments – very hard remedies might well be infeasible in a one-party state like South Africa, for example. And as I note in the paper, structural injunctions are sometimes effective, but have considerable capacity costs on courts and often do not achieve much. So the choice of remedies seems to me to be one between highly imperfect options. Also, I see the issue of hardness or softness in system-wide remedies as basically lying on a continuum – these are differences in degree rather than in kind. That is, as Professor Tushnet points out, both structural injunctions and softer remedies like Grootboom are dialogical in nature, but there are important differences in whether the court or the legislature leads the dialogue.
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16 Mar

[Hari M. Osofsky is Associate Professor and 2011 Lampert Fesler Research Fellow, University of Minnesota Law School and Associate Director of Law, Geography & Environment, Consortium on Law and Values in Health, Environment & the Life Sciences] I am grateful for the opportunity to participate in this exchange over Tai-Heng Cheng’s ambitious and thoughtful new book, When International Law Works. ...

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16 Mar

[Chester Brown is Associate Professor at the Faculty of Law, University of Sydney] Thanks to Professor Cheng for his thoughtful response. As a follow-up comment, this discussion should not conclude without mention of another hard case, being the International Court of Justice’s advisory opinion in Legality of the Threat or Use of Nuclear Weapons. In its advisory opinion of...

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15 Mar

I am grateful to Professor Brown’s careful summary of the thesis of When International Law Works. I should, however, make a few clarifying points about my analysis of some international incidents. Professor Brown, with gentlemanly understatement, notes that “some will have their eyebrows raised” by my analysis. Regarding Loewen v. United States, I confess I am rather ambivalent about the award. ...

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15 Mar

[Chester Brown is Associate Professor at the Faculty of Law, University of Sydney] In international life, decision-makers face difficult problems on a regular basis. What should decision-makers do, for instance, when international rules that “promote minimum world order and universally-desired values” run counter to, or threaten, “basic values or essential interests of communities” that those decision-makers serve (p. 2)? ...

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