Enforcing Global Health Law in Domestic Legal Systems: A Case Study of the Hong Kong Special Administrative Region
Abstract:
The COVID-19 pandemic has sparked considerable interest in global health law, the scholarship of which, focusing on the global level, typically neglects the careful study of how global health law is enforced in municipal legal systems, without which most global legal and regulatory norms promoting and protecting health remain empty promises, no matter how flawlessly they may have been drafted. This Article contributes to supplying this gap with a detailed case study of global health law as it is enforced in the legal system of the Hong Kong Special Administrative Region, a vibrant common law jurisdiction deeply engaged in global health governance while being part of the People’s Republic of China, one of the world’s most influential, and certainly most populous, countries. Drawing on the International Health Regulations (2005), the Framework Convention on Tobacco Control, the international right to health, and soft law instruments related to global health as examples of implementation, it is revealed that the enforcement of global health law even in Hong Kong, an economically and legally advanced jurisdiction, is uneven, and too often implicit, a phenomenon that reflects global health law’s fragmentation. Global health law, which embodies the collective wisdom and consensus of the international community on health policy, should be taken seriously at the domestic level, although Hong Kong’s public health achievements had been more or less attained prior to its domestication of the above-mentioned global health legal instruments. Notwithstanding the usual consequentialness of case law in a common law system, Hong Kong courts have played a marginal role in the domestication of global health law. This state of affairs calls for the development of principles to govern the consistent implementation of global health law in the local legal system, during which the courts can play a constructive role.
