Transnational Legal Orders and Global Health
Oxford Handbook of Transnational Law (Peer Zumbansen, ed., Forthcoming)
Posted: 13 Sep 2019 Last revised: 29 Sep 2019
Date Written: 2019
As defined by Peer Zumbansen, transnational law provides a methodological approach “through which connections between ‘domestic’ legal ordering and ‘transnational’ governance can be made visible and subject to normative scrutiny.” Importantly, an examination of a transnational legal order (TLO) provides the opportunity to examine the role of multiple players that decenter the state as the primary site of governance. This chapter applies these insights to the governance of public health. Public health law refers to the regulation of individuals through formal and informal governance mechanisms with the goal of ensuring healthy populations. The study of public health law frequently centers the state, this chapter argues, however, that by utilizing a transnational law methodology, scholars are able to see beyond the state to examine the many international, regional, domestic actors that shape national lawmaking on health. A transnational analysis allows for the assessment of the factors, including the broader socio-political and economic forces, that inform lawmaking and domestic actors as they are subject to intersecting layers of governance emanating from national, international, and transnational governance.
This work draws on insights from the field of transnational law to interrogate the influence of the United States (U.S.) government on national level laws pertaining to gender, HIV/AIDS, and abortion through U.S. foreign policy. The U.S. government plays a central role in the governance of HIV and abortion, making its influence on transnational governance a necessary object of study. First, as the largest bilateral and multilateral donor on family planning, reproductive health and HIV, the U.S. government plays an oversized role in global law and politics impacting these fields. Second, the U.S. government utilizes foreign aid to export American ideas about gender and sexuality. Utilizing conditions on aid money including rules on how funding can be used, the U.S. mobilizes funding mechanisms to spread “American values” in national legal systems. In the case of AIDS and abortion, the U.S. government achieves its goal with limitations on the types of laws that can and cannot be advocated for by advocates and others receiving U.S. funds. These funding conditions impact the trajectory of the investment of state actors on legal reforms and national non-governmental actors as they advocate for their constituencies. Applying a transnational law frame allows for an examination of how formal and informal governance mechanisms outside the state function to shape state level activism, lawmaking, and health outcomes.
Keywords: reproductive health, public health, gender and the law, health law
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