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CONTENTS

Contributor Biographies viii

Introduction: Justice in Global Health 1

Himani Bhakuni and Lucas Miotto

PART I
Citizenship, Power, and Relational Justice 13

1 World Citizenship and Global Health 15

Xuanpu Zhuang

2 AI-DSS in Healthcare and Their Power over

Health-Insecure Collectives 38
Nils Freyer and Hendrik Kempt

PART II
Responsibility for Justice: Law, Civil Society,
and the Private Sector 57

3 Everything is Unconstitutional: Contesting Structural

Violence in Health Systems with Legal Mobilisation 59
Luciano Bottini Filho
vi Contents

4 Framing Noma: Human Rights and Neglected

Tropical Diseases as Paths for Advocacy 82
Alice Trotter and Ioana Cismas

5 Trade Marks and the Right to Health:

A Growing Tension 111
Alvaro Fernandez-Mora

PART III
Sexual Rights and Reproductive Justice 131

6 The Capability Approach and the Sexual Rights

of Children and Adolescents 133
Gottfried Schweiger

7 Reproductive Justice and Ethics of Consent in Assisted

Living Facilities for Disabled People: A Critical
Reflection for Socio-Legal Policies on Long-Term
Care in India 150
Keerty Nakray

PART IV
Health Governance, Security, and Transitions 175

8 Justice in Global Health Governance:

The Role of Enforcement 177
Daniel Elliot Weissglass

9 The Ethical Issues Raised by the Securitisation

of Health 201
Ryoa Chung and Joanne Liu

10 Transitional Health Justice 216

Himani Bhakuni and Lucas Miotto
 Contents vii

PART V
Global Health Justice: New Frames,
New Approaches 239

11 Redistribution and Recognition in the Pursuit

of Health Justice: An Application of
Nancy Fraser’s Framework 241
Erika Blacksher

12 Beyond Egalitarianism: A Confucian Approach

to Global Health Justice 271
Man-to Tang

13 What Do We Want from a Theory of

Global Health Justice? 289
Sridhar Venkatapuram

Index 305
CONTRIBUTORS

Alice Trotter is a PhD candidate at the Centre for Applied Human Rights
at the University of York, United Kingdom. Alice has been involved in
the pluridisciplinary project ‘Noma, The Neglected Disease. An
Interdisciplinary Exploration of Its Realities, Burden, and Framing’. Her
other research focuses on human rights in cities.

Alvaro Fernandez-Mora is a Lecturer at York Law School, United Kingdom. He

holds a DPhil from the University of Oxford (DPhil) and an LLM from
Harvard Law School (LLM). Dr Fernandez-Mora’s research interests lie at the
intersection between intellectual property law and other fields – notably
human rights and competition law and economics. Dr Fernandez-Mora’s
work has been published in the Berkeley Journal of International Law (BJIL),
the International Review of Intellectual Property and Competition Law (IIC),
and the Intellectual Property Quarterly (IPQ), among others.

Daniel Elliot Weissglass is an Assistant Professor of Philosophy at Duke

Kunshan University. His chief research interests with respect to health
include models for improving the moral and political adequacy of global
health governance, models of decision making for persons with
compromised and/or variable cognitive capacities, assessing the values
implicit in the tools used to measure and report health outcomes, and the
risks and benefits of medical AI – especially in LMICs.

Erika Blacksher is the John B. Francis Chair at the Center for Practical
Bioethics and Research Professor in the Department of History and
 Contributors ix

Philosophy of Medicine at the University of Kansas School of Medicine. Dr.

Blacksher studies questions of responsibility and justice raised by U.S. health
inequalities and the potential for democratic deliberation to build shared
purpose across race, class, and geography and to make health a shared value.
Her current work focuses on intersectional health inequalities, with a focus
on class, poverty, and race, and the methodology of democratic deliberation.

Gottfried Schweiger is a Senior Scientist at the Centre for Ethics and Poverty
Research (CEPR) and a member of the Philosophy Department (KTH) of the
University of Salzburg, Austria. His research revolves around social and
political philosophy with a focus on poverty, social and global justice,
migration, childhood and youth, social work, sports, and critical theory.

Hendrik Kempt works mostly in applied ethics, with a focus on the ethics of
medical AI, natural language processing, and human–machine relationships.
He has published several books and articles, his latest being on “Synthetic
Friends”. He is a research associate at the Applied Ethics Group at RWTH
Aachen.

Himani Bhakuni is a Lecturer at York Law School, United Kingdom. Before

that, she was the Assistant Professor of Justice in Global Health Research at
the University Medical Center, Utrecht University. She primarily works on
issues within global health and human rights, particularly on questions
surrounding justice, reparations, and global health law.

Ioana Cismas is a Reader and the Co-Director of the Centre for Applied
Human Rights at the University of York, United Kingdom. Dr Cismas’
interests span the broad discipline of public international law, the specialist
branches of international human rights law and international humanitarian
law, and related fields, such as law and religion and transitional justice. Her
work has attracted substantial research grants from the UK Economic and
Social Research Council (ESRC), the Swiss National Science Foundation,
the Swiss Network of International Studies (SNIS), and several non-govern-
mental organisations and charities. Currently, Dr Cismas co-coordinates the
SNIS-funded project Noma, The Neglected Disease. An Interdisciplinary
Exploration of Its Realities, Burden, and Framing.

Joanne Liu is an Associate Professor of Medicine at the University of

Montreal, a Professor of Clinical Medicine at McGill University, and the
former International President of Médecins sans Frontières. She is also a
paediatric emergency medicine physician in Montreal.
x Contributors

Keerty Nakray is a Professor at Jindal Global Law School, NCR Delhi and
Adjunct Faculty at the Centre for Ethics, Yenepoya University, Mangalore.
She holds a PhD in Sociology and Social Policy from Queen’s University
Belfast, Northern Ireland. Her research deals with topics such as gender-
based violence, social policy, child poverty, and social exclusion.

Lucas Miotto is a Senior Lecturer in Law at the University of Surrey and a

core member of the Surrey Centre for Law and Philosophy. He works at the
intersection between legal, moral, and political philosophy, dealing with
questions about coercion, manipulation, wrongful interference, and forms of
just governance.

Luciano Bottini Filho is a Lecturer in Human Rights Advocacy at Sheffield

Hallam University and an affiliated researcher at the Petrie-Flom Center for
Health Law Policy, Biotechnology, and Bioethics at Harvard University. His
research studies resource allocation, global health, and the right to health.
He has been both a Modern Law Review Scholar for his PhD studies at
Bristol and a Chevening Scholar by nomination of the UK Foreign,
Commonwealth and Development Office (FCDO).

Man-to Tang is a Visiting Fellow at the Department of Public and

International Affairs, City University of Hong Kong. His research interests
are in phenomenology, classical and contemporary Confucianism, and
political philosophy.

Nils Freyer works in the field of machine learning, especially active learning
and natural language processing. His research interests also include
questions of AI ethics, with a focus on medical AI. He is currently a
research assistant at FH Aachen – University of Applied Sciences.

Ryoa Chung is a Full Professor in the Department of Philosophy of the

University of Montreal and Co-Director of the Center for Research in Ethics.
She works in the field of international ethics, feminist philosophy, political
philosophy, and health inequality. She also teaches medical ethics/bioethics
at the Faculty of Medicine of the University of Montreal. Her works have
appeared in edited volumes published by Oxford University Press, Presses
universitaires de France, and in journals such as Journal of Social
Philosophy, Journal of Medical Ethics, Public Health Ethics, The Lancet,
and Hastings Center Report.

Sridhar Venkatapuram is an Associate Professor of Global Health and

Philosophy at King’s College London in the United Kingdom. He is based
 Contributors xi

at the Global Health Institute, where he is Deputy Director, and Director of

Global Health Education. He is the author of Health Justice: An Argument
from the Capabilities Approach (2011), co-editor of Vulnerable: The Law,
Policy and Ethics of Covid-19 (2020) and The Routledge Handbook of
Philosophy of Public Health (2022). He can be found at @sridhartweet.

Xuanpu Zhuang is a PhD candidate at Bowling Green State University,

Department of Philosophy. Xuanpu works on issues within political and
practical philosophy, particularly on issues pertaining to equality, citizenship,
and justice.
INTRODUCTION
Justice in Global Health

Himani Bhakuni and Lucas Miotto

As we write this introduction in early 2023, we are fortunate to have sur-

vived one of the most daunting global health emergencies of our time, but the
world lost many to COVID-19. Health emergencies tend to refocus our
attention not only on the value of life, but also on the centrality of health in
preserving life. In the early days of the pandemic, COVID-19 was called
“a great equaliser”, that it would affect everyone the same. But soon enough,
that thought went out the window quite like almost everything else that has
been called a great equaliser before. It is not news that our world is riddled
with staggering inequalities. Everything that threatens humankind tends to
threaten some bits of humankind more than others. But that we continue
to bear these inequalities despite there being other ways to think, reason, and
act is even more staggering.
This book is about that – not about continuing to bear the different forms
of health inequalities – but about challenging them. Our contributors, from
varied disciplines, have thought of some problems in global health and have
given reasons for why we would all be better off in thinking of a given
problem in a particular way. Some have provided legal solutions; others
have questioned the way we frame issues. Some have proposed newer fra-
meworks that could be used to tackle injustices in global health, while others
have used pre-existing theories of justice and applied them to modern-day
health issues. But the goal of each chapter in this edited volume is the same –
to provide some guidance on what would aid the field of global health in
achieving its lofty aspiration of improving health for all people worldwide.
We choose the overarching language of justice to do so.
Up until a few decades ago the notion of justice (in academic circles at
least) was predominantly territory bound. There was international justice,

DOI: 10.4324/9781003399933-1
2 Himani Bhakuni and Lucas Miotto

but it was largely about justice amongst nations. Lately, factors including
globalisation, digitalisation, increasing climate change, economic inter-
dependence, and enduring global effects of colonial histories, have all led to
the expansion of the scope of justice. Today, we talk about global justice not
only when we consider duties that we have towards others beyond nation-
states, but also when we talk about worldwide inequalities as moral prob-
lems which are embedded in local contexts and shared norms. Global health
justice then becomes an area of research that focuses on proposing, creating,
and maintaining conditions that would enable everyone, not just a privileged
few, to experience and achieve good health and life.
Philosophers and political theorists have attempted to provide an
overarching theory of global health justice, wherein they have been par-
ticularly inspired by the capabilities approach.1 Some have extended pre-
existing theories of global justice and the rights-based approach to
health.2 Despite all these commendable efforts, it is quite likely that,
given the multitude of global health problems, a single overarching theory
of justice would still at best be a partial explanation of the duties and
obligations of various stakeholders involved in the debate. Which is why
this edited volume adopts a mix of approaches to look at justice in global
health, it provides some new philosophical frames and fresher takes on
existing frames, but it also tackles some more specific problems that we
believe that any successful overarching theory of global health justice
must address. While general frameworks of justice help to provide a better
understanding of our world and our responsibilities within it, more spe-
cific incursions on specific issues allow us to see solutions to problems
that might not be immediately available or salient to those who attempt
to provide unifying frameworks.
We are aware that this book is releasing at a time when people might be
going through a health-topic fatigue. A lot has been written (and is being
written) about health, daily. But we nonetheless believe that this volume
adds much more than just noise to the conversation. The volume contains 13
original contributions, most of which were first presented online at the
Justice in Global Health Workshop Series in October 2022. The contribu-
tions address a wide range of issues and topics within global health justice:
from specific challenges associated with an overlooked disease, future in-
justices caused by the development of new technologies, role of law in
addressing commercial determinants of health, and institutional reforms,
to new theoretical frameworks for global health justice. As editors, we are
proud of the volume’s thematic breadth. But we are also proud of the
interdisciplinary dialogue that took place amongst contributors from dif-
ferent backgrounds and corners of the world. Such dialogue allowed us to
identify some common threads and insights running across contributions,
which we think would be valuable to anyone interested in global health and
 Introduction 3

global health justice. To make the threads clearer to our readers, we have
divided the volume into five parts. This division, however, should not be seen
as an attempt to draw hard boundaries; some themes, arguments, and
concepts recur through the volume. In what follows we provide an overview
of the volume’s contributions.

Part I. Citizenship, Power, and Relational Justice

The first part illustrates a pervasive theme in the book. Justice in global
health requires more than a fair distribution of resources – it requires a fair
distribution of the burdens necessary to maintain our health systems glob-
ally. It also requires addressing morally problematic relations of power and,
more specifically, that we relate to one another as equals and respectfully in
health-related contexts. Relational justice is, therefore, integral to global
health justice. However, promoting relational justice in global health may
require radical shifts in our current institutional and political architecture,
as is argued by the two chapters in this part.
In World Citizenship and Global Health (Chapter 1), Xuanpu Zhuang
argues for one of those shifts by favouring the introduction of the cosmo-
politan ideal of world citizenship. “People are not just abstract moral
beings”; their identity, rights, and obligations are shaped by their social and
political arrangements. Citizenship marks an important form of membership
in a social and political arrangement. It typically determines the political
rights, liberties, and obligations that individuals have towards the state and
towards other individuals living in the same territory. Often, however, social
and political relations outgrow the confines of a state or territory: individuals
interact as a global community on global matters. This raises a question
about the need for a form of world citizenship which, Zhuang argues, is not
simply national citizenship writ large. It is, instead, an extra layer of social
and political association significant enough to ground certain entitlements to
social goods, welfare, and capabilities.
Global health enters the scene because the capability of being healthy is,
according to Zhuang, a necessary condition of functioning as a world citizen.
To justify this claim, Zhuang introduces the four “Problematic Hierarchies”;
four ways in which the absence of health undermines the sort of egalitarian
relations which are constitutive of world citizenship. From the discussion, it
becomes apparent that strengthening global health is necessary for main-
taining the relational egalitarian ideal of world citizenship. But – the chapter
also seems to entail – the relationship goes both ways: not only is the
capability of being healthy a necessary condition of world citizenship, but
some demands to promote global health justice also flow from and are (at
least partly) constituted by broader demands of relational equality and
respect enshrined in world citizenship.
4 Himani Bhakuni and Lucas Miotto

A good illustration of the relationship between global health justice and

relational egalitarianism is found in AI-DSS in Healthcare and Their Power
over Health Insecure Collectives (Chapter 2). In this chapter, Nils Freyer and
Hendrik Kempt discuss a dilemma that arises from the introduction of
artificial intelligence-led decision support systems (AI-DSS) in expert-scarce
areas – for example, a system that diagnoses and recommends treatment for
a disease without the interference of a medical expert. These systems require
what is known as “explainability standards”: standards that allow humans
to understand and assess the reliability of the conclusions and recommen-
dations reached by an automated system. For optimal reliability, these
standards must be stringent. But the costs, technology, and qualified per-
sonnel required to maintain stringent explainability standards cannot often
be met by expert-scarce communities – or “collectives”, as the authors
believe we should call them. Hence the dilemma: either expert-scarce col-
lectives do not introduce automated systems and abandon their hopes to
reap the health benefits that these systems bring, or these collectives settle for
a cheaper alternative and accept whatever explainability standards are of-
fered to them by the relevant corporations. Because the second horn of this
dilemma is often the more tempting one, the emergence of a “colonial
mindset” and the introduction of a relation of domination between collec-
tives and corporations are obvious risks.
The main difficulty, then, is whether this relation of domination can be
avoided without abdicating the potential health benefits introduced by AI-
DSS. The authors propose a way to negotiate explainability standards that do
not require eschewing relational justice. The solution explored in the chapter is
instructive, as it can be extended to contexts where a similar clash between
health benefits and relational justice arises. For example, in contexts of clinical
research where some researchers and participants are tempted to relax
research regulations in the name of efficiency or short-term health benefits.

Part II. Responsibility for Justice: Law, Civil Society, and the Private Sector
The second part of the volume focuses on the role and responsibilities of
courts, advocacy groups, and the private sector in the promotion of global
health justice. The opening chapter, Everything Is Unconstitutional –
Contesting Structural Violence in Health Systems with Legal Mobilisation
(Chapter 3), highlights the use of constitutional remedies as a tool for
the elimination of structural violence and inequality in global health. The
author, Luciano Bottini Filho, centres the discussion on a case from 2021
where the Brazilian Supreme Court relied on the “state of unconstitutional
affairs” doctrine to declare the entirety of the Brazilian public health system
unconstitutional in light of its systematic and enduring violation of trans-
gender people’s right to health, life, and dignity.
 Introduction 5

The Court’s decision helps to highlight the importance of relational justice

in the context of global health justice. As we can infer from the chapter,
not only was the declaration of unconstitutionality grounded on the denial of
health resources, but it was also (and perhaps primarily) based on the sys-
tematic discrimination and exclusion of transgender people in the context of
healthcare. The chapter also illustrates the vital role that courts can play in
the broader transformation of health systems and society more generally.
In so doing, it also aligns with the discussion about the just transformation
of health systems that appears later in the volume (Chapter 10).
In Framing Noma: Human Rights and Neglected Tropical Diseases as
Paths for Advocacy (Chapter 4), Alice Trotter and Ioana Cismas discuss the
strategic importance of framing to strengthen the efforts of advocacy groups
and campaigns and to bring about changes in global health. Roughly, to
“frame” a given issue is to choose the way in which the issue is communi-
cated to a selected audience; thus, a “frame” can be seen as a rhetorical
device. In the chapter, the authors discuss the findings from their own em-
pirical research on the uses of alternative frames for tackling noma, a rela-
tively unknown disease that, despite being preventable and treatable, has an
estimated mortality rate of around 90% in children. Noma primarily affects
those living in extreme poverty, and its effects were initially framed as a
medical or humanitarian emergency which, despite the relative success in
attracting aid from charities and doctors from the Global North, also
brought with it relations of dependency and “signalled a ‘white saviour’
trope”. Here the chapter brings us back to the importance of relational
justice to global health: the alternative framings considered by the authors –
framing noma as a neglected tropical disease and as a human rights issue –
were used precisely to make both material progress in combating the disease
and relational progress, as it were, in avoiding the emergence of problematic
social relations in the context of health. The chapter, therefore, illustrates
how civil society and advocacy groups can play an effective role in tackling
global health injustices by carefully choosing how to frame these injustices.
In this part’s last chapter, Trade Marks and the Right to Health: A
Growing Tension (Chapter 5), Alvaro Fernandez-Mora discusses policy-
makers’ use of trade mark-restrictive policies to protect health and health
rights. Such policies range from advertisement bans to more aggressive
restrictions on packaging and aim at making harmful products less attractive
to consumers. These policies stem from the assumption that manufacturers
of such harmful products – most notably the tobacco industry – cannot be
exempted from a responsibility to promote health. Hence, the sacrifice of
their rights to intellectual property and freedom of expression in the name of
health seems justified. Be this as it may, Fernandez-Mora identifies a rapid
expansion of such health-oriented restrictions into the control of alcoholic
products and foods high in fat, sugar, and salt. There, the justification of
6 Himani Bhakuni and Lucas Miotto

implementing such restrictions may not be straightforward, and the risk of

undesirable spillover effects is higher. Courts, being key to the success of
health-promoting policies, must be mindful of these hurdles when deciding
on the adequacy and legality of such expansionist policies. Though tempting,
the “protect health by any means” approach can sometimes cause more
harm than the prospective harms from which health-oriented policies seek to
protect us. Doing justice in global health – and this is a lesson that we can
draw from the chapter – sometimes requires that we take a counter-intuitive
step away from the short-term protection of the right to health and focus our
efforts on other rights which can sometimes be more important to societal
well-being in the long run.

Part III. Sexual Rights and Reproductive Justice

The third part of the volume considers some significant issues within a
specific branch of global health justice: sexual and reproductive justice.
Sexual health and rights are often subsumed under reproductive health
and rights, but both are conceptually distinct, albeit related, areas. WHO’s
working definition of sexual health states that it “requires a positive and
respectful approach to sexuality and sexual relationships, as well as the
possibility of having pleasurable and safe sexual experiences, free of coer-
cion, discrimination and violence”.3 While much has been written about
sexual rights of adults and able-bodied persons, two groups stand out as
understudied and undertheorized in this area: children and adolescents and
persons with disabilities (PWDs). The chapters included in this part address
these two groups.
In The Capability Approach and the Sexual Rights of Children and
Adolescents (Chapter 6), Gottfried Schweiger considers how sexual rights
reflect the developmental dynamics of child and adolescent autonomy and
what aspects of well-being, or what capabilities, these rights protect and
enable. Schweiger uses the capability approach to enumerate the sexual
rights of children and adolescents, while also focusing on the differences
between children and adolescents. His argument is that while sexual rights of
children largely deal with defence against dangers and attacks, they must not
be limited to that. By relying on the capabilities approach, he proposes a
conceptual expansion of sexual rights for children and adolescents: sexual
rights should also empower and enable children and adolescents to develop
in a sexually healthy way so that they can express their agency according to
their level of maturity. This conceptual expansion places sexual education
policies as well as measures to raise awareness of contraceptives and sexually
transmitted diseases amongst teenagers at the forefront of children and
adolescent health. The capabilities approach assists in clarifying that sexual
development is part of healthy development and that there are good reasons
 Introduction 7

to break some of the taboos associated with the talk about sexual health of
children and adolescents if we want to make progress in global health.
In Reproductive Justice and Ethics of Consent in Assisted Living Facilities
for Disabled People: A Critical Reflection for Socio-Legal Policies on Long-
Term Care in India (Chapter 7), Keerty Nakray claims that people suffering
from severe intellectual disability are subjected to what is known as “erotic
segregation”: the conception according to which disabled people are asexual
and not supposed to engage in sexual activities. She uses the framework of
critical disability studies to diagnose the cause for this as stigma and dis-
crimination faced by not only the PWDs but also their carers. Her chapter
summarises the Indian legal framework dealing with consent of PWDs and
discusses leading precedents that demonstrate that despite having a legally
recognised right to consent over sexual and reproductive matters, this right
for PWDs is barely upheld. Given this and other issues with long-term social
care in India, Nakray proposes that some individuals might be able to
achieve sexual decision-making capacity through the assistance of a decision-
making support network. And that such “network consent” could create
opportunities for new social justice paradigms and assure long-term humane
care of PWDs.

Part IV. Health Governance, Security, and Transitions

Global health governance refers to the use of formal and informal institu-
tions, processes, and rules created and employed by various stakeholders
to effectively deal with challenges to global health that require collective
action within and across borders. Since its inception, the World Health
Organization (WHO) has been the primary institution dealing with health
governance as it remains the only international health organisation that can
promulgate treaties and regulations with the power to legally bind member
states. But (sometimes) with great power, comes greater scrutiny. In the
chapter Justice in Global Health Governance: The Role of Enforcement
(Chapter 8), Daniel Elliot Weissglass scrutinises some key provisions of
the WHOs legally binding International Health Regulations (IHR) and es-
tablishes a pattern of pervasive noncompliance with those provisions. He
argues that noncompliance with IHR creates not only practical, but political
problems, as it creates an environment for the continuation of both sub-
stantive and procedural injustices.
Weissglass regards noncompliance as a violation of the Rawlsian ‘prin-
ciple of fidelity’, which in short means that promise keeping under appro-
priate circumstances is a fundamental principle of justice. When states fail to
meet their obligations under IHR they violate this principle which leads to
unfairness in the outcomes of the global health system and perpetuation of
health disparities. He further argues that noncompliance leads to unfairness