By- Tzu-Yu Chiou (邱子宇), Assistant Professor, Department of Law, Hsuan Chuang University, Hsinchu, Taiwan
Abstract
Climate change is increasingly recognised not merely as an environmental crisis but as a public health emergency: heat stress, vector-borne disease, air pollution, and climate-induced displacement now rank among the gravest threats to the right to health worldwide. Yet the dominant liberal-rights paradigm, which frames health as an individual entitlement enforceable against the state, struggles to capture the structural, intergenerational, and collective dimensions of climate-related health harms. This paper argues that Common Good Constitutionalism (CGC), as developed by Adrian Vermeule, supplies a more adequate constitutional grammar for climate-health governance in the digital age. Drawing on Vermeule's revival of the classical ius/lex distinction and the doctrine of determinatio, and on Lorenz von Stein's theory of the social administrative state, the paper compares Taiwan's administrative determinatio of health obligations with India's adjudicative determinatio under Article 21, before scaling the analysis to global health governance under the WHO Pandemic Agreement and the amended International Health Regulations, and to the digital dimension of AI-assisted epidemic modelling, telemedicine, and cross-border health data flows.
Keywords: Common Good Constitutionalism; Adrian Vermeule; right to health; climate justice; WHO Pandemic Agreement; determinatio; digital health governance
I. Introduction
Climate change is no longer adequately described as an environmental externality. It is, with increasing empirical clarity, a public health emergency operating on multiple temporal and spatial scales at once. Heat stress and heat-related mortality, the geographic expansion of vector-borne disease, the health burdens of air pollution co-produced with fossil-fuel combustion, and the displacement of populations by sea-level rise, drought, and extreme weather now rank among the gravest threats to the right to health worldwide. The Lancet Countdown has, for over half a decade, tracked the widening gap between the health consequences of a warming planet and the pace of policy response, and its most recent reports confirm that this gap is a matter of institutional design and not merely of scientific uncertainty.
Confronted with this emergency, the dominant constitutional and human-rights paradigm for health — one that frames health as an individual entitlement enforceable, ex post, against a state that has failed to act — struggles on at least three fronts. First, it struggles with structure: climate-related health harms are produced by diffuse, cumulative, and often extraterritorial causal chains that do not map neatly onto the bilateral, rights-holder/duty-bearer architecture of classical liberal rights adjudication. Second, it struggles with time: the worst health harms of the present emissions trajectory will fall on persons not yet born, who cannot hold rights against present decision-makers in any conventional justiciable sense. Third, it struggles with governance capacity: courts adjudicating individual claims are poorly positioned to design the systemic, anticipatory, and continuously adjusted regulatory apparatus — early-warning systems, adaptive health infrastructure, cross-border data governance — that climate-resilient health systems actually require.
This paper argues that Common Good Constitutionalism (CGC), as reconstructed by Adrian Vermeule from within the classical legal tradition, supplies a constitutional grammar better suited to these three structural features of climate-health governance than does liberal rights-maximalism, and better suited than the originalist positivism with which CGC is most often contrasted. Vermeule's revival of the classical distinction between ius — objective right order, the just arrangement of persons and goods within a political community — and lex — the positive law by which public authority specifies ius for a given time and place — offers a vocabulary for treating the right to health not as a subjective claim to be balanced against countervailing state interests, but as an objective requirement of justice that public authority is under a duty to specify into workable legal order through the disciplined exercise of practical reason, a process the classical tradition calls determinatio.
The paper's contribution is threefold. First, within CGC scholarship, which has to date been developed and debated overwhelmingly with reference to United States constitutional controversies — abortion, administrative deference, religious liberty — the paper extends the framework to a substantive domain, climate-health governance, and a comparative geography, South and East Asia, that existing CGC literature has scarcely addressed. Second, within comparative constitutional law on the right to health, which has generated a substantial literature on India's adjudicative model and a smaller literature on East Asian administrative models, the paper proposes determinatio as a unifying analytic that explains why both channels can be constitutionally adequate without collapsing the real differences in their accountability structures. Third, the paper is, to its author's knowledge, among the first to theorise the 2024–2025 reforms to global pandemic governance — the amended International Health Regulations and the WHO Pandemic Agreement — explicitly through the lens of determinatio, offering an alternative to the dominant contractualist reading of these instruments in international-law scholarship.
The paper's argument proceeds in four moves, tracking the structure of the underlying research programme. First, Part II reconstructs the right to health through the ius/lex distinction and determinatio, showing how Vermeule's interpretive theory directs constitutional actors to read health-related texts and silences in light of their ordering to the common good of peace, justice, and abundance — a triad that in the Anthropocene necessarily encompasses climatic stability. Second, Part III compares Taiwan and India as two Asian constitutional democracies specifying climate-health obligations through different institutional channels: India through adjudicative determinatio under Article 21 of its Constitution, and Taiwan through administrative determinatio via universal health insurance and climate legislation under comparatively thin judicial supervision — a bifurcation illuminated by Lorenz von Stein's account of the social administrative state as the executive arm of a constitutional order's commitment to substantive social citizenship. Third, Part IV scales the analysis to global health governance, theorising the WHO Pandemic Agreement and the 2024 amendments to the International Health Regulations as determinatio at the international level. Fourth, Part V turns to the digital dimension — AI-assisted epidemic modelling, telemedicine for climate-displaced populations, and cross-border health data flows — arguing that a CGC framework disciplines these technologies through legality and rational ordering to the common good rather than through market logic or rights-based paralysis. Part VI concludes.
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