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The WHO—Destined to Fail?: Political Cooperation and the COVID-19 Pandemic

Published online by Cambridge University Press:  20 October 2020

Eyal Benvenisti
Eyal Benvenisti*
Affiliation:
Whewell Professor of International Law, University of Cambridge, CC Ng Fellow, Jesus College, Cambridge, Visiting Professor, The Hebrew University of Jerusalem.
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Abstract

In this Essay, I argue that the World Health Organization (WHO) has not been equipped with the necessary authority to adequately fulfill its mission. The WHO was built on the mistaken assumption that attaining adequate global health is a matter of high-level coordination. However, the challenge of global health governance is, crucially, also one of complex political cooperation. I distinguish between different types of cooperation problems faced by the WHO and explain why achieving global health calls for intrusive powers by a governing authority—powers that the WHO does not enjoy.

Type
The International Legal Order and the Global Pandemic
Information
American Journal of International Law , Volume 114 , Issue 4 , October 2020 , pp. 588 - 597
Copyright
Copyright © 2020 by The American Society of International Law

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References

1 Wuhan Lockdown “Unprecedented,” Shows Commitment to Contain Virus: WHO Representative in China, Reuters (Jan. 23, 2020), at https://www.reuters.com/article/us-china-health-who-idUSKBN1ZM1G9. The WHO's updated advice did not include restrictions on international traffic. WHO, Updated WHO Advice For International Traffic in Relation to the Outbreak of the Novel Coronavirus 2019-nCoV, (Jan. 24, 2020), at https://www.who.int/news-room/articles-detail/updated-who-advice-for-international-traffic-in-relation-to-the-outbreak-of-the-novel-coronavirus-2019-ncov-24-jan.

2 See notes 8, 24–25 and accompanying text infra.

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6 On these two problems as two “polar” situations. See Snidal, supra note 3, at 937.

7 Marcos Cueto, Theodore M. Brown & Elizabeth Fee, The World Health Organization: A History 32–33, 39–40 (2019); David Macfadyen, The Genealogy of WHO and UNICEF and the Intersecting Careers of Melville Mackenzie (1889–1972) and Ludwik Rajchman (1881–1965) (Sept. 2014) (unpublished M.D. dissertation, Glasgow University), at http://theses.gla.ac.uk/5625.

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12 Mancur Olson, A Theory of Collective Action (1965).

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15 International Convention for the Regulation of Whaling, Dec. 2, 1946, 161 UNTS 72.

16 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on Their Destruction, Sept. 18, 1997, 2056 UNTS 211.

17 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, Sept. 3, 1992, 1975 UNTS 45.

18 Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (1990).

19 Sebenius, James K., Negotiation Arithmetic: Adding and Subtracting Issues and Parties, 37 Int'l Org. 281, 314 (1983)CrossRefGoogle Scholar; Koremenos, Lipson & Snidal, supra note 13.

20 Council of Economic Advisers, Executive Office of the President, Mitigating the Impact of Pandemic Influenza Through Vaccine Innovation (Sept. 2019), available at https://www.whitehouse.gov/wp-content/uploads/2019/09/Mitigating-the-Impact-of-Pandemic-Influenza-through-Vaccine-Innovation.pdf (the U.S. Council estimated “a 4 percent annual probability of pandemic influenza”).

21 Constitution of the World Health Organization (1948), Arts. 1 & 2.

22 Id. Art. 11.

23 Armin von Bogdandy & Pedro Villareal, International Law on Pandemic Response: A First Stocktaking in Light of the Coronavirus Crisis (Max Planck Institute for Comparative Public Law & International Law, Research Paper No. 2020-07, March 26, 2020), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3561650.

24 According to the WHO Constitution, supra note 21, Art. 28(i), the Executive Board has authority “to take emergency measures within the functions and financial resources of the Organization to deal with events requiring immediate action.”

25 Macfadyen, supra note 7, at 223.

26 Mackenzie, Melville D., Today's Global Frontiers in Public Health, 35 Am. J. Pub. Health 100, 104 (1945)Google ScholarPubMed (“In practice it is impossible to expect more developed countries to be overruled by the votes of nations less developed from a medical and social point of view.”). Elizabeth Fee, Marcu Cueto & Brown, Theodore M., At the Roots of the World Health Organization's Challenges: Politics and Regionalization, 106 Am. J. Pub. Health 1912 (2016)Google Scholar (in the early years, Europeans constituted the majority of the WHO staff, while the recruitment of a few medical experts from developing countries “was criticized for depleting precarious health systems of valuable individuals”).

27 Mackenzie, supra note 26, at 104–05.

28 Fee, Cueto & Brown, supra note 26 (citing U.S. politicians linking national security and the worldwide struggle against disease and poverty: “Disease and poverty must be fought [because they] ‘feed communism’”).

29 Huber, Valeska, The Unification of the Globe by Disease? The International Sanitary Conferences on Cholera, 1851–1894, 49 Hist. J. 453, 456, 471 (2006)CrossRefGoogle Scholar.

30 Fidler, David P., From International Sanitary Conventions to Global Health Security: The New International Health Regulations, 4 Chinese J. Int'l L. 325, 336–37 (2005)Google Scholar.

31 Until Indonesia demurred in 2006, leading to an arrangement with limited results. See Rourke, Michelle F., Access by Design, Benefits if Convenient: A Closer Look at the Pandemic Influenza Preparedness Framework's Standard Material Transfer Agreements, 97 Milbank Q. 91 (2019)CrossRefGoogle Scholar; Eccleston-Turner, Mark, The Pandemic Influenza Preparedness Framework: A Viable Procurement Option for Developing States?, 17 Med. L. Int'l 227 (2017)Google Scholar.

32 Cueto, Brown & Fee, supra note 7, at 37–38.

33 See Sunil Amrith, Decolonizing International Health: India and Southeast Asia, 1930–65, at 159 (2006); Randall M. Packard, Civilizing the State: Borders, Weak States and International Health in Modern Europe, in International Development and the Social Sciences 94, 96 (Roger Cooter & John Pickstone eds., 1998).

34 This was not the only case of effective intervention. During 2003 it also publicly criticized Indonesia for refusing to cull flocks of infected birds, and the pressure led to compliance. Mark W. Zacher & Tania J. Keefe, The Politics of Global Health Governance: United by Contagion 60 (2008).

35 When Toronto was included in a Travel Advisory, on April 23, 2003, the Canadian government demurred and “following political representations at the highest level,” Toronto was dropped six days later. Id. at 61.

36 For the reaction of the WHO to the SARS pandemic, see David P. Fidler, SARS, Governance and the Globalization of Disease (2004). See also Sara E. Davies, Adam Kamradt-Scott & Simon Rushton, Disease Diplomacy: International Norms and Global Health Security 43–73 (2015).

37 David Brown, The SARS Triumph, and What It Promises, Wash. Post (July 20, 2003), at https://www.washingtonpost.com/archive/opinions/2003/07/20/the-sars-triumph-and-what-it-promises/b17713be-2ced-4963-8db2-f5fb46f3956b.

38 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 1949 ICJ Rep. 174, 183 (Apr. 11). See Kamradt-Scott, Adam, The Evolving WHO: Implications for Global Health Security, 6 Glob. Pub. Health 801 (2011)Google ScholarPubMed (suggesting that WHO actions might have been covered by implied emergency powers for it to take all measures necessary to avert an impending global health threat). On functionalism generally, see Jan Klabbers, The EJIL Foreword: The Transformation of International Organizations Law, 26 Eur. J. Int'l L. 9 (2015); Eyal Benvenisti, The Law of Global Governance (2014).

39 Fidler, supra note 36, at 142.

40 Kamradt-Scott, Adam, The International Health Regulations (2005): Strengthening Their Effective Implementation and Utilisation, 16 Int'l Org. L. Rev. 242, 255–56 (2019)Google Scholar. For a legal analysis of the IHR, see J. Benton Heath, Pandemics and Other Health Emergencies, in Oxford Handbook of International Law and Global Security (forthcoming 2020), available at https://ssrn.com/abstract=3574149. For generally supportive assessments of the IHR, see Fidler, David P. & Gostin, Lawrence O., The New International Health Regulations: An Historic Development for International Law and Public Health, 34 J. L., Medicine & Eth. 85, 86 (2006)Google ScholarPubMed (referring to the IHR as “radically depart[ing] from the traditional approach … transform[ing] the international legal context in which states will exercise their public health sovereignty in the future …”). See also Stefania Negri, Communicable Disease Control, in Research Handbook on Global Health Law 273–78 (Gian Luca Burci & Brigit Toebes eds., 2018) (“landmark innovative instrument”).

41 Christian Kreuder-Sonnen, Emergency Powers of International Organizations 162 (2019).

42 Kamradt-Scott supra note 38, at 806.

43 WHO Intergovernmental Working Group on the Revision of the International Health Regulations, IGWG/IHR/Working Paper/12.2003 (Jan. 12, 2004), available at https://www.who.int/csr/resources/publications/IGWG_IHR_WP12_03-en.pdf (see also two subsequent meetings including summary reports of the regional consultations, at http://apps.who.int/gb/ghs/e). The verbatim records of the regional meetings and plenary sessions remain classified. Kreuder-Sonnen, supra note 41, at 164.

44 International Health Regulations, Art. 12, May 23, 2005, 2509 UNTS 79 [hereinafter IHR] (the director general must consult with the Emergency Committee and with the source state before declaring emergency). For criticisms of the composition of the Emergency Committee, see Heath supra note 40, at 14–17.

45 IHR, supra note 44, Art. 9 (the WHO “may take into account reports from sources other than notifications or consultations [with the source state]” and “then communicate [such] information on the event to the [source] state”; “[b]efore taking any action based on such reports, [to] consult with and attempt to obtain verification from the State Party in whose territory the event is allegedly occurring”).

46 Id. Art. 10; see also Art. 11.

47 Id. Art. 9.

48 According to IHR Article 48, a representative of the affected state must be involved.

49 Deshman, Abigail C., Horizontal Review Between International Organizations: Why, How, and Who Cares About Corporate Regulatory Capture, 22 Eur. J. Int'l L. 1089 (2011)CrossRefGoogle Scholar.

50 As Zacher and Keefe (supra note 34, at 69–70) rightly point out, the IHR “gave countries significant leeway in adopting more stringent measures. All that was required of states was that they discuss the more stringent measures that they intended to implement with WHO officials. In other words, states’ sovereign rights of legislation have won out in the debate over excessive measures.”

51 IHR, supra note 44, Art. 43.

52 Id., sec. 4

53 Id.

54 WHO, Report of the Review Committee on the Functioning of the International Health Regulations (2005) in Relation to Pandemic (H1N1) 2009, para. 24, WHO Doc. A64/10 (May 5, 2011).

55 Id.

56 WHO, Report of the Ebola Interim Assessment Panel (July 2015), at https://www.who.int/csr/resources/publications/ebola/report-by-panel.pdf?ua=1.

57 Id. at 1, para. 9.

58 WHO, Report of the Review Committee on the Role of the International Health Regulations (2005) in the Ebola Outbreak and Response, WHO Doc. A69/21 (May 13, 2016).

59 WHO Constitution, supra note 21, Art.1.

60 Koremenos, Lipson & Snidal, supra note 13, at 762.