This article is part of the series Governance, in crisis.

By Dhruv Sharma
Advocate, India
@dhruv__sharma

Kit De Vriese
Generalist international lawyer, Lindeborg Counsellors at Law
@KitDeVriese

The WHO’s actions as failures of global governance

Resolving collective action problems requires independent functioning of international organisations without over-interference from Member States. Contrary to this foundational principle, throughout the spread of COVID-19, the WHO ignored proactive investigation and relied almost completely on the Chinese version of events despite reports that China had contained news of the spread of the virus and was maintaining restrictions that the WHO opposed.

The emergence of a global pandemic requires deliberative decision-making informed by expert evidence and State experience. Such functioning is particularly relevant considering the influence of WHO recommendation on national behaviour, especially in countries that lack effective national health systems. A duty of due diligence is also incumbent upon States, especially developed ones, and the WHO is not alone in its task of preventing and following up pandemics. Yet, as a formal and specialised vehicle created by States, it bears heightened responsibility. Above all, its leadership has a duty to “point the world in the right direction while maintaining some kind of working relationship with their [M]ember States”.

The importance of deliberative decision-making to ensure scientific recommendations is significant owing to previous instances of criticism directed at the WHO for lack of transparency. Previously, the WHO was criticised for its handling of the H1N1 Pandemic, whereby it was made amenable to an internal review. The Review Committee’s report found several shortcomings, including “[t]he absence of a consistent, measurable and understandable depiction of severity of the pandemic” and the “[l]ack of a sufficiently robust, systematic and open set of procedures for disclosing, recognizing and managing conflicts of interest among expert advisers” (§33). However, diverging – or perhaps diverting – international agendas, combined with the lack of a stringent enforcement mechanism, publicness, and soft internal review,  did not lead to internalisation of the review’s findings.

The WHO’s mistakes during the H1N1 pandemic, when the Organisation was arguably swayed to over-reaction owing to pressure from the pharmaceutical industry, seem to have been repeated in reverse. The initial under-reaction of the Organisation in the face of compelling information offered by States manifests the constraining authority of powerful States over the autonomy of international organisations through interference. Article 37 of the WHO Constitution and pari materia provisions in other constituent Instruments to “not seek or receive instructions from any government or from any authority external to the Organization” seem to only go so far, it seems. The subservience of the WHO, China’s influence, as evidenced from the treatment of Taiwan at the Organisation, and the precarious standing of the Organisation’s Director General, evidences the limited relevance of Article 37.

The reaction of the United States

The functioning of international institutions even before the COVID-19 outbreak was a cause for despair. The European Union (EU), already reeling from Brexit, closed most of its internal and all its external borders in response to the accelerated spread of the virus. It only hesitantly agreed to an emergency fund on 9 April 2020, after compelling Member States to tackle the crisis separately, possibly igniting nationalist sentiments. While it should be at the forefront of a universal and holistic assessment, the United Nations only passed a singular Resolution demonstrating international solidarity on 2 April 2020 when international infections had crossed over 800,000 cases with more than 45,000 deaths. The Security Council remains powerless in front of a veto-wielding China and its COVID-19 approach thus far seems rather fractional. This is in complete contrast to the Ebola outbreak, wherein the Council clearly admitted the outbreak’s effects on international peace and security.

In continuation of an evolving isolationist and siloed approach, President Trump’s decision to cut the WHO’s funding by $400 million, and subsequent “termination” of the relationship, while unfortunate, were not unanticipated. Trump accused the WHO of “severely mismanaging and covering up the spread of the coronavirus”. The decision effectively cut almost a quarter of the WHO’s budget. Nevertheless, there are at least three difficulties with the termination of both WHO funding and the US- WHO relationship.

First and scientifically, although the WHO could be blamed for the delayed admission of human-to-human transmission of COVID-19, it did correct its position. Advances in science require progressive insights and alteration of previous opinion upon presentation of evidence – something which cannot always be said about legal positivists. The attribution of responsibility upon the WHO is understandable. However, the retraction of funding, if at all, could have only been justifiable upon receipt of evidence about information suppression by the WHO and not two and a half months after disclosure of evidence of human transmission.

Second and morally, the functional raison d’être of the WHO and the timing of the withdrawal, i.e. when the pandemic was at its peak, is akin to thwarting “a central fire-station in a municipal system of fire prevention” at the height of a city-wide fire. Further, the US seems to be relying on its own inaction, perhaps a violation of due diligence, in contravention of the international law principle of ex iniuria (jus) non oritur. It is pertinent to highlight that the US had closed its borders regardless of the WHO advisory, and like Italy and the United Kingdom, was originally hesitant to take proactive measures. Further, rather than following the WHO’s adjusted advice in February and March, the US indulged in unilateral (in)action. In this light the present retraction of funding and support to the WHO seems to be a case of blowing hot (blaming the WHO) and cold (anyway not following its advice). Further, President Trump’s follow-up termination of the US relationship with the WHO, apart from having legal-linguistic issues arising from the employment of the term “terminating” (instead of withdrawing), evidences premature response. Contrary to his own unilateral declaration of 19 May (retracting funding unless the WHO made “major substantive improvements within the next 30 days”), the United States seems to have violated its good faith obligations by its termination (or withdrawal) without heeding to the WHO’s acceptance of enquiry into its acts (cfr. Article 26 Vienna Convention on the Law of Treaties).

Third and (geo-)politically, the US withdrawal from yet another international institution will only create a vacuum for China to seize. The functioning of the WHO has been assisted by the US through the contribution of funds necessary to tackle issues of global health. At the same time, the US benefits by advancing its ideological approach to global health (see for historical perspective), as well as by defining focus areas. A halt on funding would only cause the loss of a voice at the Organisation in accordance with Article 7 of the WHO Constitution, which empowers the Organisation to suspend the voting privileges of Member States. Further, the measure has already been rendered futile considering that States like Saudi Arabia, and private actors like the Gates Foundation are plugging the gap created by the halt on funding.

This is an excerpt. To read the full article, visit The Global.
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Note: The views expressed in this post are solely those of the authors. They do not necessarily reflect the views of any institution with which they are or have been affiliated. Nor do they necessarily reflect the views of any of their current or former clients.