27 März 2020

The WHO After Corona: Discretionary Powers for the Next Pandemic?

Imagine the World Health Organization (WHO) had declared the outbreak of the mysterious lung ailment in the Chinese city of Wuhan a potential public health emergency of international concern already in late December 2019. Imagine it had immediately decreed a precautionary lockdown of the metropolitan area until the severity of the illness was assessed or the virus extinct. It might have been just in time to halt the spread of the disease which by now has become a supreme global emergency of unforeseen proportions.

Of course, this scenario was far from realistic given the WHO’s limited mandate and political authority. In reality, far from stopping the crisis dead in its tracks, its approach of appeasement and applause vis-à-vis China may have exacerbated the situation. The coronavirus crisis exposes deep gaps in the global governance of infectious diseases. Tragically, rectifying those problems would mean painful adaptations not only at the costs of national sovereignty, but also of democracy and constitutionalism.

Mandate and authority of the WHO in global health crises

Since the 2005 reform of the International Health Regulations (IHR), the WHO is the lead international agency to coordinate and direct responses to infectious disease outbreaks. Crucially, all states are obliged to notify the WHO secretariat of all public health concerns that may represent an international health risk within 24 hours of assessing the relevant information (Art. 6 IHR). Based on such state notifications and/or information gathered from other sources, the Director-General can decide to declare a Public Health Emergency of International Concern (PHEIC) and recommend measures for states to contain the outbreak (Art. 12 IHR). Their decisions must consider the views of an ad hoc Emergency Committee of medical experts that is convened by the Director-General.

The organization’s repertoire of potential emergency measures and operative capacities is relatively limited. Mainly, it coordinates research and development efforts, e.g., to isolate the pathogen and find treatments and vaccines, shares information with member states, and recommends appropriate containment strategies, including hygiene measures and travel restrictions. While the recommendations are non-binding, states are required to provide scientific rationales for their deviations that the WHO can publicly assess (Art. 43(3) IHR). This, in effect, is the strongest tool in the WHO’s emergency box: the public naming, shaming, or commending of governments depending on their performance against WHO standards.

Like most other international organizations, the WHO lacks enforcement capacities and its authority thus depends on the recognition and voluntary compliance by its member states. Nevertheless, in some instances, the WHO has been able to impose itself as a natural leader in crises. In the coronavirus crisis, however, it has shirked this role.

WHO’s performance during the coronavirus crisis

There is no question that the WHO has done and continues to do important work during the Covid-19 pandemic. In particular, the mechanisms for sharing information and coordinating transnational networks of scientists in the search for medical solutions are functioning well. However, with the benefit of hindsight, it is also clear that some decisions of the Director-General and his Emergency Committee were seriously flawed.

Most importantly, the organization seemed very reluctant to declare a PHEIC out of deference to the Chinese government. The outbreak can be dated back to the beginning of December, maybe even mid-November. It is widely undisputed that Chinese authorities tried to actively suppress reporting on the new coronavirus and to silence ‘whistleblowing’ doctors aiming to warn their colleagues of the health risk. It was not until December 31st that the government first notified the WHO about the emerging disease, albeit publicly continuing to insist that the disease was still “preventable and controllable” until late in January 2020.

This early reaction, which closely resembles the Chinese response to the SARS outbreak some 17 years earlier, seems to be indicative of a pattern of behavior. Yet, while back then the WHO stood up to China in an unprecedented move of self-assertion, condemned its concealment efforts, and issued travel warnings for the affected regions without the government’s consent, this time Director-General Dr. Tedros chose the opposite approach. From the start, he lauded China’s cooperation as impeccable, commended its domestic containment efforts, and declared China the picture book example of how to deal with an epidemic of the sort. In line with this approach, Tedros also decided not to declare a PHEIC after the first meeting of the Emergency Committee, because China allegedly had the domestic emergency under control. When the WHO eventually declared the outbreak a global health emergency on January 30th, it did so in the belief that the spread of the virus could still be contained and added that the decision “should be seen in the spirit of support and appreciation for China.”

At that time, studies show today, the coronavirus had already spread to thousands of people around the globe and outbreaks were growing in 30 cities across 26 countries. On the one hand, it seems that the experts in the Emergency Committee misinterpreted the evidence or were simply lacking it. On the other hand, the organization’s course of action was also politically motivated. Some argue that the WHO’s subservience could be linked to China’s growing financial influence in the organization and even personal debts that Tedros owed to China for getting him elected as Director-General. Another explanation could be that the WHO was entrapped by China’s international communication strategy that – once it had admitted the outbreak – centered on taking harsh measures to the benefit of global health security, a norm the WHO has been propagating for over two decades.

In any case, the way the WHO fills its emergency mandate during the coronavirus crisis is problematic. This fact and its causes need to be borne in mind when pondering the question of whether to give the organization additional powers.

Lacking capacities to address the coming humanitarian crisis

With almost the entire OECD world in lockdown, discussions currently revolve around the consequences of the economic standstill in industrialized economies. Little attention is paid to the likely humanitarian catastrophe that the Covid-19 pandemic is about to cause when fully reaching developing countries, especially in Sub-Saharan Africa. The 2014 Ebola crisis has provided ample evidence for what happens when extremely fragile health systems are overburdened by the outbreak of a fast-spreading deathly disease. Seeing health systems of EU member states collapse under the weight of Covid-19, it is not hard to imagine what it will do to countries in the Global South.

The WHO’s response to the Ebola outbreak in West Africa has also been criticized as undecisive and delayed. The main problem, however, was the lack of operative capacities at the WHO’s disposal. Not only are there legal and institutional constraints on what the WHO can do on the ground, it was also decisively hampered by lacking financial and human resources. In the year before the Ebola outbreak, member states had halved their contributions to the crisis response budget of the WHO (to a meagre $228 million) which then had to operate the emergencies units with but a few dozen people.

In light of the disastrous outcome, member states and the agency agreed on an institutional reform and created a new emergencies program that integrates all outbreak and crisis response tasks under the IHR, now explicitly including emergency operations on the ground to ensure that vulnerable populations have access to essential health services. The major problem of course remains the lack of sufficient and stable funding: Even the new program is dependent on voluntary contributions by member states that continue to fall short of WHO targets.

Its Contingency Fund for Emergencies, for example, that is supposed to bridge critical gaps in urgent outbreak responses including to Covid-19, has so far merely collected $17.5 million in 2020. That is not even a ‘drop in the bucket’ considering the dimensions of the coronavirus crisis. When things get ugly in developing countries, the WHO will hardly be able to help. This will be further reinforced by the fact that industrialized states are currently first and foremost looking out for themselves amid growing medical and economic hardship and thus test supplies, protective gear etc. will be least available in the ‘third wave’ of the pandemic that is going to hit the most vulnerable.

In this context, despite well-meant reforms after the West-African Ebola outbreak, Suerie Moon and colleagues conclude that “the world remains grossly underprepared for outbreaks of infectious disease.

Do we need a ‘global health dictatorship’?

There is no need for prophetic abilities to know that the tectonic shifts of the current mega-crisis will prompt transformations in the architecture of global health governance. Of course, a lot will depend on how things unfold in the months to come. However, the fact that Covid-19 is affecting literally everyone around the world makes it possible that there will be a window of opportunity for strengthening the international regime for global health security. The devastating consequences of the coronavirus crisis might spur a ‘never-again’ moment that puts the prevention of comparable future pandemics above all else.

A first and normatively uncontroversial reform would be to maintain the current governance system of the WHO, but to fix its financing structure and to substantively increase the amount of regular funding for the emergencies program in particular. While this seems like an obvious measure that will unquestionably save lives in health emergencies like Covid-19, it is unlikely to meaningfully prevent future pandemics, as it leaves the WHO ‘empty-handed’ in controlling the behavior of states.

Pandemic prevention is a collective action problem. The global public good of health security requires contributions by all states, i.e. the identification, notification, and rapid containment of outbreaks. Yet, states tend to have interests such as national economic stability or reputation gains that cause them to behave in ways that are regressive to collective interests. This could explain the initial Chinese reluctance to address the Covid-19 outbreak on its territory. Others, such as Guinea and Sierra Leone in the Ebola crisis, might just lack the capacity to make such contributions. From a functionalist perspective, then, the solution lies in the transfer of authority and capacity to an international organization that assumes jurisdiction over these matters.

At a time when populists and autocrats who try to talk the virus away lead many of the most powerful states on earth, this idea seems enticing. However, it would also imply transferring authoritarianism from the domestic to the international level, as a WHO able to effectively halt disease outbreaks before they turn into pandemics would need far-reaching emergency powers with enforcement capacities. In such a scenario, the WHO would be entrusted with widespread monitoring capacities and direct access to domestic reporting schemes in circumvention of national governments. Moreover, the WHO alone would have the power to decide on local, regional, or national-level lockdowns and it would have the means at its disposal to sanction non-compliance.

From a constitutionalist perspective, this is a dystopic scenario. In the current situation, (mostly) democratically elected governments impose de facto states of exception that curb civil liberties. In the scenario, a democratically unaccountable supranational expert body would take such drastic measures with immense distributional consequences. While it might be the only way to prevent the worst-case pandemic and it might save lives and liberty in those societies that are spared as a consequence, it would also mean acquiescence to a quasi-dictatorial regime of global health security that is hardly amenable to constitutional containment and democratic control.

The less it is shielded from political contestation, the greater is the risk of distorting the scientific approach to disease containment, as powerful state and private interests would aim to influence WHO decision-making. The organization’s response during the coronavirus crisis as well as previous episodes such as the ‘swine flu’ pandemic highlight that it is not immune to state or corporate capture, which quashes the whole purpose of delegating authority to a supranational agent in the first place. On the other hand, the more it is shielded from political contestation, the less it will be possible to hold the WHO to account to constitutional principles.

This is the dilemma of global health security: Having it and not having it both come at extremely high costs.

SUGGESTED CITATION  Kreuder-Sonnen, Christian: The WHO After Corona: Discretionary Powers for the Next Pandemic?, VerfBlog, 2020/3/27, https://verfassungsblog.de/the-who-after-corona-discretionary-powers-for-the-next-pandemic/, DOI: 10.17176/20200328-002958-0.

One Comment

  1. Hans Leander Mo 6 Apr 2020 at 23:02 - Reply

    Thanks for the article. Don’t you think a federalist model on the global scale is the way forward? Are you aware of the UNPA-campaign? An initiative that could pave the way towards a World Parliament under which the WHO would get a legitimate mandate. A long-term project, of course, but we really need such a structure in order to deal with global threats, not only pandemics.

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Explore posts related to this:
Coronavirus, Global Health, World Health Organization (WHO), emergency powers

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Explore posts related to this:
Coronavirus, Global Health, World Health Organization (WHO), emergency powers

Other posts about this region:
China, West Africa
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