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The WHO in the Age of the Coronavirus

Published online by Cambridge University Press:  20 October 2020

José E. Alvarez
José E. Alvarez*
Affiliation:
Board of Editors. The author acknowledges, with gratitude, comments received from Gian Luca Burci.
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Abstract

The responses of states and the WHO to the COVID-19 pandemic reveal the considerable weaknesses of international organizations. Although the Trump administration has misdiagnosed the WHO's ills, the WHO has indeed failed to meet the public health threat posed by the coronavirus. The WHO's responses to the current crisis demonstrate that it shares five disorders common to other UN system expert-driven organizations: overdependence on states; singular reliance on “managerial” approaches to enforcement; inflexible emergency declarations; absence of regularized systems for inter-regime collaboration; and common bureaucratic pathologies.

Type
The International Legal Order and the Global Pandemic
Information
American Journal of International Law , Volume 114 , Issue 4 , October 2020 , pp. 578 - 587
Copyright
Copyright © 2020 by The American Society of International Law

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References

1 Constitution of the World Health Organization, pmbl., paras. 4–5, July 22, 1946, 14 UNTS 85, available at https://www.who.int/governance/eb/who_constitution_en.pdf [hereinafter WHO Constitution].

2 Id., para. 3.

3 Id., paras. 1, 7.

4 See, e.g., Lawrence O. Gostin, Global Health Law 91 (2014) (quoting Parran and Boudreau writing in 1946).

5 WHO Constitution, supra note 1, pmbl., paras. 3–4. See generally Jan Hoffman & Ruth Maclean, Slowing the Coronavirus Is Speeding the Spread of Other Diseases, N.Y. Times (June 14, 2020), at https://www.nytimes.com/2020/06/14/health/coronavirus-vaccines-measles.html.

6 WHO Constitution, supra note 1, pmbl., paras. 2, 9. Thereby anticipating by many decades the underlying premise of the “Responsibility to Protect.”

7 See, e.g., World Health Organization, International Health Regulations, Annex 2 (2d ed. 2005), available at https://apps.who.int/iris/bitstream/handle/10665/43883/9789241580410_eng.pdf;jsessionid=CC9E275024FCDEAC2C0BE4EDB57B340F?sequence=1 [hereinafter IHR].

8 Id. Arts. 9.1, 10.

9 Id., Annex 1.

10 See, e.g., Gian Luca Burci, The Legal Response to Pandemics, J. Int'l Hum. L. Stud. 1, 8–9 (2020).

11 See generally Armin von Bogdandy & Pedro A. Villarreal, International Law on Pandemic Response: A First Stocktaking in Light of the Coronavirus Crisis (MPIL Research Paper Series, No. 2020-07) (available on SSRN). The WHO's inconsistent positions include its praise for the governments of China and Italy for their collective quarantines even while their standard recommendations anticipated only individual quarantines and isolation. Id. at 20.

12 How WHO Lost Its Way, Wall St. J. (May 15, 2020), at https://www.wsj.com/articles/how-who-lost-its-way-11589583282.

13 Id.

14 Taylor, Allyn L. & Habibi, Roojin, The Collapse of Global Cooperation Under the WHO International Health Regulations at the Outset of COVID-19, 24 ASIL Insights 15 (June 5, 2020)Google Scholar.

15 See, e.g., Secretary Alex M. Azar Plenary Remarks at World Health Assembly (May, 18, 2020), at https://www.hhs.gov/about/leadership/secretary/speeches/2020-speeches/secretary-azar-plenary-remarks-at-world-health-assembly.html.

16 See, e.g., Rebecca Falconer, PM Calls in Military After Coronavirus Returns to New Zealand, Axios (June 18, 2020), at https://www.axios.com/new-zealand-military-quarantine-border-f4ef1b4e-7019-4433-91fc-9c063ed2b0ae.html.

17 See, e.g., Samantha Power, This Won't End for Anyone Until It Ends for Everyone, N.Y. Times (Apr. 7, 2020), at https://www.nytimes.com/2020/04/07/opinion/coronavirus-united-states-leadership.html.

18 World Health Organization, R&D Blueprint and COVID-19, at https://www.who.int/teams/blueprint/covid-19.

19 World Health Organization, A Coordinated Global Research Roadmap: 2019 Novel Coronavirus, 8, 36, 56 (Mar. 2020), at https://www.who.int/blueprint/priority-diseases/key-action/Coronavirus_Roadmap_V9.pdf?ua=1 [henceforth Roadmap].

20 Id. at 10, 54.

21 Id. at 8.

22 See, e.g., José E. Alvarez, The Impact of International Organizations on International Law 226–30 (2017).

23 See, e.g., Kickbusch, IIona, Hein, Wolfgang & Silberschmidt, Gaudenz, Addressing Global Health Governance Challenges Through a New Mechanism: The Proposal for a Committee C of the World Health Assembly, 38 J. L. Med. & Eth. 550 (2010)Google ScholarPubMed.

24 See, e.g., Gian Luca Burci, The Outbreak of COVID-19 Coronavirus: Are the International Health Regulations Fit for Purpose? EJIL:Talk! (Feb. 27, 2020), at https://www.ejiltalk.org/the-outbreak-of-covid-19-coronavirus-are-the-international-health-regulations-fit-for-purpose (noting that despite their formally binding nature, the IHR's lack of compliance monitoring has led critics to question their binding nature). ICAO members are only obligated to report deviations from SARPs. Convention on International Civil Aviation (Chicago Convention), Art. 38, Dec. 7, 1944, 15 UNTS 295. As with the IHR, there is no formal mechanism for accountability in ICAO.

25 See, e.g., Alvarez, supra note 22, at 256.

26 Challenges to some of these state measures are likely in human rights forums, including national courts, UN human rights treaty bodies, and regional human rights courts; they may also arise before the WTO or in investor-state arbitrations. Such challenges may not address issues under global health law as such.

27 Burci, supra note 24.

28 See, e.g., Alvarez, supra note 22, at 226–27 (discussing the low rates of compliance with the IHR's requirements for core capacities). See also Taylor & Habibi, supra note 14 (noting that the WHO's biennial budget for its regular budget (just below $5 billion) is approximately half of the annual budget of the U.S. Centers for Disease Control and Prevention).

29 See, e.g., WHO, Report of the Ebola Interim Assessment Panel, at 6 (2015), at https://www.who.int/csr/resources/publications/ebola/ebola-panel-report/en [henceforth Panel Report]; see also Burci, supra note 10, at 9–10.

30 See, e.g., Von Bogdandy & Villarreal, supra note 11.

31 Int'l L. Comm'n, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, 253, UN Doc. A/CN.4/L.682 (Apr. 13, 2006).

32 See generally Mark Eccleston-Turner, Scarlett McArdle & Ross Upshur, Inter-Institutional Relationships in Global Health: Regulating Coordination and Ensuring Accountability, XII Glob. Health Governance 83 (2018).

33 The IHR state that they are to be “interpreted so as to be compatible” with states’ other international obligations and that they “shall not affect” those other rights and obligations. IHR, supra note 7, Art. 57(1).

34 See, e.g., Lee, Jaemin, IHR 2005 in the Coronavirus Pandemic: A Need for a New Instrument to Overcome Fragmentation?, 24 ASIL Insights (June 12, 2020)Google Scholar.

35 These might have anticipated and corrected the many flaws, for example, in the UN's Ebola response in West Africa (UN Mission for Ebola Emergency Response (UNMEER)). See, e.g., Adam Kamradt-Scott, Sophie Harman & Frank L. Smith III, Saving Lives: The Civil-Military Response to the 2014 Ebola Outbreak in West Africa (Final Report) (U. of Sydney Rep. Oct. 2015), available at https://www.researchgate.net/publication/283225441_Saving_Lives_The_Civil-Military_Response_to_the_2014_Ebola_outbreak_in_West_Africa_Final_Report.

36 See, e.g., Galit A. Sarfaty, Why Culture Matters in International Institutions: The Marginality of Human Rights at the World Bank, 103 AJIL 647 (2009).

37 See, e.g., Peter Tzeng, Taking China to the International Court of Justice over COVID-19, EJIL:Talk! (Apr. 2, 2020), at https://www.ejiltalk.org/taking-china-to-the-international-court-of-justice-over-covid-19; Robert D. Williams & David Dollar, Don't Count on Suing China for Coronavirus Compensation, Brookings Podcast (May 18, 2020), at https://www.brookings.edu/podcast-episode/dont-count-on-suing-china-for-coronavirus-compensation.

38 The era of absolute state and IO immunity is long since passed. See, e.g. Jam v. Int'l Fin. Corp, 139 S. Ct. 759 (2019).

39 Roadmap, supra note 19, at 61.

40 See, e.g., Patricia Mazzei, Florida's Coronavirus Spike Is Ravaging Migrant Farmworkers, N.Y. Times (June 18, 2020), at https://www.nytimes.com/2020/06/18/us/florida-coronavirus-immokalee-farmworkers.html.

41 See, e.g., Apoorva Mandavilli, The Coronavirus Can Be Airborne Indoors, W.H.O. Says, NY Times (July 9, 2020, updated), at https://www.nytimes.com/2020/07/09/health/virus-aerosols-who.html (reporting criticisms of the WHO's delayed response to the risks of airborne spread).

42 See Panel Report, supra note 29.

43 See, e.g., Barnett, Michael N. & Finnemore, Martha, The Politics, Power and Pathologies of International Organizations, 53 Int'l. Org. 699, 715–25 (1999)CrossRefGoogle Scholar.

44 Roadmap, supra note 19, at 30 (noting that while airport screenings were reasonably effective with respect to H1N1, they have detected only 46% of COVID-19 infected travelers who remain infectious). The WHO reluctantly modified, but only slightly, its recommendation against travel bans. See WHO Press Release, Updated WHO Recommendations for International Traffic in Relation to COVID-19 Outbreak (Feb. 29, 2020), at https://www.who.int/news-room/articles-detail/updated-who-recommendations-for-international-traffic-in-relation-to-covid-19-outbreak (reiterating prior advice that restricting the movement of people is “ineffective in most situations” but acknowledging that “in certain circumstances … [it] may prove to temporarily useful” and “may allow countries to gain time …”).