The Collapse of Global Cooperation under the WHO International Health Regulations at the Outset of COVID-19: Sculpting the Future of Global Health Governance

I. Introduction

In April 2020, the United States (U.S.) became the new epicenter of the COVID-19 pandemic, now surpassing over 1 million cases domestically. Despite praising the World Health Organization (WHO) for "working hard and very smart" in February, President Donald Trump has since changed his position, alleging that the WHO "severely mismanage[ed] and cover[ed] up" the spread of coronavirus and engaged in the spread of misinformation, and ordered his Administration to halt funding to the Organization and conduct an investigation of its performance.[1] U.S. hostility towards the WHO escalated throughout the month of May, starting with the Trump Administration blocking a Security Council Resolution on global cease fire after China pushed for the resolution to mention the WHO.[2] President Trump's rebuke of the Organization came to a head on the eve of the abbreviated annual World Health Assembly, in a letter he posted on Twitter which threatened to withdraw the U.S. from the WHO and permanently end funding for the Organization unless it "committed to substantial improvements in the next 30 days."[3] Eleven days later, the President announced in a press conference that he would terminate U.S. membership in the WHO and divert U.S. funding from the Organization to other health agencies. [4]

Notwithstanding the President's announcement, he does not have the legal authority to immediately withdraw the U.S. from the WHO and in the process discard U.S. financial obligations to the WHO. In the 1948 Joint Resolution providing for U.S. membership in the WHO, Congress specifically reserved the right to withdraw the U.S. from the Organization subject to a one-year notice, and on condition "that the financial obligations of the United States to the Organization shall be met in full for the Organization's current fiscal year."[5] In addition to domestic legal constraints on immediate withdrawal, there are also international legal limitations: on July 2, 1948, the World Health Assembly unanimously recognized the ratification of the U.S. specifically subject to the withdrawal provisions of the Joint Resolution.[6]

President Trump's announced goal to withdraw from and defund the core international health agency in the midst of the pandemic drew heavy criticism by the international community. What is widely acknowledged among the WHO member states, however, is the need for an "impartial, independent and comprehensive evaluation" of the global response to the pandemic "at the earliest appropriate moment."[7] Indeed, the WHO has itself identified the need for an independent review once the crisis subsides.[8]

There is broad consensus that now is the time for action and solidarity—not inquisition and inquiry. Since the entry into force of the International Health Regulations (IHR) in 2007—the international legal instrument that governs the global response to public health threats with potential for international spread—the world has faced six public health emergencies of international concern (PHEICs), including the ongoing COVID-19 pandemic. With each outbreak, the WHO has faced novel challenges, and the IHR have built-in mechanisms for post-crisis reviews of performance to hone future responses to public health emergencies. 

Nevertheless, perennial issues including both hindrances in governance and financing, surface time and again after each outbreak review. This commentary explores the merits of calls for inquiry by countries and unpacks their underlying legal and governance issues.

II. Normative Power & Political Consensus: WHO's Dilemma

Guided by the ideal of the right to health, the WHO has the constitutional directive to act as the "directing and co-ordinating authority on international health work" and has wide-ranging responsibilities to address global public health concerns, including spearheading global efforts against infectious diseases.[9] The WHO Constitution (Constitution) entrusts considerable normative powers to the organization under Articles 21 and 22, including a sparingly-used power to negotiate regulations that become automatically binding on state parties after due notice has been given of their adoption at the annual World Health Assembly, except for those states that notify the WHO Director-General of any reservation or rejection within a specified period.  

However, the WHO's governance structure circumscribes its decision-making authority.[10] The 194-member state plenary body, the World Health Assembly, among other functions decides on policies and approves the Organization's budget, usually by consensus. The 34-member Executive Board is mandated to give effect to the decisions and policies of the World Health Assembly and drafts of the agenda of its meetings according to procedural rules. The Secretariat is led by a Director-General, who is the WHO's chief technical officer.

The WHO has struggled to strike the fine balance between serving simultaneously as the world's pre-eminent public health authority and the forum for intergovernmental global health negotiations.[11] Founded in 1948, the Organization was seen for much of its history primarily as a medical-technical agency, and it resisted serving as a center for negotiation and codification,[12] only adopting its first treaty in 2003. The WHO's biennial budget rests just below $5 billion—approximately half that of the U.S. Centers for Disease Control and Prevention (CDC)'s annual budget. Voluntary contributions, which constitute three quarters of this funding, are often ear-marked according to donor priorities.

In the absence of financial clout to independently set and implement its own global health priorities, the WHO exercises caution in criticizing or judging member states and is reliant upon their goodwill. Yet goodwill may not be enough in a landscape of proliferating public, private, and mixed actors and institutions, all vying for funding and influence in global health security.[13] Since the WHO is not legally mandated to govern or listen to nonstate actors, its coordinating role is hindered. 

These shortcomings are reflected in the IHR, the normative instrument of which the WHO is custodian. Stretching back to the 19th century, the control of virulent infectious diseases is one of the earliest areas of multilateral cooperation and the WHO, upon its founding in 1948, inherited the responsibility for the management of the international legal regime. First adopted by the World Health Assembly in 1951, the IHR are designed to provide an effective framework for addressing the international spread of disease, while ensuring minimum interference with world traffic.

After a decade-long negotiating effort, the World Health Assembly adopted a major revision of the IHR in 2005. The revision was intended to incorporate modern epidemiological principles and establish and improve the global capacity to prevent, detect, and respond to infectious disease threats. Under the revised IHR, states are required to significantly strengthen their national surveillance, reporting, and response mechanisms for disease outbreaks, with the WHO serving as the central coordinating institution for global surveillance, risk assessment, and international communication.

The normative impact of the IHR is circumscribed, however, by a general absence of effective compliance and monitoring provisions, reflecting state party concerns with maintaining sovereignty on politically sensitive matters arising within their border. Trump's criticism of the WHO's performance overlooks, for instance, that the Organization does not have the authority to initiate an independent investigation of an outbreak on a state party's territory, relying instead upon the state's invitation to do so. Despite the G20 leaders' recent commitment to support the "full implementation" of the IHR, and mount a response "that avoids unnecessary interference with international traffic and trade,"[14] it is widely observed that states struggled to uphold many of the legally binding commitments contained in the IHR both before and during the COVID-19 pandemic, including: the obligation to notify the WHO in a timely manner of the first cluster of cases, collaborate and assist in strengthening national public health systems, and avoid unnecessary interference with international traffic and trade in the face of the public health risk. [15] The Organization and the IHR have been effectively marginalized in the most significant public health crisis in the last century as nations institute unilateral decisions based upon nationalism and sovereignty – not international law.

III. The Path Less Traveled: Joint Programme on Global Health Emergencies

As the COVID-19 pandemic rages on, the WHO has been caught at the center of a geo-political maelstrom. The outcome of the pandemic and political evaluations of the WHO's performance in implementing the IHR and orchestrating the global response will sculpt the future of global health governance and the role that the WHO may continue to play in it. 

Early views vary considerably. On the one hand, the WHO has been the subject of deep criticism for its failure to exercise global health leadership. Critics contend that the WHO lacks the political authority to challenge states and that the geo-political politicization of COVID-19 bodes poorly for a future in which the WHO is at the helm of global health governance.[16] Indeed, some Trump administration officials and scholars have suggested that the WHO is not up to the task of leading the global response to infectious diseases and should be sidestepped in favor of the development of a new global health security organization.[17] On the other hand, champions of the Organization emphasize that the WHO is serving an essential and underappreciated technical and operational role in global pandemic response through scientific expertise, outbreak response capacities, and coordination of global networks. According to this view, the challenges that the WHO has encountered in exercising leadership in the pandemic are a direct outcome of the limited authority states have delegated to it in the IHR, and the solution rests upon reforming the international agreement to reinforce provisions on pandemic preparedness and response, as well as accountability mechanisms.

Crisis is the biggest stimulus for change in international organizations, and the COVID-19 disaster has illuminated global health as a core issue in the U.N. system. Consequently, between these two polar opposite positions, now may be the time rethink the future of infectious disease governance in a manner that preserves the vital functions of the WHO in pandemic preparedness and response, but also addresses the need for a coordinated international response from relevant organizations within and outside the U.N. system. In its most recent statement, leaders of the G20 have in fact called on the WHO to "assess gaps in pandemic preparedness" and look towards establishing a new "global initiative on pandemic preparedness and response."

Global success against COVID-19 and future disease outbreaks mandates the establishment of a framework in which the WHO continues to serve the central role envisaged by parties to the IHR  in using its scientific, medical and public health capabilities, as well as its normative role, to effectively assist states to prevent, detect, and respond to disease outbreaks. However, the WHO has neither the legal and political authority nor the technical capacity to address economic, social, and health consequences of devastating global pandemics alone. COVID-19 poses severe risks to all countries, particularly low-income states whose health systems and national economies are ill-prepared to withstand the shock of pandemics. It also poses particular risks to population groups, including older persons, prisoners, migrants, refugees, and displaced persons. The fight against COVID-19 or another major pandemic in the future requires wide-scale and multisectoral coordination to: enhance manufacturing and equitable global sharing of necessary equipment, therapeutics, and vaccines; institute targeted fiscal measures and loans to protect the global market and national economies, businesses, and workers; protect the human rights and humanitarian needs of the most vulnerable populations; and address disruption in international trade and travel, including dispute resolution. Overall, an effective pandemic response requires the WHO to undertake multisectoral collaboration with a range of agencies each working within their own mandate, including, among others, the International Monetary Fund, World Bank, International Organization for Migration, Food and Agriculture Organization, World Trade Organization, International Labour Organization, United Nations High Commissioner for Refugees, Office of the High Commissioner for Human Rights (OHCHR), Global Alliance for Vaccines and Immunization, United Nations Entity for Gender Equality and the Empowerment of Women (UN Women), and the World Food Programme.

The AIDS pandemic served as an early and powerful lesson on the need for a large-scale and internationally coordinated response to emerging threats to public health from infectious disease and exposed the limitations of traditional models of governance in international organizations. One important reference point to consider for the development of effective coordinating mechanism for infectious disease governance is the Joint United Nations Programme on HIV and AIDS (UNAIDS, or the Joint Programme). Although not immune to criticism, the Joint Programme's performance and interagency collaboration is widely credited for an extraordinary contribution in putting AIDS on the global political agenda, and raising unparalleled awareness, financial resources, and institutional response. The inclusive governing body of UNAIDS, consisting of and leveraging the expertise of ten co-sponsoring agencies and five NGOs as well as 22 geographically diverse member states, provides an innovative model for the collaborative governance needed to address the wide-ranging economic, social, and health consequences of major global disease outbreaks. Although it is beyond the scope of this Insight to consider the details of such a new institutional framework in detail, the potential benefits of a collaborative program are manifest. It could, among other things, provide global leadership to achieve and promote global consensus on policy and program approaches, strengthen the capacity of states to undertake appropriate and effective disease outbreak management strategies, and secure broad-based political and social mobilization for greater political and financial commitment to infectious disease control at the global and country levels. 

Importantly, under the umbrella of a broader and more inclusive infectious disease program, the WHO's policymaking under the IHR may achieve more political insulation than the current "go it alone" approach. As in the case of AIDS, an innovative, inclusive, and robustly-funded organization specifically designed to provide leadership on global policy and ensure coherence and coordination across the U.N. system is deeply needed to orchestrate an effective response to rapidly-growing infectious disease epidemics whose ramifications extend to all pockets of global society. The breakdown of global cooperation and the marginalization of the WHO and the IHR at the early stages of COVID-19 evidences that the time is ripe to rethink the legal framework and the governance structure for infectious diseases to protect global public health in future pandemics.

About the Authors

Allyn L. Taylor is an Affiliate Professor of Law at the University of Washington School of Law, Seattle. She is a former legal adviser at the World Health Organization. 

Roojin Habibi is an international consultant, lawyer specialized in global health law, and research fellow at the Global Strategy Lab, at York University in Toronto, Canada. 

The views expressed herein are those of the authors alone.