The World Health Organization as pandemic police?

Rarely is the head of an international organisation, let alone one with a technical mandate, prominent in the world’s media.

Yet since January 2020, we’ve been regularly briefed on the spread of COVID-19 by the Director-General of the World Health Organization (WHO) – Dr Tedros Adhanom Ghebreyesus.

On the one hand, there’s been praise for the Director-General’s handling of the pandemic (including from Lady Gaga); on the other hand, he has faced criticism for being ‘too close’ to China and failing to respond quickly enough to the spread of the virus.

President Donald Trump – one of the organisation’s chief critics – has even gone so far as to announce the US will cease funding the agency.

In response to these criticisms, Australian Prime Minister Scott Morrison has suggested a three-point reform plan.

One element of this plan has been realised with the adoption of a World Health Assembly resolution co-sponsored by Australia.

The resolution requests that the WHO continue its collaborative work in identifying the zoonotic source of the virus and calls for “an impartial, independent and comprehensive evaluation” of the WHO-coordinated response to COVID-19.

The Prime Minister also suggested that the WHO should be armed with the powers of weapons inspectors – that is, the ability to enter a country and examine how and why there has been a disease outbreak.

But the idea that the WHO could become the ‘policeman of global health’ has been described as a ‘dream’ by its former Legal Counsel, Gian Luca Burci.

How does Prime Minister Morrison’s suggestion sit with the WHO’s existing structure and the powers of other international organisations? Could – and should – this ‘dream’ become a reality?

International organisations and in-country investigations

International organisations are the creations of their member states.

They may be given significant powers (for example, the UN Security Council’s ability to authorise the use of military force under the UN Charter), or the capacity to make recommendations – one of the powers conferred on the WHO in the 2005 International Health Regulations (IHR).

Some organisations lack the power to name-and-shame states; the ASEAN Intergovernmental Commission on Human Rights’ inability to publicly call out Myanmar for its treatment of the Rohingya people can be put in this category.

States’ desire to retain their sovereignty is a strong counterweight to any perceived benefit of providing international organisations with coercive powers.

Few international organisations have the power to unilaterally enter a state to undertake an investigation, though some personnel in the UN human rights system can request a state visit to assess compliance.

While standing invitations have been issued by many UN members to these human rights experts, enabling them to undertake in-country investigations, states must agree to this process.

Even in the highly developed European system of human rights, there is only one treaty – the European Torture Convention – which mandates that states ‘shall permit’ visits by a committee of independent experts.

If the powers of weapons inspectors are the Prime Minister’s favoured model, examples can be found in the bodies governing weapons of mass destruction.

The International Atomic Energy Agency, through a complex and highly regulated process, has the power to undertake ad hoc and routine on-site inspections of facilities where states store nuclear material.

The Organisation for the Prohibition of Chemical Weapons can also perform routine or short notice ‘challenge’ inspections of a state’s chemical facilities under the Chemical Weapons Convention.

But agreement is not always forthcoming.

The Biological Weapons Convention has never been subject to the same level of enforcement. In 2001 the US rejected an attempt to give an international body the capacity to conduct inspections of state facilities for biological agents and toxins for hostile uses.

Perhaps the most well-known inspections were those carried out by the UN Monitoring, Verification and Inspection Commission and its predecessor, the UN Special Commission, in Iraq prior to the 2003 Gulf War.

The process for monitoring and the destruction of biological and chemical weapons was mandated by binding UN Security Council resolutions that were adopted following Iraq’s invasion of Kuwait.

Interestingly, the WHO had a role in this process and the organisation participates in other activities designed to prevent the hostile use of chemical and biological agents.

Expanding the WHO’s powers?

While the prospect of investing the WHO with equivalent powers in the case of a disease outbreak may be tantalising, there are problems.

First, the WHO is designed to promote global cooperation on “the highest attainable standard of health” and plays a major role in disease prevention and control in developed and developing countries.

While the World Health Assembly supports a review of the role of the IHR, mandatory investigatory powers are a step up, and a step away, from the WHO’s current way of operating.

Second, what would these ‘pandemic police’ look like? What in-country investigative powers would the WHO possess? Would visits be mandatory? Who would participate in such investigations? What places would the WHO inspect?

Third, weapons inspectors gain their powers from treaties that deal with weapons of mass destruction. These weapons are regarded as threats to international peace and security.

The WHO Constitution recognises that “the health of all peoples is fundamental to the attainment of peace and security”.

Human security, involving freedom from disease and hunger as well as the absence of armed conflict, is an important concept, but this is not the same as labelling a disease outbreak as a threat to international peace and security.

The Security Council has only made such a determination once – in relation to the Ebola outbreak in West Africa in 2014 – but three of the states affected by Ebola had recently emerged from conflicts.

While there is no doubting the tremendous upheaval caused by the pandemic and its potential to exacerbate existing tensions, the Security Council has not resolved that it constitutes a threat to international peace and security and is unlikely to do so given the threat of a veto by one or more of the five permanent members.

It must also be asked whether such a label would assist in dealing with the crisis caused by the pandemic.

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