Hands Tied? The Law Governing the World Health Organization

Abstract

Over recent years, many have called the WHO responsible for a number of failures in global health governance, in particular those concerning late or insufficient response to the spread of infectious diseases such as swine flu, Ebola or Covid-19. The present contribution therefore examines some of the main features of the law governing the WHO, in order to establish the scope of the organisation’s powers to act and the legal regime applicable in case of its failure to act. The analysis aims to show that the law constituting and empowering the WHO has not been the primary cause for the organisation’s conservative stance towards a more proactive, normative, inclusive and inter-sectoral governance. Thereby, the analysis also challenges the common assumption in international institutional law that the law that constitutes an international organisation at the same time also constrains it, and identifies some legal gaps in the relevant legal field. In particular, it demonstrates that this common approach is insufficient for establishing the organisation’s legal responsibility in case of its failure to act and, more generally, for pushing the organisation and its leadership towards a more effective and accountable functioning.

Keywords: World Health Organisation (WHO), infectious diseases, global health governance, legal capacity, privileges and immunities, responsibility, WHO powers, WHO obligations