This article is part of the series Governance, in crisis.
Synopsis: This post evaluates the possible ways to evaluate the performance of the World Health Organisation (WHO) and seek accountability for its response to the COVID-19 pandemic.
Keywords: COVID-19, pandemic, governance, World Health Organisation (WHO), review, accountability
Our first two contributions (see here and here) assessed the role played by the World Health Organisation (WHO) in responding to the COVID-19 pandemic as well as the slow decay of global governance and international cooperation exemplified by the present crisis.
The rapid spread and relatively high death rate of the virus is likely explained by a combination of unfortunate sequences and events, along with States’ political influence and indifference at the beginning of the pandemic and, more fundamentally, lack of political cooperation.
A preliminary assessment of the WHO’s response to the COVID-19 crisis highlights certain substantive areas that could be the focus of an independent assessment of the WHO’s work. With political pressure rather than cooperation being the norm, the WHO has made mistakes, and responded unsatisfactorily to the pandemic, offering impetuous advice on travel bans, border closures, and discarding the use of face masks in the early stages. However, the Organisation subsequently shifted gears and currently seems to be coordinating the international response.
As Aristotle once said, “criticism is something we can avoid easily by saying nothing, doing nothing, and being nothing”. Rather than looking backwards, this post seeks to undertake a tour d’horizon of some possible procedural forms of review. The point of a review could be to provide for accountability, (merely) improve functional efficiency, or avoid or at least mitigate future health emergencies. Whatever its justification, the raison d’être of review is to avoid making the same mistakes, or to get ‘fooled’ by stakeholders. To that extent this post will analyse the potential of external, internal, and peer-led review of the WHO.
The functioning of the WHO could potentially be reviewed by national courts or agencies, or by an international court/tribunal.
The former review seems improbable in the face of the case law surrounding immunities of international organisations in general (notwithstanding Waite and Kennedy v Germany), and the immunity of WHO from domestic jurisdiction under the WHO Constitution and the UN Convention on Privileges and Immunities of the Specialized Agencies. The decision of the US Supreme Court in Jam v International Finance Corporation has opened up the possibility of interpreting the immunity of international organisations to be restrictive in nature. However, the response of the WHO to COVID-19 may not qualify as a commercial activity exception as required under restrictive immunity. Formalised State review seems politically unlikely, even in the absence of abovementioned jurisdictional hurdles. After all, it was the WHO’s Member States that reclaimed control/sovereignty from a functionalist WHO through the 2005 International Health Regulations (IHR), undercutting its response speed as presently evident. Moreover, the acts and omissions of most Member States in preventing and containing the pandemic only makes external review more improbable (ex iniuria (ius) non oritur).
Similarly, unlike the adjudication of contractual disputes, like in the Bustani case by the International Labour Organisation’s Administrative Tribunal, non-contractual claims for liability against the WHO are not within the purview of any international tribunal. Dispute resolution of contractual claims is a rare exception to the inexistence of inter-institutional review. Therefore, while review by independent courts remains the most effective form of review, the likelihood of such review is inversely proportionate to its efficacy.
Second, the WHO could (and should) review its own (in)actions. In the past, the WHO has conducted such assessments. For example, the H1N1 Review Committee, formed in direct reaction to investigation by the European Parliamentary Assembly (EPA) (see below), noted an overly broad definition of ‘pandemic’, the confidential nature of the Emergency Committee members, and the “[l]ack of a sufficiently robust, systematic and open set of procedures for disclosing, recognizing and managing conflicts of interest among expert advisers” as issues that may have led to a response motivated by extraneous factors.
Recently, the WHO Director-General assured internal review at the appropriate juncture. Subsequently, the 73rd World Health Assembly directed the initiation of “impartial, independent and comprehensive evaluation” to, inter alia, review the WHO’s actions including response time, the lessons learnt, and consequences upon the overall efforts of the UN. On 9 July, the Director-General, noting the spread of the pandemic as a “time for self-reflection”, announced the setting-up of an Independent Panel for Pandemic Preparedness and Response (IPPR). The Panel is slated to present its interim report in November 2020.
The institution of internal review processes and the WHO’s response to previous pandemics indicates that such review is more promising than external review. Conducting an in-depth assessment will only benefit the WHO’s (objective/scientific) reputation and future credibility. Additionally, this form of review has strong political backing with Emergency Committees (cfr. Article 48 IHR) and Review Committees being accountable to representatives of Member States. Further, an internal review, while not leading to conventional legal accountability, has the potential of compelling fiscal response by Member States motivating future efficacy.
A negative spill-over effect of Member State-backed internal review is that it will necessarily be limited and may not ensure compliance in the absence of deterrence. The IHR Review Committee after the H1N1 pandemic already noted the lack of enforceable sanctions except shaming States adopting excessive measures. The 2015 Ebola Interim Assessment Panel’s dream of ‘shared sovereignty’ for interpreting the IHR was also quickly crushed by the Final Report of the Review Committee. The Report of the IPPR may be similarly limited, but the Panel may still make some concessions to appease its main funder, the United States.
Third, the WHO’s responses could be reviewed horizontally, i.e. by other international organisations (formal peer review), by international NGOs or other investigative actors, such as journalists (informal independent review), or by both (sanctifying independent investigations through a formal forum). Investigative journalism – whether by journalists, scientists or scholars – as a form of informal review is gaining momentum, especially in an area like global health (see e.g. H1N1 Pandemic). For instance, the British governmental, and in parallel, the WHO response, pivoted with an Imperial College study. Informal review has in the past also helped highlight excesses by international organisations, like the UN’s mishandling of the cholera outbreak in Haiti. The sustained pressure by journalists, NGOs, and independent UN experts increasingly damaged the UN’s reputation as noted by former Secretary General Ban Ki-moon. Whereas the UN’s continued inactions also signal the limits of reputational accountability in the absence of legal accountability, it signifies how reputational damage can prompt improved future conduct.
The most relevant investigation of the WHO’s ‘grave shortcomings’ came with the 2010 EPA Resolution and Recommendation (the legislative arm of the Council of Europe), assessing the WHO’s responses to the H1N1 pandemic. It highlighted severe shortcomings in the latter’s transparency and accountability procedures, most notably its dependence on pharmaceutical companies (corporate capture). Such dependence proved costly to governments, with the pharmaceutical sector allegedly fuelling vaccine demand, despite the relatively low death rate from H1N1 compared to the seasonal flu.
However, barring the above instances, peer review is almost unprecedented, especially outside the UN umbrella. Abigail Deshman identifies sovereignty/jurisdiction (or relatedly the principle of speciality of international organisations), the lack of universal global administrative law standards, financial dependence on States, and inherent structural obstacles as the main hurdles affecting horizontal review. Such review is more likely when international organisations have a different institutional structure, whether by distinctive membership or distribution of power, and especially when they have a different conception of ‘accountability’. The EPA consists of States’ Members of Parliament, whereas the WHO answers to the States’ executive branches (traditionally responsible for foreign affairs). Yet, African States have raised their voice within the WHO, mainly in the context of the accessibility of the COVID-19 vaccine to developing States, whilst raising similar concerns in the World Trade Organisation and World Intellectual Property Organisation.
European (Union) institutions may also potentially review the WHO response to COVID-19. These could be, like in the context of H1N1, the European Parliament (which conducted a review parallel to the EPA’s but with a more specific subject-matter), or even the European Commission. Possibility of a review has only increased since the Commission, comprising of independent commissioners, has adopted an enormous COVID-19 recovery package and is taking a more central role on the world stage. On the flip side, health policy remains within the jurisdiction of individual Member States, and therefore the EU may limit its review to its own competences, such as financial responses to the health emergency.
Unlike unilateral disengagement, independent review results in the establishment of crucial facts to methodically adjudicate organisational behaviour and provide evidence to attach accountability upon an international organisation. Resultantly, review provides fertile ground for sowing the seeds of improved institutional functioning in the future. Moreover, it allows Member States to collectively evaluate the WHO Secretariat’s functioning and direct fiscal accountability by reassessing their financial contributions.
The proliferation of global governance, as a set of norms by diverse international actors, from formal international organisations, to club-like institutions, public-private actors and private organisations, requires strengthening transparency and accountability mechanisms to avert capture by vested interests. At least, it has a variety of tools to do so.
Note: The views expressed in this post are solely those of the authors. They do not necessarily reflect the views of any institution with which they are or have been affiliated. Nor do they necessarily reflect the views of any of their current or former clients.
Image credit: UN Photo / Loey Felipe