Who Listens to the World Health Organization (WHO)?
With the ambitious mandate to achieve “the highest possible level of health” for all peoples, the WHO has been thought of as a strong authority with “formidable,” “extraordinary” normative powers. Highly visible during the COVID-19 crisis, the WHO has left an indelible mark because of the strong media presence of its director-general, Tedros Ghebreyesus, and the proliferation of norms (recommendations, guidelines, etc.) it has issued to deal with the situation — including over 400 guidance documents in the first six months of 2020. Although it enjoys a prime position as the only international intergovernmental organization exclusively dedicated to health, some heads of state of member states did not hesitate to oppose its recommendations or even to discredit the organization. Conversely, others have expressed their adherence or attachment to the WHO.
Why are there such differences in the behavior of states in relation to WHO norms? Why are some WHO norms not being followed by member states? What is the “normative footprint” of the WHO? All these questions are at the heart of an ongoing research project carried out by a team at the University of Montreal in Canada, in collaboration with researchers from eight countries, including those from the O’Neill Institute. Aimed at analyzing WHO normative leadership — that is, the capacity for the WHO to adopt and deploy norms, as well as influence state actions — this research project seeks to understand how and when WHO norms are adopted by different countries to guide their health policy efforts. This is an important quest, since international norms need to be implemented at the domestic level to have their full impact, considering that states remain sovereign entities. To this end, the project first developed a theoretical framework based on a systematic review of the literature on international organizations, in order to explain the different factors that facilitate or inhibit the possible deployment of international norms into domestic law. For instance, the research illustrates that states may have an incentive to respect international law for reputational reasons. Now, the team is conducting in-depth analyses of the domestic law (i.e. legislation, regulations, and case law referring to the WHO) of the following countries: Brazil, Canada, Costa Rica, France, Israel, New Zealand, Switzerland, and the United States. Pursuant to a pre-established document collection strategy, the researchers selected at this stage a total of 6,111 instruments for these eight countries. The research team analyzes these instruments to ascertain how, when, and why WHO norms are cited within the law of each country.
The United States provides a case study that helps to understand the project and its impact. First, it should be noted that, in the case of a federation like the U.S., the division of powers requires to look at both the federal and subnational (states) levels in health matters. Of the 6,111 instruments above, 924 pertain to the U.S. The analysis aims at answering several questions, including:
- Which national authorities refer to the WHO? The analysis of federal regulations in the U.S. shows that although the main authority citing the WHO is the U.S. Department of Health and Human Services (29%), two other departments had significant results: Labor (18,5%) and Agriculture (15%). This implies that the WHO has an overarching impact on different social and economic issues, beyond a strict interpretation of “health matters.”
- Was the WHO norm determinant for the national decision-maker (judicial, legislative, or executive)? Or, on the contrary, was the WHO norm rejected? A frequent example in the research corpus reveals that the WHO declaration of the COVID-19 pandemic was sometimes decisive for the national authority, when it adopted measures to manage this health crisis in its country. This declaration served to justify the urgency and health hazards at stake, which were prerequisites for some decisions according to domestic law (i.e. containment, closure of borders).
- Which WHO norms are most cited by states? Does the binding nature of a normative instrument further encourage states to refer to it? As a matter of international law, the binding nature of a norm (hard law) imposes a formal duty for states to act while a non-binding norm (soft law) is an “invitation” to act in a certain way. Different studies have shown that both norms have an impact at the domestic level; yet, the precise nature of such impact deserves further research. The International Classification of Diseases was the most cited WHO instrument in U.S. laws and regulations, and this instrument is sometimes considered as “quasi-binding,” because it is based on a combination of binding and non-binding norms. The analysis of the most cited WHO documents provides clarity on which characteristics of a norm particularly influence domestic attitudes (adherence/rejection) towards it.
- To which major health challenges does the national instrument relate? For now, about one quarter of the U.S. laws and regulations in our sample refer to infectious diseases: HIV (24%) and COVID-19 (22%). This gives an idea of where the WHO normative footprint can mostly be found and, conversely, where it is not. The research can also identify, through a combination of other information collected during the research, whether such high rates of WHO reference for specific health challenges are linked to a more active production of — binding or non-binding — norms by the WHO in these areas or to a stronger “dissemination capacity” (communication strategy, accountability mechanisms, etc.) regarding some WHO norms.
If the analysis of domestic law already presents promising results to concretely understand the normative footprint of the WHO, these results are likely to be even more interesting once the next step, interviews with key national and international experts, starts. It is essential to better understand the actual impact of the WHO within member states and how to help the WHO and member states improve the functioning of the organization — something the WHO itself is strongly interested in. Considering the unique role the WHO plays in global health governance and the importance of health issues around the world, improving global health infrastructure is not a luxury, but a responsibility.