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Law360 (June 11, 2020, 5:21 PM EDT )
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| Stephen Kho |
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| Claude Chase |
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| Mark Linscott |
Headquartered in Geneva, Switzerland, the WHO has 194 member states and a broad public health mandate, including coordinating responses to public health emergencies. Naturally, therefore, the WHO sits at the center of the global response to COVID-19. This begs the question: Why would the U.S. seek to withdraw from the WHO membership in the middle of a global public health crisis?
According to a fact sheet published by the White House, the U.S. halted WHO funding pending an investigation into what is alleged to be the WHO's mismanagement of the COVID-19 pandemic.[1] Then, in a May 29 press conference, Trump argued that China had "ignored their reporting obligations to the World Health Organization and pressured the World Health Organization to mislead the world when the virus was first discovered by Chinese authorities."[2]
The U.S. is the largest single contributor to the WHO. Trump has claimed that his administration has "deep concerns whether America's generosity has been put to the best use possible."[3] According to Trump, "the WHO failed to adequately obtain, vet and share information in a timely and transparent fashion."[4]
In fact, he now claims to have "detailed the reforms that [the WHO] must make and engage with them directly, but they have refused to act."[5] Trump then announced that the U.S. would leave the WHO and redirect "those funds to other [unspecified] worldwide and deserving, urgent, global public health needs."[6]
The U.S. has thus attempted to frame its action against the WHO as underpinned by concerns that the organization has strayed from its mandate, that its activities have become politically driven and that its current structures render it unfit for its purpose. Whether this is true in the context of the WHO's handling of COVID-19 may be subject to debate. What is undeniable, however, is that the U.S.' approach to dealing with perceived faults of the WHO is consistent with the current administration's overall strategy for dealing with international organizations perceived to be acting against U.S. interests.
For example, Trump has been consistently critical of the World Trade Organization and has threatened in the past to defund it and withdraw U.S. membership. The U.S. under Trump, also withdrew from the Paris Agreement under the United Nations Framework Convention on Climate Change, and threatened to withdraw from the North Atlantic Treaty Organization.
It appears that the U.S. action against the WHO is an extension of the current administration's rejection of international organizations more generally, and its retreat from multilateralism at a time when multilateral cooperation is needed most.
Another undeniable truth is that, while international organizations are not perfect, they play a critical role in facilitating multilateral cooperation to address pressing global issues that cannot be addressed effectively and efficiently through unilateral or bilateral efforts. This is true across a myriad of domains, including public health, international trade and climate change. Indeed, the recognition that global problems require global solutions is the very reason that international organizations are established in the first place.
To be clear, the WHO is indeed in need of reform. This is not an unfair criticism, but a harsh reality. International organizations must undergo periodic reform to ensure that they continue to deliver on their mandates as effectively and as efficiently as possible, and that they remain fit for their purpose. Thus, reform of the WHO is a laudable objective — but withdrawing from the WHO is counterproductive and counterintuitive.
Instead of terminating its relationship with the WHO, the U.S. should ramp up and deepen its engagement within the WHO, and build and leverage strategic alliances to achieve effective reform. The starting point for reform efforts should be to reinvigorate and reemphasize inclusiveness, transparency and accountability in the governance of the WHO.
The Imperfection of Multilateral Cooperation and International Organizations
Sovereign states have entered into hundreds of multilateral treaties and established hundreds of international organizations with acronyms spanning every letter of the alphabet. They have done so since 1865 when the first international organization, the International Telecommunication Union, was established. They have continued to do so for one main reason — a recognition that multilateral cooperation is the most effective means for addressing global interests and objectives, and that a central entity in the form of an international organization is the most efficient means of facilitating multilateral cooperation.
Yet, multilateral cooperation is not perfect, nor are the international organizations established to facilitate it. To lesser or greater degrees, there is always a simmering tension between their constituent member states — sovereign countries holding the purse strings and are ultimately accountable to their domestic constituents — and the secretariats of these organizations, which are established to provide administrative and technical support, and funded, at least in part, by the taxpayers of the member states.
The tensions appear to stem in part from a perception that secretariats are staffed by international bureaucrats with their own agendas operating without sufficient accountability and transparency. This perception may be true to some degree across the myriad of international organizations. At one end of the spectrum, the WHO secretariat has at times received harsh criticism for perceived lack of transparency and accountability in its activities, and for pushing agendas that are not necessarily shared by the WHO membership as a whole.
On the other end of the spectrum, the WTO is perhaps the quintessential example of a member-driven organization, to the point that it is sometimes not as effective and efficient as it could be, since its secretariat is often powerless to undertake necessary initiatives unless all of its 164 member states agree. Even with these limits on its mandate, the WTO secretariat is staffed by experienced and dedicated professionals who play a vital role in the operations of the organization.
The relationship between member states of an organization, on the one hand, and the secretariat of that organization, on the other hand, is a delicate one and it always will be. In the wake of the U.S. action against the WHO, some have called for a depoliticization of the organization, especially its secretariat. While this is an ideal to strive for, the reality is that it can never be entirely achieved.
International organizations are political entities by their very nature. They are composed of sovereign member states that each have diverse interests and objectives, driven by dynamic political considerations. This is the inherently political context within which secretariats and their staff operate.
As long as the constituents of international organizations are member states, which, by definition and in fact are truly sovereign, it will be impossible to entirely depoliticize their work. In fact, there often is intense jockeying for the top positions in secretariats with a central objective of having insiders who are sympathetic to particular member state interests.
Nevertheless, the continued legitimacy of international organizations, including the WHO, hinges on their ability to facilitate multilateral cooperation in a manner that is transparent, accountable and inclusive. These core fundamentals, which are tenets of good governance itself, should be reemphasized in the context of any reform efforts.
Getting Back to Basics — Reemphasizing Transparency, Accountability and Inclusiveness
Secretariats of international organizations must act in a manner that is transparent and accountable, and — as much as possible — objective. This may seem axiomatic, yet it is not always the case. Secretariats are staffed by individuals who, consciously or unconsciously, hold certain ideologies and beliefs.
While this phenomenon is innocuous in and of itself, it can undermine the legitimacy and credibility of a secretariat in the absence of well-defined mandates agreed to by member states, coupled with sufficient procedural safeguards to hold them to account. This is especially true for an organization like the WHO, which, in light of its mandate, is expected to take science-based decisions uncoupled from politics and ideological beliefs, always placing public health first, as identified by its member states.
Ideologies and beliefs that are disconnected from the mandate of a secretariat can begin to seep into the work and direction of the organization. The danger is that a secretariat embarks on initiatives of its own, guided neither by the express text of the international treaty that establishes it, nor the various mandates that member states have entrusted it with over time.
It is thus necessary for member states to assign to secretariats clearly defined mandates and to have in place mechanisms that effectively hold them accountable. Ensuring that secretariats are inclusive in their work — with respect to their engagement with actors and nonstate actors — assists in creating a culture of transparency, which in turn makes it easier to hold organizations and their secretariats accountable.
Mandating inclusiveness also ensures that all views contend, making it more likely that decisions and recommendations will be underpinned by as broad an evidence base as possible.
Over the years, the WHO secretariat has been accused of being beholden to certain narrow ideologies that then become entrenched over time, and of not being inclusive in its engagements, particularly with respect to nonstate actors. Examples include questions related to policy responses involving processed meat, nutrition programs, tobacco, pharmaceuticals, agriculture, medical devices and clean technology.
The WHO claims that certain industries are solely profit-driven and are unconcerned about health, safety and the environment. These views of secretariat officials can be one-sided and often offer no sustainable long-term solutions, informed by consultations from a broad spectrum of interests. In some circumstances, they may even be irresponsible, unfair and inconsistent with core values of transparency and equal treatment.
Some of these questions are undoubtedly controversial. However, the thing about fundamental tenets of good governance, like inclusiveness, transparency and accountability, is that they are — or should be — inviolable and thus admit very few exceptions, even amid controversy. Indeed, they are most needed in areas of controversy.
When broad and arbitrary exceptions are made for controversial cases, they run the risk of taking hold, such that the exception may become the rule, even when later dealing with cases not considered controversial.
If the WHO secretariat is indeed being unduly influenced by certain actors, this may in part be because those actors have greater access to decision makers in the secretariat compared to others. Requiring the WHO secretariat to be inclusive in its engagements would only enhance transparency in the execution of the WHO's functions, making its secretariat more accountable.
Moving closer to the COVID-19 pandemic and the U.S. suspension of its WHO funding, the fact sheet published by the White House makes specific assertions against the WHO vis-a-vis its handling of the pandemic. These assertions highlight that transparency and inclusiveness in the operations of the WHO secretariat deserve attention in the context of any reform efforts.
For example, the White House claims that Taiwan contacted the WHO on Dec. 31, 2019, after seeing reports of human-to-human transmission of COVID-19, and the WHO kept it from the public. Taiwan is not a WHO member state.
If the U.S. assertion is true, then it underscores the need to tighten up inclusiveness and transparency in the operations of the WHO secretariat. That Taiwan is not a WHO member state is not reason enough, or indeed at all, to have excluded its early reporting of alleged human-to-human transmission from communications to the public.
An inclusive, transparent and accountable WHO secretariat would have made Taiwan's disclosure public, with the caveat, perhaps, that further information was being sought.
To be sure, this is not the first time that the WHO has been criticized for not being transparent and accountable in its handling of a health crisis. The Ebola epidemic in West Africa began in Guinea during December 2013, and the WHO was officially notified of the outbreak on March 23, 2014. The WHO did not declare the outbreak to be a public health emergency of international concern until August, by which time there were 1,779 confirmed and suspected cases of Ebola, nearly a thousand of which were confirmed or suspected to have resulted in death.
This delay between the WHO being made aware of the epidemic and declaring it a public health emergency of international concern has been the subject of considerable criticism,[7] including in an Ebola interim assessment panel report commissioned by the WHO itself.
A Flawed Approach — US Withdrawal From the WHO
Tensions between the U.S. and China, which ran high even before the emergence of the COVID-19 pandemic, may also be a consideration in the U.S. announcement to terminate relations with the WHO. Previously the White House has stated that, while "China provides just a small fraction of the funding that the U.S. does, the WHO has shown a dangerous bias toward the Chinese government." More recently Trump went further to claim that "China has total control over the World Health Organization."[8]
Elaborating on this claim, the U.S. asserts that the WHO praised the Chinese government's response throughout January and claimed there was no human-to-human transmission, despite the fact that doctors in Wuhan warned that there was. The U.S. further criticizes the WHO for deciding on Jan. 22, that COVID-19 did not pose a public health emergency of international concern, while praising China's response. Finally, the U.S. alleges that the WHO "made the disastrous decision to oppose travel restrictions from China and other countries — despite applauding travel restrictions within China itself — leading to further spread of the virus internationally."
If the U.S. assertions of undue Chinese influence over the WHO Secretariat are true, then this is indeed a cause for concern. As noted, the legitimacy and credibility of international organizations hinge on their ability to facilitate multilateral cooperation in a manner that is transparent, accountable and inclusive. No secretariat should be unduly influenced by any of its member states. A secretariat should, instead, be operating to fulfill clearly defined mandates agreed to by all member states.
Nevertheless, the U.S. is employing a flawed means to achieve the desirable objective of reform. More, not less, multilateral engagement and cooperation is needed to ensure that the WHO is responsive and fit for its purpose, especially at this time. The U.S. approach of withdrawing from international organizations, including the WHO, is counterproductive.
It is also counterintuitive if the goal is to tackle what the U.S. perceives as undue influence of China over the activities of the WHO. Indeed, halting U.S. engagement with the WHO amounts to an abdication of U.S. leadership and opens up a void that will inevitably be filled by other actors.
Conclusion
Rather than pulling away from the WHO, the U.S. should instead ramp up its engagement with the WHO, building and leveraging strategic alliances to achieve constructive reforms. It is beyond the scope of this piece to recommend precisely what reforms should be undertaken.
However, what is clear is that, with respect to the role of secretariats in facilitating multilateral cooperation within international organizations, there is a need to reemphasize the fundamentals of transparency, accountability and inclusiveness as hallmarks of good governance and as tenets that must guide all of the organizations' actions. These fundamentals should be at the core of reform efforts moving forward.
Stephen Kho is a partner and Claude Chase is an associate at Akin Gump Strauss Hauer & Feld LLP, and Mark Linscott is a senior fellow at the Atlantic Council.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] "President Donald J. Trump Is Demanding Accountability From the World Health Organization," White House Fact Sheets, April 15, 2020, http://www.whitehouse.gov/briefings-statements/president-donald-j-trump-demanding-accountability-world-health-organization/.
[2] Jason Hoffman and Maegan Vazquez, "Trump announces end of US relationship with World Health Organization," CNN, May 29, 2020, https://www.cnn.com/2020/05/29/politics/donald-trump-world-health-organization/index.html, accessed May 30, 2020.
[3] Lauren Fedor and Katrina Manson, "Trump suspends funding to World Health Organization," The Financial Times, April 15, 2020, http://www.ft.com/content/693f49e8-b8a9-4ed3-9d4a-cdfb591fefce, accessed May 22, 2020.
[4] Id.
[5] "Remarks by President Trump on Actions Against China," White House Briefing Statement, May 30, 2020, https://www.whitehouse.gov/briefings-statements/remarks-president-trump-actions-china/.
[6] Id.
[7] M. Eccleston-Turner and S. McArdle, "The Law of Responsibility and the World Health Organisation: A Case Study on the West African Ebola Outbreak," In M. Eccleston-Turner and I. Brassington (eds) Infectious Diseases in the New Millennium International Library of Ethics, Law, and the New Medicine, vol 82. Springer, Cham.
[8] "Remarks by President Trump on Actions Against China," White House Briefing Statement, May 30, 2020, https://www.whitehouse.gov/briefings-statements/remarks-president-trump-actions-china/.
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