Comments on The WHO in the Age of the Coronavirus

In a paper recently published by the American Journal of International Law, USALI Faculty Director José E. Alvarez offered five reasons the World Health Organization is in crisis as well as suggestions for reform. Professor Alvarez also discussed his analysis in this USALI Perspectives essay, and in this October 28 talk. Professor Shitong Qiao of Hong Kong University served as commentator in the October 28 program. This essay summarizes his observations.

There is much to agree with in Professor José E. Alvarez’s argument that COVID-19 may ultimately drive organizational change at the World Health Organization (WHO). Indeed, nation states are currently discussing how to reform the WHO, with even China supporting a comprehensive review of the WHO regime. From the starting point of a shared vision of the WHO as defined in the WHO Constitution, I would like to provide a realistic assessment of how China might respond to Professor Alvarez’s proposals for WHO reform.

What exactly is the global health challenge we currently face? This is how I see the challenge: an infectious disease sparked by a deadly virus was found somewhere within a WHO member state and the virus has the potential to kill millions of people. Ideally, international society should have obtained information on the virus instantly and begun working together to combat it. Unfortunately, that is not what happened with COVID-19. Faced with an unknown virus, the individuals and organizations involved are often slow and even hesitant to share the information they have or, even worse, hide information from the outside world due to concerns over potential political and legal liabilities. Meanwhile, the virus spreads beyond state boundaries. Individuals and countries start pointing fingers at one another rather than working together, rendering the situation even worse.

Two major problems in this scenario can be identified: information flow and collective action. These problems are common to a wide range of organizations, including corporations, nation states, and international organizations. Attempting institutional reforms to overcome such problems unfortunately produces another collective action problem among member states. There is hope, however, precisely because countries need one another to survive. The key is to avoid pointing fingers at one another and instead focus on the crisis that we collectively face. To do so, it is crucial that we depoliticize the WHO and seek consensus among member states.

It is crucial that we depoliticize the WHO and seek consensus among member states.

A fundamental problem with the WHO is its inability to overcome its state-centered roots. Although there is a common perception that authoritarian states emphasize sovereignty to a greater extent than democratic states, both China and the U.S. have acted as if they enjoy some sort of exceptionalism with respect to international law. Both countries’ emphasis on their own sovereignty can indeed be a barrier to empowering the WHO. In two specific areas critical to the ongoing pandemic, however, I think there is room to further empower the WHO, even from a Chinese perspective.

The first involves expanding the participation of non-governmental organizations (NGOs) in the international health regime. I see no reason for the Chinese government to oppose such an approach. Despite all odds, both environmental and public health NGOs have grown considerably in number and influence in China in the past few decades. The second involves increasing the WHO’s capacity to collect and access information directly from member states instead of relying on member state governments to provide it. Actually, I think doing so would provide a solution to the problem of information flow within China’s bureaucratic system, which is a fundamental problem of the country’s political system that Professor Roderick Hills and I have written about elsewhere.

After the 2003 outbreak of Severe Acute Respiratory Syndrome or SARS, a coronavirus even more deadly than COVID-19, the Chinese central government instituted a top-down surveillance system that was said to connect hospitals, even those in remote counties, directly to the national Center for Disease Control and Prevention in Beijing. The system was designed to speed up the information flow so that information from the bottom could reach the top in just 24 hours. However, the system did not work properly at the beginning of the COVID-19 pandemic in January 2020. As I stated in late February 2020 during a panel discussion on COVID-19 at the NYU School of Law, this was likely due to the phenomenon of local governments hiding bad news from the central government for political reasons. If the WHO could collect information on infectious diseases directly from Chinese hospitals and ensure both the security of the information and that it would not be used against the Chinese government, then the Chinese government might well be amenable.

Professor Alvarez argues that the WHO relies too much on soft law and urges it to adopt more hard measures such as a “name and shame” approach and even sanctions. Such measures sound tempting. Realistically, however, I have doubts about China’s willingness to accept such reform. Both China and the United States have proven quite reluctant to accept international sanctions or hard law enforcement directed at them. Consider their stances with respect to the International Criminal Court and International Court of Justice, for example. I am simply not convinced that China has any appetite for more hard law, and it is questionable whether this kind of proposal would bring about more or less cooperation from China and other countries.

I agree that the WHO’s inflexible emergency declaration system should be reformed. Professor Alvarez advocates replacing the current binary emergency declaration system with a “traffic light system” that allows for a nuanced reflection of the risks. This could encourage states to provide more accurate information on the emergence of health threats by lowering the stakes. I further suggest that it should be made clear that a declaration of emergency does not indicate or connect directly to legal liability. It is more important to secure information and cooperation from member states than to pursue legal liability, at least from an ex ante perspective.

The call for collaboration with other international organizations and for incorporating expertise beyond public health initially sounds attractive. Consultation and collaboration with the international regimes dealing with peace and security, trade, the environment, and so on would facilitate the flow of information and would be consistent with the WHO’s holistic approach to health. But such a reform could increase the number of veto points in global health decision-making. The proposal to bring more kinds of experts into the WHO, including lawyers, also carries a potential cost. At least from the Chinese perspective, the WHO is a neutral, scientific, non-political organization. Would adding lawyers to the organization alleviate or exacerbate the power struggle between WHO’s powerful member states?

There is considerable tension between a holistic approach to global health challenges and the technocratic governance of the WHO in an international system that is still very much dominated by nation states. Overcoming the political economy barriers, particularly the problems of information flow and collective action, will require careful thought and concerted international effort.

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Shitong Qiao is an associate professor of law at the University of Hong Kong and has been a visiting professor at NYU School of Law.

The views expressed in USALI Perspectives essays are those of the authors, and do not represent those of USALI or NYU.

This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.