The future of the World Health Organization: what role for international law?

• Author: Fidler, David P.

1. INTRODUCTION

   Since the election of Dr. Gro Harlem Brundtland as the new Director-General of the World Health Organization (WHO, or the Organization),(1) the future of WHO has been a much discussed topic. For many years, WHO has come under attack from public health and political leaders who believe that it has become inefficient and ineffective. Many reform proposals have been suggested in public health literature; however, under Director-General Hiroshi Nakajima, WHO reform never progressed far.(2) Brundtland's selection has rejuvenated the hopes of many inside and outside the Organization who wish to see WHO return to the greatness of its halcyon days.(3)

   An emerging issue in discussions of WHO's future is what role international law should have in WHO's global public health mission. Historically, WHO has ignored international law.(4) In a seminal 1992 article, Allyn Taylor, an American legal scholar and WHO consultant, made the first significant case for WHO to take international law more seriously than it historically has.(5) This Author has made similar arguments, specifically in connection with WHO's approach to emerging infectious diseases.(6) The literature also contains a growing recognition of the importance of other international legal regimes, especially international trade law, to WHO's future.(7) The contrast between WHO's historical attitude and the emerging interest in the importance of international law to WHO's work creates an opportunity to explore what role international law should play in WHO's future.(8)

   This Article argues that WHO should take international law more seriously than it has in the past by developing an understanding of how international law already affects global health concerns and by using international law as a strategy to support WHO's mandate of furthering humanity's health. In addition, this Article develops the concept of global health jurisprudence to provide a comprehensive framework into which the Organization can integrate its international legal endeavors. The concept of global health jurisprudence helps clarify that WHO faces legal challenges not only internationally, but also nationally, and both must be addressed in an integrated and comprehensive manner. Creating global health jurisprudence will prove a difficult and frustrating task for WHO and will require the Organization to develop and utilize public health law capabilities that it has never thought necessary. Despite this formidable challenge, pursuit of global health jurisprudence constitutes a strategy that WHO needs to include as an essential element of its future global health policy.

   Part II provides a brief history of international health law by analyzing (1) international legal activity from the mid-nineteenth century until WHO's creation, (2) the constitutional authority WHO possesses to develop international health law, and (3) how WHO has neglected international law during most of its fifty-year existence. Part III contrasts WHO's historical attitude towards international law with general developments in international law since 1945 and with how other international organizations have used international law to address global problems. Part IV attempts to explain why WHO neglected international law during its first fifty years by focusing on the adverse legal consequences of the Organization's "medical-technical ethos." Part V addresses the skeptical perspective that, even if WHO had been more involved with international law, such involvement would have made little difference to global public health because international law is a weak institution in international relations. Part VI examines the role of international law in WHO's future and argues that WHO is facing an international legal tsunami that will require a sea change in its attitude towards international law. Part VII presents the concept of global health jurisprudence as a possible framework for WHO to use in integrating national and international law into its future public health mission.

2. A BRIEF HISTORY OF INTERNATIONAL HEALTH LAW

   1. A Century of International Legal Activity

      In thinking about WHO's stance on international law, it is important to note that the structure and dynamics of international relations force states to use international law in international health cooperation.(9) WHO's lack of interest in international law is anomalous in the history of international health cooperation. The nature of many public health concerns, such as infectious diseases, tobacco control, and narcotic drugs, is such that these issues escape the control of individual sovereign states and instead become matters of importance in interstate relations.(10) Historically, once public health problems entered the realm of the international system, states turned to international law as a tool to develop common rules, institutions, and values. As a result, WHO's lack of interest in international law does not reflect the historical experience of states and international health organizations prior to World War II. While WHO has been accused of focusing too little on international law, international relations immediately prior to World War II were plagued by too much international health law. This crude comparison invites a brief look at how international health law developed prior to, and after the creation of, WHO. This historical perspective creates a better context! for arguments in favor of more international legal activity at the Organization.

      International health law was born during the first International Sanitary Conference held in 1851.(11) Cholera epidemics in Europe forced European states to realize that protecting their territories from disease importation and easing trade burdens imposed by quarantine measures required international cooperation.(12) Infectious disease control had been a national interest of states since the formation of the modern states system, as evidenced by the widespread adoption of national quarantine regulations by European states prior to the nineteenth century.(13) But, "[p]rior to the first International Sanitary Conference in 1851, national disease control measures were not topics for international diplomacy."(14) Increasing volumes and speed of international trade gradually transformed national quarantine measures into an international systemic concern because of the increasing burdens such measures placed on maritime commerce.(15) Once part of the dynamics of the international system, public health problems implicated international law as an instrument of interstate cooperation.(16) Given the structure of the international system, the only way states could achieve their goals of better protection from disease importation and reduced quarantine burdens on trade was through international cooperation and international law.

      The goal of the first International Sanitary Conference was a treaty; a treaty was negotiated, but it never entered into force.(17) Every International Sanitary Conference from 1851 to 1938 sought to produce an international agreement of some kind.(18) Many of these conferences succeeded in this objective, producing a plethora of international agreements on infectious disease control by the eve of World War II.(19)

      While the major activity of the 1851-1940 era took place in human infectious disease control, states also engaged in activity connected with animal diseases. In 1924, states created the International Office of Epizootics to coordinate international action on animal diseases.(20) Other treaties on animal diseases followed.(21) Nor were plant diseases ignored. Perhaps the earliest treaty that actually came into force on controlling the international spread of a disease was an 1878 agreement addressing a plant louse, Phylloxera vastatrix.(22) States later concluded another treaty on plant protection.(23) Public health concerns also led states to negotiate international treaties on the alcohol trade to Africa(24) and on psychotropic drugs.(25)

      A detailed examination of the significant number of treaties produced between 1851 and 1940 is beyond the scope of this Article. Instead, this Article focuses on the substantive objectives of the major treaties on infectious disease control. The approaches that used international law during this period generally pursued one or more of the following objectives: (1) protecting Europeans and North Americans from diseases from less affluent regions; (2) harmonizing national public health measures, such as quarantine, to reduce burdens on trade; (3) establishing international surveillance for diseases; and (4) creating international health organizations.(26) Separating these objectives for analytical purposes is useful, but the dynamics of international legal activity changed from 1851, when the emphasis was largely on quarantine harmonization, to the International Sanitary Conventions of 1912 and 1926, where the emphasis was on surveillance administered through an international health organization.(27) The force that caused this shift in international health law was science. Once scientists proved "germ theory" correct and began to understand how pathogenic microbes caused illness, scientific principles began to guide the substance of international health law in two major respects.(28) First, surveillance became central to international health law on infectious diseases.(29) In addition, proper surveillance required permanent international health organizations that could establish and operate surveillance systems.(30) By the mid-1920s, four international health organizations had been established: the Pan-American Sanitary. Bureau (1902),(31) the International Office of Public Health (1907),(32) the Health Office of the League of Nations (1923),(33) and the International Office of Epizootics (1924).(34) Second, scientific and public health principles began forming the basis for the harmonization of national quarantine measures through...