This article addresses the ecology and functioning of the World Health Organization in a time of crisis, zooming in on the pressures on both the organization and its leadership generated by the circumstance that the organization cannot avoid allocating costs and benefits when taking decisions. The article argues that the covid-19 crisis illustrates how international organizations generally and the who in particular are subjected to conflicting demands, and how this impacts on the role of decision-makers. The latter, it transpires, need to display considerable practical wisdom.
If the job of UN Secretary-General is often depicted as the most difficult job in the world, the position of Director-General of the World Health Organization (who) must be a close second. The reason should be obvious: unlike his1 colleagues heading the Universal Postal Union, the International Labour Organization or the International Maritime Organization, decisions by the who (and these are often the province of its Director-General, as we shall see) tend to relate to matters of life and death, and tend to do so directly. What makes matters more complicated still is that (again, not quite like his colleagues at upu, ilo or imo), his decisions also have an immediate knock-on effect on hosts of other things. This is not to belittle the upu, ilo or imo in any way; these are important organizations doing important work, and the world would be worse off – considerably worse off – without them.
And yet, the who is different, an example of how international organizations are sometimes asked to act in extreme circumstances, and are institutionally set up to do so. For that reason, a focus on the who can illuminate something of general value, and help in understanding these creatures and the law relating to them. In zooming in on the who, I will make an argument in two parts, intimately related. First, I will argue that international organizations, their structures, activities, and decisions, generate distributive or re-distributive effects.2 This should be obvious to any but the most casual observer, but is not, with the law in particular (but by no means exclusively) being trapped in a narrative (a veritable ideology) of its own making. According to this popular narrative, international organizations are created for the common good; they serve a need; they are inherently benign, and are a-political.3
If my first point aims to illustrate the inherently distributive role of international organizations, the second point follows quite naturally by concentrating on the role of the organization’s leadership. I will enlist ethical considerations in support of what can at this juncture only be a preliminary and superficial evaluation of the role of the who and especially its Director-General, Dr Tedros. It is always risky to comment on political action while said political action is ongoing, as the familiar quip about it being ‘too early’ to comment on the effects of the French Revolution illustrates. Information will be incomplete, and one false move down the line may undermine whatever impression has thus far been created. And yet, it seems that in an era characterized by so much obviously poor and corrupt leadership, there might be merit in sketching that poor and corrupt leadership are not natural givens.
The outbreak of the novel coronavirus crisis (or, as I shall refer to it from now, the covid-19 crisis), is one episode that makes clear in what constellation and in what manner the who must act and is expected to behave. The virus first broke out in Wuhan, China, before travelling abroad, first to South Korea, later to Italy and the rest of the world. Many people have died: at Easter 2020, almost 1,400,000 cases have been confirmed, with more than 80,000 fatal. Obviously then, human life is directly at stake, and it is expected that the outbreak of the virus will also lead to a global economic crisis. It is this force field which the who and its Director-General must navigate.
2 The International Organization as Organization
Ever since it was first developed a century or so ago, the law of international organizations has been based on the unspoken assumption that international organizations are manifestations of ‘the international’. They represent cooperation between states, and since cooperation is an unqualified good (yet another unspoken assumption4), it follows that international organizations are to be welcomed and that their work is to be facilitated. This helps explain why authors a few decades ago could refer to organizations as helpful in turning ‘swords into plowshares’,5 as a popular title goes, or even suggest that organizations can help bring about the ‘salvation of mankind’.6 While such phrases are no longer heard very often, the sentiment nonetheless persists: much academic analysis of international organizations continues to be based on the unspoken assumption that organizations are essentially benign creatures, beacons of hope in a world otherwise occupied by nasty, selfish states and their populist leaders. And this applies to non-academic discussion as well: it is hardly exceptional for people to suggest that global issues can best be left to an international organization – even Pope Francis suggested that extreme hunger and climate change should be confronted by setting up an international organization.7
Discussions qualifying some of today’s political leaders as ‘gravediggers’ of international law merely because they wish to withdraw from some international organizations underline the epistemic point that the prevailing understanding revolves around state interests and state positions, and that these can meaningfully be captured in terms of pro or contra international law, pro or contra multilateralism.8 They cannot: no state is ‘for’ or ‘against’ international law as a matter of principle; not a single state would decline the right to defend itself just out of opposition to international law. Instead, states are for or against particular manifestations of international law; they are for or against particular regimes, depending on whether these are beneficial or not, however ‘beneficial’ may be defined. And whether these regimes are beneficial is rarely a matter of ‘state interests’: the state as such actually has few interests that are not reducible to those of its nationals, other perhaps than in the hopelessly circular reference to ‘raison d’état’. Governments have interests, companies have interests, individuals have interests, but among the few state interest worth mentioning is that according to which the state aims to promote the interests of its nationals.
What the standard portrayal of international organizations misses, is that the term ‘international organization’ comprises two words, not just one. International organizations are not just ‘international’, they are also ‘organizations’, and it might be useful to think through what implications this can possibly have. Like organizations generally, international organizations essentially do three things. First, they regulate, within their area of competence (and sometimes beyond). Second, they manage: they make sure that what they regulate is also given effect, is applied, is monitored, is complied with. And third, in the process, they allocate costs and benefits – decisions of international organizations, like decisions generally, come with winners and losers.
This applies to all organizations, as a general proposition.9 It applies to your local fire department, which will have enacted rules on how to quell a fire, and which fires to prioritize in case of multiple outbreaks. It applies to your university, which has rules about when and what (and to whom) to teach and examine, and what kind of research is preferred. Those rules may be unwritten and in part culturally determined, but some regulation is taking place, it is being managed, and it creates winners and losers: among the latter might be prospective students who cannot afford the tuition fee, or researchers who fail to publish in the leading journals.
The same applies to international organizations: they regulate and manage, and in the process, however unintentionally sometimes, costs and benefits get allocated. It is this circumstance that makes the job of Director-General of the who so difficult, perhaps more difficult than that of many of his colleagues. The health domain tends to have a strong radiating effect, meaning that few topics affect only health. Instead, there are many additional interests involved, all vying for prominence, all wishing to be taken into consideration, all wishing to be prioritized, and some of great urgency. A brief look at the covid-19 crisis and responses thereto will illustrate this.
3 A Brief Look at the covid-19 Crisis
Under the who Constitution, negotiated in 1946 and in force since 1948,10 the Director-General of the who has some far-reaching powers. In particular, under Article 28(j), he has a ‘Security Council’ type of executive power when it comes to deciding on health emergencies, if so authorized by the who’s Executive Board.11 The latter is a body composed of 34 member state representatives and thus, it maybe hypothesized, prone to politicization, even if the individuals representing those states are expected to have a medical background. While the mere existence of the clause is remarkable enough, none the less its politicization potential has meant that it has never been very useful; it was used only once, in 2015, in connection with the ebola outbreak. Possibly as a result, when the who used its quasi-legislative powers in 2005 and adopted a new set of International Health Regulations (ihr)12 under Articles 21 and 22 of the Constitution,13 it created a novel procedure for health emergencies. Under Article 12 of these Regulations (which represent binding law for all who members), the Director-General on his own can declare the existence of a public health emergency of international concern. Instead of having to await authorization by the Executive Board under Article 28 of the Constitution, under the ihr the Director-General can do so on the advice of an emergency committee composed of experts, and to make it even more of a personal affair, the Director-General himself can decide on establishment, composition and termination of the emergency committee concerned (there are different emergency committees for each public health emergency under the ihr). Therewith, the Director-General wields, potentially, a remarkable amount of public power, even if in practice the advice of the emergency committees has steadfastly been followed.14 To those with managerial ambitions the position might sound enviable; others might be reminded of the maxim that ‘with great power comes great responsibility’. And what is more difficult still is that the Director-General is sandwiched – not to say squeezed – between a number of different interests, pulling in different directions.
When in 2009 the WHO declared the H1N1 flu a public health emergency of international concern, it triggered some peculiar responses, with some suggesting that the WHO had ‘jumped the gun’. The episode even led, quite extraordinarily, to discussions in the parliamentary assembly of the Council of Europe which, to be sure, has no special relationship to the who or a specific mandate to follow the WHO’s activities.15 And yet, some of Europe’s politicians were critical. One reason for being critical resides specifically in the distributive effects of decision-making: those pharmaceutical companies whose vaccines are ready, tested and marketable, stand to make a nifty little profit when there is a public health emergency (provided, of course, that vaccines have been found and developed). Other companies, by contrast, those that are awaiting clearance or are still developing, lose out. As a result, there is tremendous pressure on the WHO – and thus the Director-General. His decision can, quite literally, run some companies aground, while turning others into profit-making machines.
To analyze this in terms of the position of the who’s member states and their interests is merely to scratch the surface, and bound to remain incomplete, precisely because the decision-making affects private actors. Member states may (and do) act as conduit for private interests, and this is of great relevance when deciding to set up an organization such as the who, but member states have fairly little interests of their own. They act, instead, mostly to serve the interests of their populations and their companies, and those interests can be manifold.
The current covid-19 crisis makes this eminently visible. While the outbreak started to take on serious forms in January 2020, it took until the end of that month before the Director-General announced a public health emergency of international concern. Some suggest he was slow to act out of undue deference towards China,16 where the outbreak originated, and perhaps this may have been part of his mental balancing act. More likely, however, is that he was reluctant, bearing in mind the criticism related to the ‘swine flu’, to be overreacting. After all, there are serious interests at stake, and not only in terms of lives falling victim to the virus. The 2005 International Health Regulations give the plot away in Article 2, listing the purpose and scope of the Regulations. Purpose and scope are to prevent, protect against, control, and provide a public health response to the international spread of diseases, but doing should avoid, so Article 2 finishes, ‘unnecessary interference with international traffic and trade’. In other words, the drafters of the ihr realized all too well that public health measures, however justified in their own right, will have knock-on effects. A travel ban suggested in order to contain an epidemic will mean tourism will grind to a halt, negatively affecting airlines, hotel chains, and a host of other small businesses, from restaurants to taxi services. The covid-19 situation has already proven the point: it only took a few weeks before the first airline (Flybe) went bankrupt, and even major players such as British Airways and klm–Air France are in serious trouble.17 The World Tourism Organization is on alert, and has called ‘for tourism to be included as a priority in future recovery efforts’.18
Other sectors too may be badly affected. Every cancelled football match means less income for the football club concerned, but also for pubs located near stadiums. The cultural sector is hit hard, with museums, theatres and galleries closed, and concerts cancelled. Restaurants will feel the pain of customers wary to go out for the evening. Schools being closed means that parents working independently may lose income (and independent gig workers tend not to be very wealthy to begin with), while those in employment may lose their jobs. Small wonder then that the Director-General does not want to come to a rash decision. Declaring an emergency too late may cost lives; doing so too early may cost jobs, and may even, in turn, cost lives later down the line: an economy in crisis may have difficulties supporting a decent public health system even after this particular virus is conquered.
With such an enormous responsibility resting on fragile shoulders, it is no wonder that the Director-General is keen to be surrounded by people who know (or can be presumed to know) what they are doing: public health experts, broadly conceived. Public health is a domain that lends itself for international expert governance, in that diseases do not respect boundaries, populist decision-making, or any of the other niceties usually associated (for better or worse) with global politics and the operation of international organizations. One cannot, despite what some political leaders might wish, build a wall to keep a virus out; one cannot tell a virus to ‘go back home to where you came from’ and hope that doing so qualifies as crisis management. It is no coincidence then that the who relies to a large extent on what may be called epistemic authority – the authority that comes from knowledge and experts.
This can present itself in two forms.19 There is, first, passive epistemic authority: a sense that the authority of the organization rests on a particular knowledge base. A who acting on the basis of scientific medical evidence and insights will inspire greater confidence than one which counts heads or looks at things through politicized spectacles. No organization is free from this, of course, and historically the who has been outspoken against Israel and against nuclear weapons; especially the former owed little to public health concerns.20 That said though, for the better part the who acts on the basis of sound expert knowledge, even if such knowledge may eventually remain provisional (as all science) as a matter of principle.
Doing so feeds into a second, active sense of epistemic authority: if the who acts on a sound scientific basis, there is little reason to contest its suggestions. If the who says having unprotected sex can be bad for one’s health, one may well assume this to be the case. As a result, there is no need for the who to issue binding injunctions against unprotected sex; the fact that the who says so is enough for most. As a result, the who is engaged in a host of non-binding but highly authoritative forms of exercising public authority, ranging from issuing travel advice to harmonizing vaccination passports and training nurses and other medical personnel.21 And in doing so, it exercises authority in ways that may be difficult to track, influencing not just what others do but also how they think.22
That is not to say expert knowledge should be reified. The proper expert knows that her knowledge may ideally reflect the best available evidence at the time, but is always provisional, and much scientific progress involves questioning yesterday’s received wisdom, whether through falsification or through paradigm shifts.23 Indeed, it is well-established that governance by experts is highly political, which further complicates the possible accountability of experts.24 Much depends on which experts are listened to; much depends on which standards are supposed to prevail (and these, in turn, may be arrived at through political processes); and it is even unclear how ‘expert’ is best defined.25
The covid-19 crisis once again illustrates to what extent the Director-General relies on expert advice: he only announced the public health emergency of international concern once the relevant emergency committee had given the green light. At an earlier stage (late January 2020), the committee had decided not yet to worry too much, and consequently no emergency was declared at that moment just yet. It makes perfect sense for the Director-General to do so: being able to invoke the support of the experts insulates him against all too critical responses from those whose interests are affected, and provides helpful political cover. It is also humanly understandable. Easy as it is to accuse the Director-General of ‘covering his backside’ when invoking the experts and their knowledge, asking him to carry the burden of decision-making all alone is asking something Herculean – and no one can be expected to be Herculean. The trick then is not to become over-reliant on expert advisors, and for the Director-General not to lose his own sense of discretion and judgment.
This, in turn, leads to a different set of considerations. In any decision-making role, the personality of the decision-maker plays an important role.26 A brief thought experiment will suggest as much: imagine the who being run by, say, a Donald Trump, or a Boris Johnson, and the point will become obvious. For all their merits (charitably, they are both clever operators in their own peculiar ways), one would not associate Trump or Johnson with many of the classical characteristics often identified as being particularly relevant for the way human beings interact with each other in public affairs or for exercising leadership.27 Character traits such as honesty, magnanimity and courage are often considered to be of great relevance, but perhaps most relevant of all for leadership is what is sometimes referred to as phronesis, typically translated as practical wisdom: the wisdom to take the right decision, at the right moment, in the right circumstances.28 This, many agree, is a character trait that needs to be developed in persons (the young cannot be expected to be very wise in practical matters), but is pivotal to any political community, and it is one of the core traits that separates good leadership from not-so-good leadership.
The covid-19 crisis thus far suggests that the who’s Director-General is doing quite well. Tedros Adhanom Ghebreyesus has a good press;29 Dutch newspaper De Volkskrant devoted a portrait to him in March 2020,30 suggesting a political agenda geared towards protecting the weak (it explains that when Tedros was a child, his brother died after contracting measles). The newspaper qualifies him as ‘charming, modest and above all driven’, therewith suggesting a devotion to the cause of public health, rather than solely to his own position or career.31 Earlier he served as Ethiopia’s Health Minister, and in this capacity oversaw a rapid reduction in mortality of women and children. The number of victims of diseases such as malaria, tuberculosis, meningitis and aids dropped dramatically while he was in charge, so the story reports. Before joining the who, he chaired the Board of the Global Fund to Fights aids, Tuberculosis and Malaria.
Few of us are angels, and the higher we climb, the more flak we may attract. Wikipedia, for what it is worth, suggests that Tedros has attracted some criticism for possibly having covered up cholera outbreaks in Ethiopia during his reign as Health Minister, that a key appointment within the who was made by him without much transparency, and that he was foolish enough to propose that Zimbabwe’s late ruler Mugabe be appointed who Goodwill Ambassador.32 All this may be true and, if so, can only be seen as disappointing.
During the covid-19 crisis, however, he seems to have displayed a steady hand of leadership. As noted, he was not very quick to declare a public health emergency of international concern, but neither was he very late. Given the diversity of interests and considerations to take into account (and, lest we forget, a legal obligation to factor in traffic and trade concerns), it is arguable that he struck a decent balance, and, in not being too quick, also allowed China to participate with relative transparency and openness. This is a point well worth emphasizing: for China to cooperate, careful and pragmatic diplomacy may be required. To yell from the sidelines that the who should come down harder on China for possibly having hidden relevant data early in the crisis may be therapeutical, but is unlikely to achieve China’s cooperation. And by the same token, while it may be the case that the who could have learned from Taiwan’s experience (Taiwan reportedly managed to contain the outbreak relatively quickly and smoothly), the sensitivity of Taiwan’s legal position is a matter no responsible Director-General can afford to be insensitive to.
At any rate, securing Chinese cooperation must be considered more helpful, by any standard, than consistently referring to the virus as the ‘China virus’ while spending crucial weeks downplaying the situation or presenting it as a political conspiracy, as some other global leaders have done. In a world where practical wisdom among political leaders proves to be a scarce resource, it is comforting to realize, on current evidence, that the second most difficult job in the world seems to be in reasonably capable and wise hands.
5 By Way of Conclusion
The covid-19 crisis illustrates not only that much depends on the personalities of our political leadership, but also illustrates that international organizations, such as the who, tend to distribute costs and benefits, no matter what they do. The who is not alone in this: few examples could be more illustrative than the announced US withdrawal from the upu because upu postal rates worked to the disadvantage of US companies, followed by a change of heart after upu had amended its rates.33
International organizations, obviously, manifest international cooperation. But so do treaties, and there is merit in considering why on occasion the treaty form is chosen, and why sometimes the organization form is preferred. This points towards studying what it is organizations generally do: they regulate, manage and, in the process, allocate costs and benefits.34 The covid-19 crisis makes this highly visible: it is not just the content, but also the timing of the who’s decision-making that is of vital importance to many interested parties. And that is something that is difficult to realize employing the traditionally available framework for studying the work of international organizations.
The author is indebted to Luca Bonadiman, Gian Luca Burci and two anonymous reviewers for helpful comments on an earlier draft.
I will use the male form for the simple reason that currently the Director-General is a man: Dr Tedros Adhanom Ghebreyesus.
Here a nuance may be appropriate: much of the social science literature on international organizations is aware of the distributive function, but tends to discuss it in terms of the interests of states, employing a highly state-centric perspective. This, I think, is at best only partly correct. As I will briefly outline below, states are better seen as conduits for private interests, rather than as interest-holders in their own right. A beginning of a fuller statement is Jan Klabbers, ‘Rules, Institutions and Decisions: Taking Distribution Seriously’ in Gunther Hellmann and Jens Steffek (eds), Essays on Praxis (working title) (forthcoming).
I trace the origin and development of this line of thinking in Jan Klabbers, ‘The ejil Foreword: The Transformation of International Organizations Law’ (2015) 26 European Journal of International Law 9. A further discussion of how this structurally hampers discussions on the accountability of international organizations is Jan Klabbers, ‘Schermers’ Dilemma’ (2020) 31 European Journal of International Law (forthcoming).
Whether the assumption survives closer scrutiny is beside the point: it operates, and has a strong hold on our imagination. On the role of such topoi in our reasoning, see Friedrich Kratochwil, Rules, Norms, and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (Cambridge University Press 1989).
Inis L Claude Jr, Swords into Plowshares: The Problems and Progress of International Organizations (2nd edn, Random House 1959).
Nagendra Singh, Termination of Membership of International Organisations (Stevens and Sons 1958) vii.
Stefan Talmon, ‘The United States under President Trump: Gravedigger of International Law’ (2019) 17 Chinese Journal of International Law 645.
This is a familiar point for institutional economists, but the role played by the law of international organizations remains unexplored. My own thinking on this point owes much to Jon Elster, Local Justice (Russell Sage Foundation 1992), and Douglass C North, Institutions, Institutional Change and Economic Performance (Cambridge University Press 1990).
Constitution of the World Health Organization (adopted 22 July 1946, entered into force on 7 April 1948) 14 unts 185 (who Constitution).
The emergency powers of the who are lucidly discussed in José Alvarez, The Impact of International Organizations on International Law (Martinus Nijhoff 2016) ch iv.
Under the who Constitution (n 10) arts 21 and 22, the who’s plenary (the World Health Assembly) can adopt regulations which enter into force for member states once adopted unless the member state expressly opt out.
Gian Luca Burci, ‘The Outbreak of covid-19 Coronavirus: Are the International Health Regulations Fit for Purpose?’ (ejil:Talk!, 27 February 2020) <www.ejiltalk.org/the-outbreak-of-covid-19-coronavirus-are-the-international-health-regulations-fit-for-purpose/>.
Abigail C Deshman, ‘Horizontal Review between International Organizations: Why, How, and Who Cares about Corporate Regulatory Capture’ (2011) 22 European Journal of International Law 1089.
Dutch newspaper De Volkskrant reports that klm staff has been channeled to unemployment for 70% of the working time. See Peter van Ammelrooy ‘Crisis gaat voor klm van beroerd naar erger: personeel voor 70 procent de WW in’ de Volkskrant (Amsterdam, 16 March 2020) <www.volkskrant.nl/nieuws-achtergrond/crisis-gaat-voor-klm-van-beroerd-naar-erger-personeel-voor-70-procent-de-ww-in~ba6e415c/>.
unwto, ‘covid-19: Putting People First’ (updated 7 April 2020) <www.unwto.org/tourism-covid-19-coronavirus>.
This builds on Jan Klabbers, ‘The Normative Gap in International Organizations Law: TheCase of the World Health Organization’ (2019) 16 International Organizations Law Review 272.
The World Health Assembly voted to terminate the regional headquarters in Egypt after Egypt had concluded a peace agreement with Israel in the late 1970s. This, in turn, led to an important advisory opinion of the icj: Interpretation of the Agreement of 25 March 1951 between the who and Egypt  icj Rep 73.
For a fine general overview, see Matthias Goldmann, Internationale öffentliche Gewalt (Springer 2015).
Keynes was well-aware of the possibilities of exercising influence this way, dedicating his study of the Versailles settlement a century ago to ‘the formation of the general opinion of the future’: see John Maynard Keynes, The Economic Consequences of the Peace (MacMillan 1920) 279.
Thomas M Kuhn, The Structure of Scientific Revolutions (2nd edn, University of Chicago Press 1970). Kuhn, incidentally, employed a very strict definition of ‘paradigm’, suggesting that in the social sciences and humanities paradigms were rare, perhaps non-existent, which in turn entails that expert knowledge in those fields tends to be competitive rather than paradigmatic.
Jan Klabbers, ‘Conceptualizing Expert Accountability: Towards Virtue’ in Alessandra Arcuri and Florin Coman-Kund (eds), The Accountability of Experts (working title) (Routledge, forthcoming).
Koppl, for example, conceptualizes the expert as anyone who given an opinion for a fee, but surely this is too broad. See Roger Koppls, Expert Failure (Cambridge University Press 2018).
A sophisticated discussion of the work of some of Tedros’ predecessors at the who in terms of ethics is Guilherme Vasconcelos Vilaca, ‘Virtue and Leadership in the World Health Organization’ in Guilherme Vasconcelos Vilaca and Maria Varaki (eds), Ethical Leadership in International Organizations: Concepts, Narratives, Judgment and Assessment (Cambridge University Press, forthcoming).
Some connections on what this entails for legal thought are usefully sketched in Amalia Amaya and Ho Hock Lai (eds), Law, Virtue and Justice (Hart 2013); as for institutions, see Maxwell Cameron, Political Institutions and Practical Wisdom (Oxford University Press 2018).
Having a good press can be deceptive, of course, as this can be manipulated with the help of spin doctors and the use of marketing techniques.
Carlijne Vos, ‘Charmant en gedreven: Tedros, het gezicht van de internationale strijd tegen corona’ de Volkskrant (Amsterdam, 14 March 2020) <www.volkskrant.nl/nieuws-achtergrond/charmant-en-gedreven-tedros-het-gezicht-van-de-internationale-strijd-tegen-corona~ba062c4e/>.
Tedros is keen on the internal goods associated with the practice of health management, rather than the external goods. See Alasdair MacIntyre, After Virtue: A Study in Moral Theory (2nd end, Duckworth 1985).
‘Tedros Adhanom’ (Wikipedia) <en.wikipedia.org/wiki/Tedros_Adhanom#The_Global_Fund_to_Fight_AIDS,_Tuberculosis_and_Malaria_and_its_reform> (accessed 18 March 2020).
upu, ‘US Officially Revokes Intent to Withdraw from Postal Union during Washington D.C. Visit of upu’s Director General’ (16 October 2019)