The WHO: The Guardian of Human Rights during Pandemics?

On May 18, President Trump tweeted a 4-page letter addressed to the WHO, threatening to cut funding to the organization and reconsider the United States’ membership within it. One of the reasons for these threats was the WHO’s reaction to China’s alleged human rights violations. President Trump accused the WHO of ‘being conspicuously silent [ with ] respect to the closure of Dr Zhang’s lab’ after having notified the Chinese authorities about sequencing the genome of the virus. The president also criticized the WHO for not commenting on China’s ‘discriminatory treatment of Africans related to the pandemic in Guangzhou and other cities in China’.

These accusations raise the following question: Does the WHO have the power under the International Health Regulations (IHR) to review states’ compliance with human rights obligations in the context of a pandemic response? The WHO Director General has indeed issued his general remarks on the importance of respecting human rights amid the COVID-19 response, but can the WHO do more by monitoring states individually?

This question has not received full attention yet, but Michael Bekker implies that the WHO does not have the legal authority to monitor states’ compliance with human rights obligations. This view seems to be shared by the Review Committee on the Functioning of the IHR. The committee’s report on the H1N1 pandemic (2011) stated that the WHO “does not have a mandate” to investigate whether particular measures adopted by states to address the pandemic constitute violations of article 3 of the IHR, which obliges states to respect human rights during its implementation. This opinion implies that an inquiry commission established by the WHO, as requested in the COVID-19 Response Resolution, would also not have legal authority to evaluate states’ compliance with human rights obligations when implementing the IHR.

This post demonstrates, on the contrary, that the WHO has the power to monitor and evaluate states’ compliance with human rights obligations in the context of a COVID-19 response. The legality of this power will be assessed under the implied powers doctrine in light of the absence of an explicit empowering provision in the IHR. However, before doing that, I would like to emphasize that the legality and practicality of this power are two different questions, with this post focusing mainly on the former.

The Interconnectedness of Health and Human Rights

As stated by the International Court of Justice (ICJ) in the Reparations advisory opinion, it is generally accepted that:

“under international law, that organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties.” (p.182)

Accordingly, to claim that the WHO possesses an implied power under the IHR to monitor states’ compliance with human rights obligations, one must verify that this power is necessary for the WHO’s responsibility for the ‘management of the global regime for the control of international spread of diseases”. (Foreword to the IHR)

It is not contested that the right to health is inextricably linked to other human rights. This interconnection was mirrored in Article 1 of the WHO Constitution which mandates the WHO with the objective of the ‘attainment by all peoples of the highest possible level of health’ with health being defined in the preamble as a ‘state of complete physical, mental and social well-being and not merely the absence of disease or infirmity’.Nevertheless, the inclusion of this definition of health and any reference to “social well-being” was excluded, at the request of a number of state delegations (A/2929 [1955] p.320-321, A/C.3/L.589 [1957]), from article 12(1)(then article 13) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), so that the article stipulates only that ‘the States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’.

This does not, however, denote a rejection of the interconnectedness between the right to health and other human rights. The Committee on Economic, Social, and Cultural Rights has affirmed in general comment 14 that: 

“the reference in article 12.1 of the Covenant to “the highest attainable standard of physical and mental health” is not confined to the right to health care. On the contrary, the drafting history and the express wording of article 12.2 acknowledge that the right to health embraces a wide range of socio-economic factors that promote conditions in which people can lead a healthy life, and extends to the underlying determinants of health, such as food and nutrition, housing, access to safe and potable water and adequate sanitation, safe and healthy working conditions, and a healthy environment.” (para.4)

The interconnectedness between the right to health and other human rights was recognized as well in the 1978 Alma-Ata Declaration and brought into focus by Dr Jonathan Mann, head of the WHO Global Program on AIDS at that time, in the advent of the international response to the HIV/AIDS pandemic in the 1980s. This has driven the WHO to adopt a ‘human rights-based approach to health’ (HRBAH), which, according to the 25 Questions and Answers on Health and Human Rights document published by the WHO, refers to the processes of:

1. Using human rights as a framework for health development.

2. Assessing and addressing the human rights implications of any health policy, programme or legislation.

3. Making human rights an integral dimension of the design, implementation, monitoring and evaluation of health-related policies and programmes in all spheres, including political, economic and social. (p.18)

The HRBAH is also clearly reflected in the IHR, where article 3 stipulates that ‘The implementation of these Regulations shall be with full respect for the dignity, human rights and fundamental freedoms of persons’.

The COVID-19 pandemic has also manifested the interconnectedness between human rights and the right to health. There have been numerous reports pinpointing the implications that human rights violations have on the ability to fight the pandemic (e.g., here, here, here, here and here).

In light of the aforementioned, and given the fact that pandemics know no borders- leaving no one safe until everyone is safe, therefore states’ compliance with human rights obligations is necessary not only to fight the pandemic internally, but also to control the international spread of the disease. This in turn means that monitoring state compliance with human rights obligations is necessary to realize the WHO’s function during pandemics. However, the necessity of a power does not always lead to a conclusive answer about its legality under the implied powers doctrine.

The WHO and Other Human Rights Bodies

The ICJ previously decided in the WHO Nuclear Weapons advisory opinion that the WHO lacks the implied power to discuss the legality of the use of nuclear weapons in an armed conflict on the grounds of ‘the logic of the overall system contemplated by the Charter’. In that context, it stated the following:

“If, according to the rules on which that system is based, the WHO has, by virtue of Article 57 of the Charter, ‘wide international responsibilities’, those responsibilities are necessarily restricted to the sphere of public ‘health’ and cannot encroach on the responsibilities of other parts of the United Nations system.” (para.26, p.80)

However, this decision has been widely and rightly criticized for ignoring the fact that the powers of international organizations overlap (e.g., here and here). Therefore, the overlap between the powers of international organizations cannot be a legal impediment to claiming implied powers so long as those powers are necessary to fulfil the organization’s functions (unless of course this power lies exclusively within the ambit of the organization, such as the United Nations’ power to authorize the use of force).

I do not believe that monitoring human rights is an exclusive power of human rights bodies. It is noteworthy that the WHO has engaged in a ‘lite’ version of monitoring states’ human rights compliance while guiding national governments to integrate human rights into their health policies, plans, and health-related laws and provisions (e.g., the 2016 ‘Innov8 approach for reviewing national health programmes to leave no one behind’). The WHO has also collaborated with human rights bodies to produce guidelines and strategies regarding the right to health and health-related rights (e.g., the report on Leading the Realization of Human Rights to Health and Through Health issued by a high-level working group established by both the WHO and the Office of the United Nations High Commissioner for Human Rights).

In light of this, an implied power to monitor states’ compliance with human rights obligations does not ‘encroach on the responsibilities’ of other bodies that monitor human rights, especially because the WHO’s monitoring powers do not comprise all aspects of human rights but only those related to health.

Conclusion

This post has demonstrated that the WHO has implied power under the IHR to monitor states’ compliance with human rights obligations during pandemics. I do not perceive this power to be exercised as a naming-and-shaming tool that sometimes backfires. Rather, this power would be performed in the course of communications between the WHO and states, by recommending the reversing of practices that violate human rights and negatively affect a pandemic response, including health measures that are disproportionate or unnecessary. In pursuing this monitoring power, the WHO has the legal authority, under Article 14 of the IHR, to coordinate with the UN Human Rights Office of the High Commissioner and the special procedures of the Human Rights Council in identifying the potential violations of human rights.

That said, it seems that the WHO prefers not to practice this power in whatever form. This could be quite understandable in light of the inseparable political aspect of human rights. Imagine President Trump’s response if the WHO had asked him to reverse the immigration decisions he had adopted amid COVID-19 because they exacerbate the response to the international spread of the disease. This sheds some light on the inability of the IHR, absent an enforcement mechanism, to provide a comprehensive response to the international spread of diseases.