Brenda Lucero Huamán C.
Pontificia Universidad Católica del Perú
The whole world is currently living the Covid-19, a pandemic that has once again put forward the discussion about what is understood, or should be understood by “sovereignty”. Indeed, a pandemic is a global problem that represents a challenge and the need to acknowledge state sovereignty and international cooperation as non-exclusive concepts.
In fact, the global system that regulates infectious diseases is under the control of the States and the World Health Organization (WHO), an international organization that, as such, respects the sovereignty of its member States. Thus, we should wonder why the WHO labor in the fight against Covid-19 is being highly criticized and the legitimacy of those criticism.
We argue that although the WHO mandate has been broadened by different regulations and international instruments, as the International Health Regulations of 2005 (IHR), currently, when it comes to face a health emergency of international relevance, the WHO cannot force States to act in a particular way. States retain their sovereignty, within which they decide the appropriate measures to combat Covid-19.
WHO role during pandemics
The WHO is an international organization created by the “Constitution of the World Health Organization” of 1946 (WHO Constitution), a treaty that came into force in April 1948. Furthermore, this is an international organization of cooperation with a universal vocation, which owns the directing authority on international health issues within the United Nations system.
In this sense, it is relevant to reflect upon the WHO nature in terms of the WHO Constitution provisions. We must remember that in the international community the WHO participates as a subject of international law. The WHO complies with the characteristics or elements, collected and accepted by the doctrine, to qualify a certain entity as an international organization, since there is no authoritative definition of international organizations.
Indeed, we verify that the WHO has, a voluntary origin that is reflected in its creation by a constitutive treaty, which establishes its structure, functions and powers. We must consider that the aim of the WHO is “the attainment by all peoples of the highest possible level of health.” Also, it has an essentially interstate membership; it has permanent bodies that are independent from those of their member States (for example, the Secretariat), and has an autonomous international legal personality as distinct from its creators.
In this sense, undoubtedly the WHO is an international organization of a universal character that “act as the directing and co-ordinating authority on international health work”. Likewise, among the main roles it plays are “to assist Governments, upon request, in strengthening health services”; “to furnish appropriate technical assistance and, in emergencies, necessary aid upon the request or acceptance of Governments”, “to propose conventions, agreements and regulations, and make recommendations with respect to international health matters” and, in general to take all necessary action to attain the objective of the organization.
We note that the actions of the WHO are framed within what is allowed in the WHO Constitution, the IHR, or requested at the time, by the States. Although the importance of these treaties, they don’t impose concrete obligations to States in the context of pandemics, just general ones. The WHO in no way may act against the functions assigned by the States. Additionally, we must remember that the international organizations in general, and particularly the WHO, are financially dependent on the quotas of the member states, as well as on donations from private actors.
Based on the above, we identify not only the importance of the WHO, but also its main weakness. In effect, since the WHO is a subject of international law created by States, although it has autonomy and will of its own, its greater or lesser margin of intervention in the international community and worse or better functioning in it will depend highly on whether the States continue to see in the WHO as a useful mechanism to channel their common particular interests, which they cannot achieve individually.
States sovereignty during Covid-19
We know that States have full and exclusive sovereignty over its population, resources and events that occur within their territory. Moreover, it exists the principle of non-intervention in the internal or external affairs of other States, which owns the category of jus cogens. In this context, we warn that state sovereignty is being challenged by the Covid-19, since it is a virus that transcends territorial borders and threatens a higher good: international public health. This is a global problem that need global solutions.
However, ¿what is really happening? It has even suggested that one of the main difficulties to respond jointly and successfully to Covid-19 is precisely state sovereignty. We hear about, for example, a new form of sovereignty, “strategic sovereignty”, in which sovereignty is understood as power and responsibility that is reflected in a primary concern of the State for the protection of its own population and its essential assets, such as food products and medical supplies. However, an international community fragmented in different strategic sovereignties seems incompatible with globalization, which is already present in the 21st century.
Undoubtedly, in previous experiences, as well as in the present pandemic, we have seen that the most logical solution of “isolating the State or territories where the viruses are found” has shown limited success. The closure of borders, travel restrictions, “quarantines” in the entire population, even reinforced with military force, have proved to be unsustainable and weak measures to prevent the spread of the virus.
This is what is referred to as ‘the sovereignty problem’ in ensuring global health security. Authors as Gostin set forth two major aspects of sovereignty that restrain cooperation to deal with global problems, as pandemics. Firstly, the lack of political will and prioritization to be part of multilateral spaces of cooperation (forums, signing of multilateral treaties, membership in international organizations, among others) by political leadership. This aspect tends to be supported and sustained by the refusal of those spaces by an important sector of the population of a certain State, who see in them the deployment of unnecessary human and economic efforts. It is about right-wing nationalisms that are rising and constraint the promotion and consolidation of important multilateral spaces, such as the WHO.
Secondly, it is pointed out the lack of national capacity which is witnessed in weak health systems, which are not prepare to deal with pandemics as the Covid-19. It is known that in many States, especially in developing States, the budget allocated for public health is very limited. As long as this persists, some States will continue to use their national sovereignty to justify the non-compliance with the norms of international law acquired by themselves as a result of multilateral cooperation spaces.
It is important to recall that, being member of an international organization, such as the WHO, implies important financial obligations. Therefore, it generally exists a relationship between crisis situations (economic, political and/or social) within a State with the impossibility to take part and comply with global dynamics.
In effect, the fact that the main subjects of international law (the States) have financial problems to maintain adequate health systems and participate in international cooperation mechanisms, hinders the effective operation of these spaces. Such is the case of the WHO, whose financing problems have been evident in this context. Indeed, recently, the US, its main contributor (14.67%), after threaten to withdraw its financial contribution, it has finally notified the UN and Congress its pull out of the WHO and redirection of its funds elsewhere ¿The reasons? The U.S accuses the WHO of being under China’s control. It is important to highlight that, despite its global importance, the largest contributors of the WHO are not states. After the US, the largest contributors are civil society organizations, the Bill & Melinda Gates Foundation (9.76%) and the Global Alliance for Vaccines and Immunization – GAVI Alliance (8.39%).
Due to these two problems (the lack of political will and prioritization to be part of multilateral spaces of cooperation and economic, social and politic internal problems) multilateral spaces developed in the last 50 years have been stopped. Therefore, much is being said about a multilateralism crisis and a global governance that is being questioned for its very limited results. We must consider that, even before the pandemic, it has been difficult for States to cooperate, for example, to face another global problem such as climate change.
On the basis of the above, we can argue that the nature of the WHO and the power left to the states sovereignty doesn’t help to achieve a global strategy in order to end with a pandemic as the Covid-19. We need more binding instruments at an international level as well as a better coordination and cooperation between States. Nowadays the implementation of the WHO measures and recommendations still remains in the hands of the states. The WHO role when facing Covid-19 must be understood in this complex background.