Hub santé - politique, organisations et droit

The Pandemic as a Catalyzer to Renewing WHO’s Normative Leadership

In February 2021, the World Health Organization (WHO) positioned itself against the use of vaccination passports for international travel due to ethical and inequity concerns. Yet, in March, Europe and several countries were already planning their introduction. On March 12, 2021, Canadian Prime Minister Justin Trudeau said vaccine passports might eventually be considered to facilitate the resumption of international travel, but only if there was “reliable scientific evidence” for their effectiveness, as emphasized by the Government of Canada. Besides, some experts believe that “market forces” and independent organization could speed the use of vaccine passports by imposing a proof-of-vaccination system for access to public and private spaces.

This scenario raises urgent questions: To what extent does the WHO influence political decision-making processes on matters of public health? As the only international intergovernmental organization responsible for global health, what leadership does the WHO actually exercise, notably during and after a pandemic?  

a. Research focus and questions

An interdisciplinary team from the University of Montreal, headed by Professor Catherine Régis from the Faculty of Law, is currently working on an international research project to answer these questions. It explores the normative leadership capacities of the WHO, focusing in particular on: (1) the organization’s ability to develop standards to guide Member States in their public health decisions and actions, and (2) its power to ensure these standards are implemented. In general, it comes down to asking: What is the WHO’s normative effectiveness? 

Effectiveness should be understood here as the capacity, through normative action, for the WHO to influence the development of legal norms within States. Similarly, the term “normative action” implies both binding and non-binding norms produced by the WHO, representing the organization’s full range of normative powers under its Constitution. The research will therefore study the impact of the WHO’s normative action on the internal norms of countries, and more specifically on their domestic laws, regulations and case law. Given the wide scope of this task, the research does not aim to be comprehensive; it focuses on eight Member States (Brazil, Canada, Costa-Rica, France, Israel, New-Zealand, Switzerland and the USA). This project will study the influence of the WHO’s pluralistic norms as it relies on a specific landing ground for influence, namely the law, rather than other potential domestic norms such as public policies and directives. The analysis will focus on both the process of influence – such as economic, political, organisational factors – and its outcome – whether and how WHO norms are expressed in a country’s legal system. 

b. Research objectives

This project has three main objectives. Firstly, it aims to address the lack of evidence on the influence of the WHO’s normative action on Member States (WHO, 2017). There are various reasons for this lack of evidence. The monitoring and control mechanisms of the WHO’s normative instruments are mainly based on self-evaluation reports submitted by Member States. However, the quantity and quality of the data they provide is variable. Not all states provide data on the results achieved following the adoption of normative instruments, the quantity of information differs between states (WHO, 2016), and reports do not generally include case law. The quality of data is questionable, as the state remains responsible for the data provided. The poor quality and reliability of data have been highlighted previously, including in studies conducted by expert groups in charge of evaluating the effectiveness of the WHO Global Code of Practice for the International Recruitment of Health Personnel and International Health Regulations (WHO, 2015 a); 2015 b)). In the latter case, the expert group recommended avoiding exclusive reliance on self-assessment. The WHO acknowledges the inadequacy of current evaluation mechanisms for obtaining a reliable and comprehensive vision of its influence on the domestic laws of Member States.

Secondly, the project aims to examine the normative effectiveness of law produced by international organizations.  At a time when the role of these organizations is changing, in particular due to the increasingly fuzzy centrality of states that accompanies the integration of new international actors (Büthe & Mattli, 2011), this reflection becomes particularly important. The WHO, in particular, is in the midst of reforms that will determine its future activities and its position in global health governance (Alvarez, 2020; Gostin & Wetter, 2020; Kastler, 2019); this was underway before the pandemic, and has become more urgent since. The pandemic has imposed a stress test on the WHO, revealing both its strength as a global health leader as well as some of its weaknesses, especially regarding its normative role (Régis et al., 2021). More broadly, the research project will also contribute to the debate – which has been ongoing for several years and was rekindled by the current pandemic context – regarding the future of international organizations as an expression of multilateralism.  

Finally, this project arises in a context where international regulation needs to measure up to the scale and complexity of current global health challenges, including pandemics such as SARS-CoV-2, the prevalence of chronic diseases and antimicrobial resistance.

More concretely, in order to respond to these objectives, this research will: 

  • Assess how effectively domestic law considers the WHO’s normative instruments, from a quantitative and qualitative point of view; 
  • Analyze the process of introducing WHO standards at national level; 
  • Develop theoretical knowledge on the normative effectiveness of international organizations by focusing on the case of the WHO and;
  • Use this data to make recommendations to decision-makers, judges, managers and the WHO in order to improve the mobilization of WHO norms in national law and the development of effective international normative strategies to support global health governance.

c. Methodology

The methodological framework is structured around 4 phases:  

  • Phase 1: Interpretative analysis of four areas of scholarship and their contribution to knowledge on the normative effectiveness of the WHO. This process will inform a theoretical model to interpret the empirical analyses of subsequent phases. 
  • Phase 2: Study of the occurrence of references to WHO normative instruments in eight case studies conducted in target member States.
  • Phase 3: Semi-structured interviews in target countries and with key WHO informants to better grasp the conditions that shape the use of WHO norms. This phase seeks to better understand the process of integrating WHO norms in domestic law, and identify the institutional, political, social and organizational considerations that influence reference to or use of WHO norms.
  • Phase 4: Comparative analysis of case studies across countries to revisit the initial theoretical model of the WHO’s normative effectiveness. The researchers will then propose a more integrative model based on comparative and cross-case analysis. This refined model will provide a basis for recommendations to enhance the WHO’s normative leadership.

d. Interdisciplinary and international research team

The project benefits from an interdisciplinary and international team of researchers

Catherine Régis, principal investigator, is a full professor at the Faculty of Law of the University of Montreal, holder of a Canada Research Chair in Health Law and Policy and co-director of the Health Policy, Organizations and Law Hub (H-POD). She is a specialist in health law and policy and global health law.

Jean-Louis Denis is a full professor in the Department of Health Management, Evaluation and Policy at the University of Montreal’s School of Public Health, holder of the Canada Research Chair in Health System Design and Adaptation (Level 1) and co-director of the H-POD.  He is a Visiting Professor in the Department of Management at King’s College London. 

Miriam Cohen is a full Professor at the University of Montreal and a researcher at the Public Law Research Centre and the International Centre for Comparative Criminology. She is a specialist in international human rights law and has a solid and rich experience in international organizations.  

Pierre Larouche is a full professor and Vice-Dean at the Faculty of Law of the University of Montreal and is a researcher at the International Business and Trade Centre.  

Stéphanie Caddedu is a post-doctoral fellow at H-POD, at the Research center of the CHUM (CRCHUM) and at the Faculty of Law of the University of Montreal. Her expertise is in qualitative research methodology and bottom-up, frugal and responsible innovations. 

Gaëlle Foucault is a doctoral student at the Faculty of Law of the University of Montreal and a research assistant at the H-POD.  She is also associated with the CERIUM.

This international project involves twelve other scholars who were invited to collaborate on this project as experts of their local judicial systems, including: Paula Wojcikiewicz Almeida (Brazil); Hugo Munoz (Costa Rica); Florian Kastler (France); Pamela Laufer-Ukeles (Israel); Colin Gavaghan and Jeanne Snelling (New-Zealand); Olivier Guillod, Mélanie Levy and Sandra Hotz (Switzerland);  Kashish Aneja, Katie Gottschalk and Katherine Ginsbach (United States).

To study local contexts and legal systems, these teams collaborate with research assistants working in various languages: English, French, German, Hebrew, Portuguese and Spanish.

Conclusion:  

The current pandemic has emphasized the essential role of the WHO in global health security, and has revealed strengths and weaknesses in the WHO that highlight the need to ensure its evolution and adaptation to new realities and changing needs of countries and populations. This project is part of a broader quest to strengthen global health governance in an era where growing interdependence between countries calls for the adoption of international norms that generate strong support.

For more information on this project, visit H-POD.

List of references:

Alvarez, J. E. (2020). The WHO in the Age of the Coronavirus. American Journal of International Law, 114(4), 578–587. https://doi.org/10.1017/ajil.2020.70

Bartenstein, K., & Landheer-Cieslak, C. (2015). Chapitre 4 – Pour la recherche en droit: Quel(s) cadre(s) théorique(s) ? In L’évaluation de la recherche en droit / Assessing research in law (Bruylant, pp. 83–116). https://www.larcier.com/fr/l-evaluation-de-la-recherche-en-droit-assessing-research-in-law-2015-9782802746515.html

Brändli, C. (2012). The New Global Rulers: The Privatization of Regulation in the World EconomyBüthe, Tim and Mattli Walter Princeton, NJ: Princeton University Press (2011), 312 p., ISBN 978-0-691-14479-5. Swiss Political Science Review, 18(4), 538–540. https://doi.org/10.1111/spsr.12008

Gostin, L. O., & Wetter, S. (2020). Using COVID-19 to Strengthen the WHO: Promoting Health and Science Above Politics (SSRN Scholarly Paper ID 3627672). Social Science Research Network. https://doi.org/10.2139/ssrn.3627672

Kastler, F. (2019). Le rôle normatif de l’Organisation mondiale de la santé. https://www.cultura.com/le-role-normatif-de-l-organisation-mondiale-de-la-sante-tea-9782140119064.html

Regis, C, Cohen, M, Larouche, P, Denis, J-L, Cadeddu, S, et Foucault, G « A stress test for the World Health Organization (WHO) in a pandemic world: what can we hope for the future? (sous presse) dans Jean-Louis DENIS, Catherine RÉGIS et Daniel WEINSTOCK (dir.), Pandemic Societies, McGill-Que